Environmental Laws and Regulations in the US

Environmental Laws and Regulations in the US

Creating Laws and Regulations Law proposed by a member of Congress (“Bill”) If bill is approved by House and Senate, goes to POTUS: sign, veto, pocket veto If signed becomes an “Act of Congress” Act is standardized in language by the House (the “statute”) and published in the US Code (USC)

Making the Act Work Law may be intentionally or unintentionally vague or ambiguous ◦ Example: speed limit on a given street; tuition at PSU But law will be specific about what agency is responsible Most environmental laws delegated to US EPA Clean Water Act: Section 404 dredging permits issued by US Army Corps of Engineers, with the assistance and coordination of EPA

“Rulemaking”: Creating Regulations Congress: via the act gives general guidelines or specific goals ◦ Example: CWA: “All navigable US waters should be fishable and swimmable” Agency: produces specific, detailed RULES that translate the mandates of the act into everyday requirements

Rule-making By Agencies 1. Proposal of rule by agency 2. Published in the Federal Register for public 3. Comment Period: 30/60/90 days of public 4. Revision of rules based on comments 5. review and testimony; also internal review Final promulgation by publication in the Code of Federal Regulations (CFR)

Federal Register Online http: //www. gpo. gov/fdsys/browse/collection. action? collection. Code=FR

Role of U. S. States “Primacy”: Federalism in Action [“First or foremost”] Federal EPA sets the general regulatory framework and in many cases the exact rules States may write some or most of the actual regulations as long as they meet or exceed the federal standards

Enforcing the Rules: Mostly by States in Routine Cases States assume the prime responsibility for enforcement States normally are in charge of enforcement most actions, with federal oversight US EPA does enforcement for very large or multistate cases, often in conjunction with state agencies

Enforcement of Regulations: The “Carrot and the Stick”

The Carrot Policy documents: “should do” Guidance documents: “how to” Policy: statements outlining official positions or procedures Guidance: detailed instructions on how to implement requirements or regulations

The Stick: Enforcement Voluntary compliance Civil suits and penalties: Agreements, settlements, and fines Criminal action: Fines, jail time The normal and most common situation For ongoing noncompliance, with or without intent For serious noncompliance with intent; cases involving threat to human health or life

Civil Enforcement Voluntary ◦ Compliance with regulations is expected of everyone (like income taxes). ◦ “Strict liability”: Doing it makes you guilty. Ignorance of the regulations is no defense. ◦ Assistance is offered (“carrots”) Grants to local governments etc. Policy and guidance documents ◦ “Forgiveness” for voluntary discovery

“Forgiveness”: Penalty Mitigation for Voluntary Compliance Oregon rules are typical: Penalties may be reduced (up to 100%) if violator discovers the violation and voluntarily reports it. Does not apply if the “discovery” came from monitoring you were required to do anyway. Never applies to toxic discharge to waterways.

Civil Enforcement Civil Action ◦ Agency identifies noncompliance ◦ Gives notice to responsible party ◦ If no adequate response, suit is filed in court May settle out of court May go to trial, usually by federal judge/magistrate May then reach an in-court settlement or else a court order from magistrate or judge

Alternative Enforcement An agency fails to identify a problem or act on a known problem An aggrieved party with legal standing in the matter files suit ◦ For example, Northwest Environmental Advocates, Friends of the Coast Fork, Gifford Pinchot Task Force State agency and other regulators are named as defendants; i. e. , outside party sues the agency (not the polluter(s) directly).

Alternative Enforcement Case settles or is decided by a court The decision directs the agency on what to do to resolve the problem (issues an order or injunction) Agency then goes after the responsible parties for actions and compensation (if possible)

A Few Basics of Civil Law Standing Complaint Damage Relief Sought Financial relief ◦ Compensatory damages ◦ Punitive damages Injunctive relief

The Issue of “Standing” is the legal right to file suit to stop or penalize damage caused by another party. In U. S. environmental cases, two main forms: ◦ Party suffers direct damage, either current or imminent; has “something to lose”, economic or non-economic ◦ Party is granted automatic standing by an environmental law. Party “stands in” to redress general damage. “Should trees have standing? ”* *- Christopher Stone, Original edition 1972

Complaint, Damage, Relief A legal document in which plaintiff explains some injury or damage caused by defendant and lays out a claim for relief. ◦ E. g. , a group sues state for not enforcing a pollution law which is damaging a river or a water supply. Relief is the specific remedy sought by the plaintiff.

Financial Relief Money damages: Plaintiff seeks cash from the defendant. Typical in personal or classaction suits. ◦ Compensatory damages: “Pay me for what it cost me to deal with this. ” ◦ Punitive damages: “Make them pay a lot more than that just to teach them and everyone else a lesson. ”

Injunctive Relief Plaintiff wants the judge to order action by the plaintiff. Requested where money is not enough or is not the solution. Typical in most environmental case brought by agencies or outside groups. What if defendant does not comply with the order? ◦ Civil penalties like fines ◦ Criminal penalties like fines or imprisonment ◦ Contempt of court charges

Settlement A case is commonly settled in or out of court. Out of Court: Parties agree in private to a mutually satisfactory outcome. Case dismissed. In Court: Parties work out a solution but then get a court enforcement order after a “joint stipulation. ”

What Makes Noncompliance a Crime? Intent or a “knowing violation”. Oregon DEQ’s definition is pretty typical: A prevalent management philosophy or practice that concealed or condoned environmental violations; or Knowing involvement in or deliberate ignorance of the violations by responsible corporate officials or managers; or Substantial harm to human health or the environment.

Federal Criminal Enforcement EPA’s criminal enforcement program pursues individual and corporate defendants who have committed serious environmental crimes § EPA's criminal enforcement program established 1982 § Granted full law enforcement authority by Congress 1988. § 200 fully authorized federal law enforcement agents. These EPA Special Agents can pack heat. § 70 forensic scientists and technicians. § 45 criminal offense attorneys

Criminal Enforcement Info and Resources: EPA http: //www 2. epa. gov/enforcement/2014 -major-criminal-cases http: //echo. epa. gov www. youtube. com/watch? v=f. AJl. Hxyapa 0