Environmental protections enshrined in law protect our nation’s natural resource, but environmental laws are a relatively new development in our nation’s history. Environmental laws and the regulatory structures that enforce them have developed as we, as a nation, have collectively recognized that pollution and environmental contamination can pose a threat to our safety, health, and the security of our natural resource. In this article, we’ll seek to provide some basic background information about environmental law in the United States, and also take a brief look at the role that environmental litigation plays in the development of new environmental laws as well as the enforcement of existing environmental laws.
The Crucial Role of Environmental Laws
Environmental laws play an increasingly important role in keeping our national resources clean and free from pollution. Environmental laws and regulations are also critical for maintaining the safety of our food and water supplies, as well as for protecting our health and well-being and the health and well-being of future generations. The need for a robust regulatory framework and legal structure to limit the exposure of both the environment and our bodies to harmful chemicals or toxins is much more pressing today than it has been in the past. Environmental pollution is all around us, in the air we breathe, the soil we grow our crops in, and the water we drink. Limiting these toxins to thresholds safe for our daily lives is essential to ensuring that future generations will have access to both the natural resources we do today, as well as the same quality of life.
There are multiple levels of environmental law that can each have an impact on our lives. Environmental law in the United States has been shaped by Congress, the President, Agencies, and Courts. Federal environmental laws are overarching and supersede environmental laws put forth by individual states. The primary regulatory body responsible for creating environmental regulations and enforcing them is the Environmental Protection Agency (EPA). The EPA was established by presidential order in 1970, at a time when there was a heightened awareness of environmental pollution and the movement of toxins throughout the environment and our bodies.
The scope of the EPA’s efforts to monitor environmental is guided by adherence to directives set forth by Congress. These include the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, and the Endangered Species Act. Each of these directives governs a specific subset of toxins and sets forth rules and regulations for how to limit the environmental exposure of those types of toxins. The Clean Air Act handles toxins in the air, the Clean Water Act covers toxins in the water, the Resource Conservation and Recovery Act covers pollution of the soil, and the Toxic Substances Control Act broadly refers to all toxins. Taken together, these statutes were created to help protect the health of the public. These five statutes regulate pollution from a variety of sources, including industrial, governmental, and equipment that we use on a daily basis like automobiles and air-conditioners. The scope set forth in the statutes enables the EPA to regulate pollution of air, water, and land throughout the United States, and to hold accountable organizations, businesses, or industries that pollute.
In addition to federal agencies like the EPA and the associated regulations that they enforce, each state has their own environmental regulations. This adds to the complexity of the legal landscape surrounding environmental law, while also making it more difficult to comply for businesses and companies operating under the umbrella of both federal and state regulations. State environmental laws can serve to supplement gaps in existing federal regulations, to protect specific natural resources within the state, or to set specific requirements for businesses or individuals within the state that are more strict than federal regulations. For example, the largest environmental regulation in California is the California Environmental Quality Act (CEQA). A couple of the main points of the act are to require Environmental Impact Reports (EIR) to be completed for proposed projects. The CEQA also tasks governmental agencies within the state to develop processes and standards to protect wildlife, plants, and general environmental health within their communities. The specific requirements of the CEQA supplement the federal environmental law regulations, except where the federal requirements are more stringent.
In addition to environmental law at the federal and state level, environmental tort law has a substantial influence on how environmental laws at the state level have been formed over time. The tort system is not normally associated with environmental law, yet tort law has contributed to the development of many of the environmental regulations that we are familiar with today. Gaining a better understanding of environmental tort law can help inform individuals looking to answer the question, “what is environmental law?” Prior to the more aggressive environmental law regulations put forth by the federal and state government, there was relatively little in the way of common law, or court-made law, concerning the environment.
First, an understanding of what a tort is helpful for understanding the effectiveness of utilizing tort law to combat pollution. The word tort comes from the Latin word tortum, meaning a wrong or injustice. Unlike criminal law, tort law is the means through which a private individual can seek compensation for an alleged injury or wrong done to them by another individual. Put another way, the punishment imposed in a tort case doesn’t result in a liability to the state, such as incarceration, but instead results in a liability to the plaintiff that brought the suit. Tort law serves as a means for individuals to file suit based on a social wrong that has been inflicted on them, and to receive compensation for that wrong. The tort law system runs alongside the criminal law system, so a person who is found guilty of felony battery could be sued and found liable for the tort of battery.
The importance of tort law to environmental law is that tort law can serve as a secondary layer of a deterrent to behavior by organizations or governments that leads to environmental pollution. Because tort law cases create a direct line between the plaintiff and the defendant they can allow individuals to file suit against companies that have violated federal or state regulatory statutes that led to their harm. Unlike in criminal law cases where a defendant essentially owes a debt to the state or federal government if found guilty, in a tort law case the defendant would be required to pay back whatever compensation was awarded to the individual. Environmental tort law cases can involve hundreds or even thousands of plaintiffs if they are a class-action lawsuit, and indeed can involve multiple defendants in the same suit. Although these cases are difficult to win, they can serve as a powerful economic incentive for organizations and businesses to operate within the confines of the law.
The Role of Environmental Lawyers
Environmental lawyers fill an important role when it comes to the enforcement of environmental law. Environmental lawyers can be involved in litigation for a number of reasons. First, lawyers specializing in environmental law are often retained by businesses in order to offer advice on how they can comply with local, state, and federal environmental laws. Second, environmental lawyers can represent individuals and communities in lawsuits against polluters, holding them accountable for negligent environmental pollution and securing monetary compensation for the group they are representing. Many lawyers specializing in environmental law may also work for federal, state, and local governments, and work to hold polluters accountable, craft regulations that will have a meaningful impact on the health of individuals and the environment, and work with local industry to ensure that they attain and maintain compliance.
Environmental lawyers can also work on behalf of large organizations or businesses that feel that state or federal environmental regulations are overreaching. For example, if a state level environmental regulation requires extensive permitting that is burdensome, an organization might context that permitting to determine the validity of the requirement in court. Although it may not seem important or glamorous, contesting environmental regulations is an important facet of how environmental law has developed over the last four decades since the establishment of the EPA. Through a back-and-forth tension between industry and oversight agencies, workable and useful environmental regulations have been crafted that protect our natural resources while also allowing industry to continue to flourish. Environmental lawyers representing businesses or organizations also work closely with federal and state regulatory agencies during the development phase of statutes, ensuring that rules are created fairly that will benefit both the environment and industry.
The role of environmental lawyers is broad and can vary depending on the industry they represent, where they live, and what types of environmental law they specialize in. Environmental litigation plays an important role in keeping industries and businesses accountable to environmental laws and regulations. At the same time, environmental litigation can ensure that requirements placed on businesses, organizations, and individuals by state and federal authorities are legal, within their authority, and are not unduly onerous.