History of Environmental Law in the U.S. - Part 4

THE 1990s

 As is its practice, Congress responded the next year with the Oil Pollution Act[1] ("OPA"). The Act streamlined and strengthened EPA's ability to prevent and respond to catastrophic oil spills. A trust fund financed by a tax on oil is available to clean up spills when the responsible party is incapable or unwilling to do so. The OPA requires oil storage facilities and vessels to submit to the federal government plans detailing how they will respond to large discharges. EPA has published regulations for aboveground storage facilities; the Coast Guard has done so for oil tankers. The OPA also requires the development of Area Contingency Plans to prepare and plan for oil spill response on a regional scale.

 1990 saw some other legislation, as well. The Pollution Prevention Act[2] attempted to focus industry, government, and public attention on reducing the amount of pollution through cost-effective changes in production, operation, and raw materials use. Proponents of the Act believed that opportunities for source reduction are often not realized because of existing regulations, and the industrial resources required for compliance are usually focused on treatment and disposal.

Pollution prevention includes practices that increase efficiency in the use of energy, water, or other natural resources, and protect our resource base through conservation.

 Congress also passed the Clean Air Act amendments requiring states to demonstrate progress in air quality improvements and EPA’s Toxic Release Inventory told us which pollutants were being released from specific facilities in communities.

 Professor Shi-Ling Hsu, from Florida State College of Law, summarized what happened on the environmental law front after 1990. Professor Hsu said, "Over the past 24 years (with the 1990 Clean Air Act Amendments marking the last significant environmental accomplishment by Congress), a number of other lawmaking institutions have evolved to take Congress’s place, including a great deal of administrative lawmaking."[3]

 Professor Hsu reached this conclusion because from 1990 to today, with few exceptions, virtually every law dealing with the environment is the result of either EPA rule making, or Presidential decree.

 The remainder of this paper will touch on some of those rules and decrees. My intent is to give the reader some idea of how environmental regulation has changed from a primarily statute driven regulatory scheme to an administrative process.

 In 1992, EPA launched its Energy Star program to help consumers identify energy efficient products.

 In 1993, EPA reported that secondhand smoke contaminates indoor air, posing health risks for nonsmokers.

 Also in 1993 there was an outbreak of cryptosporidium in drinking water in Milwaukee, WI, which sickened 400,000 people and killed more than 100.

 Also in 1993, President Bill Clinton directed the federal government to begin purchasing recycled and environmentally preferable products when possible.

 In 1994 EPA launched its Brownfields Program to clean up abandoned, contaminated sites and return them to productive use. That same year, EPA issued new standards for chemical plants to reduce toxic air pollution by more than 500,000 tons per year.

 Partly in response to the problem in Milwaukee, in 1996 EPA required public drinking water suppliers to inform customers about chemicals and microbes in their water, and began providing funding to upgrade water treatment plants. President Clinton signed the Food Quality Protection Act to tighten standards for pesticides used to grow food, including protections to ensure that foods are safe for children. And in 1996, EPA began requiring that home buyers and renters be informed about lead-based paint hazards.

 In 1997, an Executive Order was issued to protect children from environmental health risks, including childhood asthma and lead poisoning. Also, EPA issued new air quality standards for smog and soot.

 In 1999 President Clinton announced new emissions standards requiring cars, sport utility vehicles, minivans and trucks to be 77% to 95% cleaner than in 1999, and EPA announced new requirements to improve air quality in national parks and wilderness areas.

 THE 21^st CENTURY

In 2000, EPA established requirements that heavy duty highway diesel engines and fuel must be 90% cleaner than they had been.

 In 2002 Congress passed the Small Business Liability Relief and Brownfields Revitalization Act[4], its one significant piece of legislation. Better known as The Brownfields Act, it was an amendment to CERCLA that added some new defenses to owners of contaminated property.

 CERCLA had had an unintended consequence. Because its liability scheme is strict liability and joint and several liability, real estate developers would not purchase a property that might possibly be contaminated. The only real defense to liability for property owners in CERCLA was the "innocent owner defense." To qualify for the innocent owner defense, the prospective purchaser had to undertake  "all appropriate inquiries." If that environmental due diligence finds that there is a "Recognized Environmental Condition," in other words, that there is the possibility that the property is contaminated, potential buyers would terminate the transaction because they were unwilling to risk environmental liability at the site. The result was thousands of properties being unsalable and hence unusable. Those properties became blights on their communities.

 The Brownfields Amendments added the Bona Fide Prospective Purchaser Defense[5]. Now, even if a potential buyer discovers a property is contaminated before purchase, s/he doesn’t automatically purchase the environmental liability. There are many rules that have to be followed, but the defense is usable and has helped get brownfields development moving again. The Brownfields Amendments also added the Contiguous Property Owners’ Exemption[6], the De Micromis Exemption[7], and the Municipal Solid Waste Exemption[8].

 In 2003, EPA provided funds for more than 4,000 school busses to be retrofitted through the Clean Bus USA program. EPA also proposed the first mercury emission regulations for power plants, which resulted in the removal of 200,000 pounds of particulate matter from the air over the next 10 years.

 In 2004, new 8-hour ozone and fine particulate standards went into effect. These were the result of EPA’s rule making. EPA also required cleaner fuels and engines for off-road diesel machinery such as farm and construction equipment.

 In 2005 EPA established more rules, including the Clean Air Act Interstate Rule to reduce air pollution by permanently capping emissions of certain harmful particles.

 The Energy Policy Act of 2005 was also adopted.[9]  The Energy Policy Act addresses energy production in the United States, including: (1) energy efficiency; (2) renewable energy; (3) oil and gas; (4) coal; (5) Tribal energy; (6) nuclear matters and security; (7) vehicles and motor fuels, including ethanol; (8) hydrogen; (9) electricity; (10) energy tax incentives; (11) hydropower and geothermal energy; and (12) climate change technology. For example, the Act provides loan guarantees for entities that develop or use innovative technologies that avoid the by-production of greenhouse gases. Another provision of the Act increases the amount of biofuel that must be mixed with gasoline sold in the United States. Describing the law sounds impressive, but the Washington Post contended that the spending bill is nothing more than  a broad collection of subsidies for United States energy companies; in particular, the nuclear and oil industries.[10]

 Hurricane Katrina, the biggest environmental event of 2005 was a natural disaster that devastated New Orleans, LA.

 In 2007, British Petroleum agreed to pay the largest criminal fine to date for air violations as a result of a refinery explosion in Texas and an oil spill in Alaska. The fine was $62,000,000 and BP also agreed to make $400,000,000 in safety upgrades.

 Also in 2007, the Energy Independence and Security Act was adopted. The bill originally sought to cut subsidies to the petroleum industry in order to promote petroleum independence and different forms of alternative energy. Those tax changes were ultimately dropped after opposition in the Senate, and the final bill focused on automobile fuel economy, development of biofuels, and energy efficiency in public buildings and lighting.

 2008 saw a major change in U.S. politics. Barrack Obama, a Democrat, was elected President. Mr. Obama is concerned about climate change and a strong supporter of laws, rules and regulations to limit the release of greenhouse gases. His efforts have been adamantly opposed by the Republican-dominated Congress.

 President Obama announced a program to reduce greenhouse gas emissions from private vehicles in 2009. He also issued an Executive Order recognizing the Chesapeake Bay as a National Treasure and called on the federal government to make a renewed effort to restore and protect it.

 The American Reinvestment and Recovery Act, also known as the stimulus bill, was passed in 2009. Among the other features of that law, it provided $90 billion in funding for green projects, which included grants and loans for clean energy.

 In 2010 EPA proposed stricter health standards for smog and finalized greenhouse gas reporting requirements for facilities that use geologic sequestration. It also took steps to reduce nitrogen, phosphorus and sediment from reaching the Chesapeake Bay.

 The biggest environmental news of 2010 was the Deepwater Horizon oil rig explosion in the Gulf of Mexico. 11 workers were killed and nearly 5,000,000 barrels of crude oil were released into the Gulf causing a major environmental catastrophe.