Environmental Law

Environmental Law

Environmental Law “If the law supposes that, then the law is a ass, a idiot!” - Oliver Twist

Environmental Law What do you have, when you have a lawyer up to his neck in cement?

Environmental Law What do you have, when you have a lawyer up to his neck in concrete? Not enough concrete.

Environmental Law The American judicial system has its roots in our heritage of being a former English colony and is base upon English common law The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent (stare decisis) to the facts before them

Environmental Law We will briefly look at several legal topics Water rights Mineral rights International treaties and protocols Controlling pollution EPA Cost-benefit analysis Geologic hazards Environment impact statements

Water Rights First, you need to understand that the basic principals (laws) governing water rights vary not only from nation to nation, but also from place to place within a single country In the U.S., navigable rivers and streams are under the jurisdictions of the federal and state governments

Water Rights The concept is that a navigable river or stream is owned by all and is to be used for the common good However, while one may not own the stream, you may be able to own or use the water In the U.S., there are two principal approaches to surface water rights Riparian Doctrine Doctrine of Prior Appropriations

Surface Water Rights The essence of the Riparian Doctrine is that whoever owns land adjacent to a body of water has a right to use that water and that all those bordering on a given body of water have and equal right to that water This was long the basis for English surface water use This concept works if water is plentiful

Surface Water Rights The Riparian Doctrine became the basis for assigning water rights in the eastern U.S., where water is plentiful Implicit in this principal is that no one water user rights should interfere with all of the other users rights Provisions in the law also generally require that the water must be used for “natural purposes” or “beneficial use” and that the water be returned to the body where it came from

Surface Water Rights In most of the western U.S., where surface water is in short supply, the prevailing doctrine is that of Prior Appropriation Under this doctrine, whoever historically used the water first has top-priority rights to that water Later users of that same water have subordinate rights, in the order in which they began to use it

Surface Water Rights Unlike the Riparian Doctrine in which you must own the land adjacent to the body of water, a Prior Appropriation user does not have to own land bordering on the water The user may divert the water to elsewhere for “beneficial use” In times of water shortage, a clear pecking order has been established

Surface Water Rights The devil lies in the details What constitutes “natural purposes” or beneficial use”? Certainly municipal water supply, hydroelectric power generation, irrigation, watering livestock and navigation are recognized as beneficial uses But what about watering your lawn, or filling a swimming pool or recreation?

Surface Water Rights Distribution of legal principals of surface-water rights in the U.S.

Groundwater Rights Groundwater laws are at best confusing and varied across the U.S. Most groundwater laws were established long before the hydrologic cycle was understood or it was realized that water moves laterally beneath the surface The old English Rules of Capture gives property owners the right to use all of the groundwater that they can extract from under their land

Groundwater Rights The American Rule of Reasonable Use imposes two major limitations on a property owners use of groundwater The water use must be beneficial in connection with the land One property owner cannot deprive an another property owner access to the water

Groundwater Rights The states of California and New Jersey use Correlative Rights to divide the use of groundwater The concept is that each land owner has rights to groundwater proportional to the area of their land overlying an aquifer

Groundwater Rights There are four major legal principals that define the use of groundwater in the U.S.

Mineral Rights The fundamental legislation that establishes mineral rights on federal land is the 1872 Mining Law Yes, 1872 The clear intent of this law is to encourage the exploitation of mineral resources on federal lands by granting full mineral rights and even ownership of the land to anyone who locates a mineral deposit

Mineral Rights Under the Mining Law, any federal land could be purchase for $2.50 to $5.00 per acre (and these prices are still in effect 135 years later) There are no royalties or fees The style of the mining is not regulated nor are there any provision for reclamation

Mineral Rights Two subsequent laws, passed in 1922 and 1947 began to restrict this giveaway Certain resources, such as oil, gas, coal, potash and phosphate deposits were singled out for different treatment For these resources, there was unlimited rights of exploration However, extraction rights had to be leased from the federal government and a royalty paid for extracting the resources For all other minerals, nothing changed

Mineral Rights In 1953, these same new provisions were extended to cover extracting these resources offshore This was primarily aimed at coastal oil and gas deposits in California and the Gulf Otherwise, all attempts to change the 1872 Mining Law have failed

Exclusive Economic Zones Historically, nations bordering the sea claimed territorial limits that extended 3 nautical miles from their coastline into the oceans With the realization that valuable resources (such as oil and gas) lay beneath the continental shelf, several nations unilaterally extended their territorial limits out to 150 or 200 nautical miles, or even more

Exclusive Economic Zones In 1982, The U.N. Law of the Sea Treaty attempted to bring some order to the chaos Territorial limits were set at 12 nautical miles An Exclusive Economic Zone (EEZ) was created that extends out 200 nautical miles

Exclusive Economic Zones Exclusive Economic Zones give nations exclusive rights to mineral exploration and exploitation For many countries, this 200 nautical miles extends far past their continental shelves For example, the EEZ for Mexico reaches the abyssal plains and rich manganese nodule deposits Saudia Arabia and the Sudan have rights to the metal-rich-muds in the Red Sea

Exclusive Economic Zones

Exclusive Economic Zones The Exclusive Economic Zone of the U.S. covers 3.9 billion acres

Antarctic Dispute Prior to 1960, seven countries (Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom) had lay claims to sizable portion of the Antarctic The rest of the world did not recognize these claims

Antarctic Dispute In 1961, those 7 nations, plus 5 other nations actively conducting research and exploration, signed a treaty and agreed to the following: To set aside all territorial claims to the Antarctica The whole continent should remain open Military activities, weapons testing and nuclear-waste disposal were banned Every effort should be made to preserve the distinctive Antarctic flora and fauna

Antarctic Dispute In 1988, a convention was offered concerning the mineral resources of the region No prospecting, exploration or development could occur without prior assessment Mineral-resource development would require unanimous consent 20 years later, this is still being “discussed” Meanwhile, in 1990, the U.S. passed a law forbidding mineral prospecting or development in the Antarctic by U.S. citizens

International Treaties & Protocols The later half of the 20th century saw a rapid rise in international treaties relating to the environment

International Treaties & Protocols Many of these accords reflect a new concept in international law and diplomacy, the precautionary principle The idea is that if there is a reasonable likelihood that certain actions may result in serious harm, they may be restrained before great damage is done

International Treaties & Protocols A second principle of international law is the common but differentiated responsibility of states (nations) The idea is that the nations causing more pollution and having more money are expected to do more and contribute more to the clean up

International Treaties & Protocols The 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change is an amendment to the international treaty on climate change, assigning mandatory emission limitations for the reduction of greenhouse gas emissions to the signatory nations

Kyoto Protocol A major component of the Kyoto Protocol is a commitment by industrial nations to reduce their greenhouse-gas emissions by 5.2% below 1990 levels by 2012 The pie chart show the amount of reductions needed from various nations

Kyoto Protocol As of December 2006, a total of 169 countries and other governmental entities have ratified the agreement

Kyoto Protocol In 2001, the United States Government unilaterally abandoned the Kyoto Protocol (In fact, the U.S. greenhouse-gas emissions rose by 16% from 1990 to 2001)

Controlling Pollution The U.S, government (and state governments too) have the legal right to promote the general welfare by enacting legislation to restrict the spread of toxic and harmful substances These legislations cover 3 broad categories Water pollution Air pollution Waste disposal

Controlling Pollution Water pollution was the first type of pollution addressed by the federal government The refuse Act of 1899 prohibited dumping or discharging refuse into any body of navigable water It essentially was never enforced

Controlling Pollution In succeeding decades, stricter and more specific anti-water-pollution laws were passed The Federal Water Pollution Control Act of 1956 focused on municipal sewage treatment

Controlling Pollution The much broader Water Quality Improvement Act of 1970 and the important Clean Water Act of 1977 seriously addressed oil spills and chemical pollution, plus required sewage-treatment facilities to undertake secondary treatment by 1983 After heavy lobbying by big business, the Clean Water Act was allowed to lapse

Controlling Pollution The Clean Air Act of 1963 was the first legislation to seriously empower federal agencies to undertake air-pollution-control efforts It was amended in 1965 to specifically address automotive exhaust emissions And was reauthorized in 1990

Controlling Pollution The Clean Air Act also requires the reduction of CFCs and other compounds dangerous to the ozone In fact, it provides for the reduction of nearly 200 airborne pollutants by industry

Controlling Pollution A series of federal legislations were passed in 1965, 1976 and 1984 that were originally designed to help state and local governments dispose of municipal solid wastes

Controlling Pollution However, it soon become apparent that the safe disposal of dangerous and toxic solid wastes should be given priority By 1984, 100,000 companies that produce toxic solid wastes were subjected to regulation

EPA The Environmental Protection Agency (EPA) is an agency of the federal government of the United States charged with protecting human health and with safeguarding the natural environment, air, water, and land The EPA began operation on December 2, 1970, when it was established by President Richard Nixon

EPA The EPA comprises 18,000 people in headquarters program offices, 10 regional offices, and 17 laboratories across the country The EPA employs a highly educated, technically trained staff, more than half of whom are engineers, scientists, and environmental protection specialists, while others are legal, public affairs, financial, and computer specialists EPA headquarters in Washington, D.C.

EPA The EPA is led by its Administrator, who is appointed by the President of the United States and the position has become highly politicized Stephen Johnson EPA Administrator under Bush was accused of favoring Big Business over enforcement Lisa Jackson is charged with taking enforcement to extremes not authorized by law

EPA It is the EPA’s responsibility to set standards for permissible concentrations and emissions of contaminates

Defining Standards Defining pollution standards and has proven to be complicated Given the number and variety of chemicals involved, it would take a staggering amount of research, time and money to determine scientifically the appropriate safe upper for each pollutant Even worse, is the setting of standards by lobbying and political influence

Environmental Law