Chapter 14: Federal Environmental Protection and Regulation

1. Chapter 14: Federal Environmental Protection and Regulation Text: Cubbage et al., 1992

2. Major Laws (1970s) • NEPA of 1969 • Federal Water Pollution Control Act 0f 1970 (as amended in 972 – esp. Sections 208, 319, 404) • Air Pollution Control Act of 1970 • Federal Environmental Pesticide Control Act of 1972 • FIFRA of 1947 (Federal Insecticide, Fungicide, & Rodenticide Act) • Coastal Zone Management Act of 1972 (as amended in 1990)

3. Federal Environ. Protection & Regulation • Conservation movement in 1800s  led to: • establishing national forest lands in West in 1891 • purchasing lands in East in 1911 • US first wildlife protection laws enacted • Lacey Act of 1900 • Migratory Bird Treaty Act of 1918 • 1919 – first concerted efforts for federal regulation of private forestry began, led by Pinchot

4. Early Forest and Environmental Policy • Current environmental law and policy  rooted in statures enacted by first settlers • Europe: measures to protect forests already in place early • Germany (1400s), England for centuries • Early US: English heritage reflected in British common law designed to protect forests & game

5. Colonial America • Early colonists regard forests as liability, cleared for farms & towns • Most colonial laws promoted clearing lands, draining swamps, or otherwise "improving” land in its natural state • Examples of early public regulation of forests in the US: (up to mid 1600s) • 1626 (earliest): Plymouth Colony prohibited timber sale/transport out of colony • 1668: Massachusetts Bay Colony reserved all white pine trees in Exeter town for ship masts • 1681: Gov. William Penn  keep 1 acre for every 5 acres of forest land cleared • 1739: Massachusetts attempted to halt encroachment of sand dunes on part of Cape Cod by regulating timber cutting, burning, grazing • Broad Arrow Policy (1691): English rulers William & Mary prohibited cutting white pine trees growing on land not granted to private persons • 1735 (South) – Gov. Oglethorpe (GA) proclaimed preserving vast stands of timber and prevent scarcity; required license to cut timber • “Nuisance”: concept referring to unreasonable interference in land use

6. The United States • Early policies  exploitation of forests & game resources • Disposition, development, and private use were the policies; ignored conservation

7. The United States • Proposed Federal Forestry Regulation • Clarke-McNary Act of 1924 • Federal Wildlife Laws • Lacey Act of 1900 1913 • Weeks-McClean Act (Migratory Birds Law) • Beginning Forest Practice Laws • Mid-Century Conservation • Civilian Conserv. Corps - building/protecting US parks/forests • Soil Erosion Service (Soil Conservation Service) created • Civilian environmental groups provided grassroots support for wildlife & land conservation laws (Sierra Club, Audobon Soc.) • Silent Spring (1962) triggered environmental protection as a national issue

8. The Taking Issue: Regulatory police power vs. Eminent domain power • The taking issue – society’s police power to regulate persons on use of their lands to protect & promote public health, safety, welfare • came from common law of private nuisance and from the doctrine of waste • roots from colonial and early US policy • Common law and legal doctrine individuals not to use their property in ways that will injure real property rights of others (private nuisance) • Nuisance laws prevented foul-smelling businesses from locating near homes • Firms cannot dump wastes in waters used by downstream owners • Doctrine of wastes  owners only have usufructuary rights, i.e., may use their land as they will as long as they don’t damage/destroy it • owners shall not materially decrease their property’s value

9. The Taking Issue: Regulatory police power vs. Eminent domain power Police power under: • Eminent domain – property taken for public purpose but with just compensation • The taking issue – a regulation may restrict development of an area and decrease a property’s value, but land is not taken nor compensation is paid • 14th Amendment: no state shall “deprive any person of life, liberty, or property without due process of law” • state’s police power should not discriminate

10. Recent Court Decisions (late 1980s - 1990s) • Court decisions indicated limitations placed on public regulation of private landowners • possible swing to favor property rights • Inverse condemnation – instead of trying to prove that a constitutional taking occurred, landowners try to receive payments for their financial loss • Environmental groups strongly support use of state’s police power to prevent harm to environment or to other individuals

11. National Environmental Policy Act of 1969 3 purposes: • to encourage harmony between people & environment • to promote efforts that prevent/eliminate damage to environment and biosphere, and stimulate health & welfare of humanity, and • to enrich the understanding of the ecological systems and natural resources

12. National Environmental Policy Act of 1969 • requires preparation of EIS for all federal actions significantly affecting environment • can stall projects until adequate study is done • recommends guidelines that states could use in enacting its own environmental legislation • EAR (Environ. Assessment Report)  FONSI (Finding of No Significant Impact) • If significant impact  full-blown EIS

13. The Environmental Protection Agency • Created by Reorganization Order No. 3 in 1970 • Charge: to oversee pollution monitoring, research, standard setting, and enforcement activities. • lead agency for federal regulation of public & private landowners in order to prevent environmental damage • administers legislative programs fro water, air, radiation, and pesticide protection • Council on Environmental Quality created by NEPA • CEQ will work with EPA • advises president; is concerned with all aspects of environmental quality

14. Federal Water Pollution Control Act of 1972 • Section 402 – Industrial Point Source Pollution • Section 209 & 319 – Nonpoint Source Pollution • Section 404 – Wetland Point Source Pollution • Permit Authority • Silvicultural Exemptions • Wetlands Definitions • 2 Wetlands Mitigation Techniques (wetland value system, mitigation banking)

15. Federal Water Pollution Control Act of 1972 • Permit Authority – national, regional, individual • Silvicultural Exemptions (Section 404) • No permit required for normal silvicultural activities • Wetlands Definitions: 3 features • Wetland hydrology, hydric soils, hydrophilic vegetation • 2 Wetlands Mitigation Techniques • wetland value system, mitigation banking

16. Related Wetlands Legislation • Coastal Zone Management of 1972 • Farm Bill (1985, 1990) – “swampbuster”

17. Clean Air Act of 1970 • Air Pollutants • Control Methods • 1990 Amendments – esp. relating to forestry

18. Clean Air Act of 1970 (continued) Air Pollutants • Substances/particles harmful to human, animal, or plant health by causing growth problems, mortality, or economic losses • Examples • Suspended particulates (from large industrial sources) • sulfur dioxide (linked with acid precipitation) • nitrogen dioxide (from car exhausts, power plant emissions) • carbon monoxides and hydrocarbons • ozone (principal smog component) • lead, methane

19. Clean Air Act of 1970 (continued) Control Methods • EPA to list pollutants that adversely affect public health or welfare • EPA to establish national ambient air quality standards (NAAQS) for each pollutant • EPA standards are uniform for all industries  prevent states from using “easy” pollution regulations to attract new industry. • States to develop specific implementation plans to achieve standards • Legal controls used to ensure states meet federal requirements

20. Clean Air Act of 1970 (continued) 1990 Amendments • Title I – sets requirements for nonattainment areas to meet NAAQS for various pollutants & levels of noncompliance • Title III – lists 189 chemicals; EPA to set standards for controls in 10 years • Title IV – acid rain controls; sets cap on allowable emissions of sulfur dioxide, create market for right to emit this chemical; market approach to pollution control • Title VI – concerns with ozone depletion & climate changes • require phaseout of 5 ozone-depleting chemicals, 3 halons, and carbon tetrachloride by year 2000 • Prohibits production of methyl chloroform by 2002 • Freezes production of regulated hydrochlorofluorocarbons in 2015 and complete prohibition by 2030

21. Clean Air Act of 1970 & Forestry Land Use Controls: Effects in forestry • Lumber mills stopped burning waste wood • Plywood & particle board manufacturers have reduced formaldehyde emissions in plants & in structural lumber in homes • Pulp & paper mills have reduced chemical emissions into the air • Standards affecting forestry operations most  particulate matters • Standards changed from measuring total suspended particulates (TSP) to measuring particulates 10 microns in size or smaller (PM10). • PM10 adopted in 1987 -- standard used to develop rules governing prescribed burning & residential wood combustion

22. Other Federal Laws • Coastal Zone Management Act of 1972 • Federal Environmental Pesticide Control Act (FEPCA) of 1972

23. Federal Environmental Pesticide Control Act (FEPCA) of 1972 Major Provisions • Registration of all pesticides with EPA • Classification of pesticides into 2 categories: general use and restricted use • Requires certification of applicators by two groups: private and commercial • Minimum standards of competency for both private and commercial applicators • Misuse of pesticides made unlawful with provisions for enforcement & penalties when appropriate • Enforcement of regulations delegated to designated state agencies

24. Coastal Zone Mgmt Act of 1972 (as amended in 1990) • Provided federal assistance to states to protect coastal resources on the oceans and Great Lakes