CHAPTER 1 ENVIRONMENTAL LAWS AND NATURAL RESOURCES ACTIVITIES: SOME FACTS, HISTORY AND REFLECTIONS ON EXPERIENCES UNDER UNITED STATES' LAW 1970-1996 AND SOME LESSONS FOR DEVELOPMENT OF WORLDWIDE ENVIRONMENTAL LAW

• Jurisdiction: United States

International Environmental Law for Natural Resources Practitioners
(Mar 1997)
CHAPTER 1
ENVIRONMENTAL LAWS AND NATURAL RESOURCES ACTIVITIES: SOME FACTS, HISTORY AND REFLECTIONS ON EXPERIENCES UNDER UNITED STATES' LAW 1970-1996 AND SOME LESSONS FOR DEVELOPMENT OF WORLDWIDE ENVIRONMENTAL LAW^*
Ilona Dotterrer
Fairfield and Woods
Denver, Colorado
Thomas E. Root
Root & Schindler, P.C.
Denver, Colorado
Turner T. Smith, Jr.
Hunton & Williams
Washington, D.C.

TABLE OF CONTENTS

SYNOPSIS

PART I

INTRODUCTION

A. Scope

B. Rationale For This Paper

PART II

FACTS: SOME DATA AND STATISTICS DESCRIBING U.S. ENVIRONMENTAL PROGRAMS AND MANAGEMENT 1970-1996

I. The United States' Experience with Environmental Protection—Administration and Enforcement

A. Purpose

B. Administration and Enforcement of Federal Environmental Law

1. Magnitude of the Federal Environmental Administrative Apparatus

a. The Environmental Protection Agency

(1) Duties

(2) Budget

(3) Programs

(4) Statutory Enforcement

(5) Administrative Enforcement and Process

b. The Justice Department

c. Citizen Suits

C. Summary

PART III

SOME HISTORICAL TRENDS IN THE DEVELOPMENT OF

U.S. ENVIRONMENTAL LAWS

II. Introduction to the United States' Experience with Environmental Protection—Some Recurring Influences upon its Environmental Law

A. Uniqueness of Place and Local Environment

B. Environmental Standards and Costs of Implementation

C. Technology—Fixed Legal Standards and Technological Development

D. Politics

E. Conclusion

III. The United States' Experience with Environmental Protection—Major Evolutionary Shifts in Policy and Implementation

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A. Initial Emphasis on Incorporation of Environmental Factors in the Federal Decision-making Process—The National Environmental Policy Act

1. Consideration of the Environment Before 1970—It Did Not Begin With Earth Day (April 22, 1970)

2. NEPA—Consideration of Environmental Factors and Enrichment of Understanding Ecological Systems

3. Conclusion

B. The Shift in Emphasis from Consideration of Environmental Factors in the Decision-making Process to Establishment of Substantive Environmental Protection Standards—Expansion of the Federal Role and the Clean Water Act Example 19

1. The Federal Water Pollution Control Act Amendments of 1972

a. Evolution of the Water Pollution Laws

b. The National Pollution Discharge Elimination System (herein "NPDES") Provisions of the FWPCA

2. Other Laws Requiring Substantive Environmental Protection Standards

3. Summary and Conclusions

C. The Shift in Emphasis from Present Activities to Consequences From Past Activities and Expanded Liability

1. The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (hereafter "CERCLA" or "Superfund")

a. Background and Scope

b. Unusual Aspects

c. Some Results of CERCLA

2. Conclusions

D. The Shift in Emphasis from Domestic Environment to the Global Environment and International Activities

E. Change in Emphasis—Limitations Imposed on the Environmental Protection Legal Apparatus

1. Introduction

2. The Supreme Court Examines the Fifth Amendment and Property Rights—1987 to 1992

3. Republicans Come to Power—1994-1996

4. Conclusion

IV. Reflections on Policy Development of Environmental Laws in Light of the Experience of the United States from 1970-1996

A. Facts

B. Reflections

C. Suggestions

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1. Amend Laws And Revise Regulations To Employ Economic Incentives To Achieve Environmental Improvement

2. Amend Laws and Revise Regulations to Require Cooperation In Regulation As National Environmental Policy

3. Establish a Commission To Coordinate Environmental Protection Laws

PART IV

THE DEVELOPMENT WORLDWIDE OF ENVIRONMENTAL LAW

AFFECTING NATURAL RESOURCE PROJECTS:

CURRENT TRENDS AND HOW LESSONS FROM U.S. EXPERIENCE CAN GUIDE ITS EVOLUTION

V. Introduction to Worldwide Environmental Law—Status and Options for Action

VI. Foreign and International Environmental Law—Why It Is Important to The Natural Resources Practitioner And What The Practitioner Needs To Know About It

A. Foreign Environmental Law

1. The Regulatory Context

a. Extraction and Processing Plant Regulation

b. Product Regulation

c. Company-Wide Issues

d. Special Aspects Of Regulatory Law In The International Context

2. Transactional Context

a. Environmental Regulatory Risks

b. Environmental Liability Risks

B. International Environmental Law

1. Conventions and Treaties

2. Multilateral Bank, Government Finance and Private Finance Developments

a. The New Trends

b. Environmental Groups Target Private International Projects

c. World Bank Environmental Guidelines

d. World Bank Appeal Procedures

e. New OPIC Environmental Covenant

f. OPIC Insurance Cancellation

g. ISO-14001 Environmental Management Standards

h. What These Trends Mean

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i. What To Do

VII. How U.S. and Foreign Environmental Laws Differ

A. European Union and U.S. Law-Making Methods

B. Regulatory Frameworks

C. New U.S. Steps

D. New EU Steps

E. Conclusion

PART V

VIII. Some Lessons U.S. Environmental Law Teaches for Further Development of International and Foreign Environmental Law

A. Some General Lessons Suggested by the Comparison With EU Law

1. Lesson 1

2. Lesson 2

3. Lesson 3

4. Lesson 4

5. Lesson 5

6. Lesson 6

7. Lesson 7

8. Lesson 8

9. Lesson 9

PART VI CONCLUSION

TABLES

Table I- USEPA Organization Chart

Table 2- USEPA Administrative Enforcement Actions 1972-1989

Table 2a- USEPA Administrative Actions Initiated 1973-1993

Table 3- USEPA Referrals to the Department of Justice 1972-1989

Table 4- Enforcement Actions by Department of Justice for Criminal Violations 1983-1989

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PART I
INTRODUCTION

A. Scope

The title of this paper suggests it is a reflective one — a thought piece on experiences in the formulation, promulgation, administration, and enforcement of United States' environmental laws over the past 25 years and lessons this experience may hold for the development of worldwide environmental laws. Keeping in mind that this paper is not a history (as Reinhold Niebuhr said "Nothing that is beautiful or good makes sense in any immediate concept of history") it must be emphasized that these are reflections on events of the past 25 years.¹

Perhaps the greatest difficulty in writing a piece such as this is keeping one's perspective. This is particularly difficult when dealing with a subject of such breadth as environmental laws. The topics which are addressed herein will no doubt be reviewed and analyzed in the future as laws develop further and as policy decisions are made. As later generations revisit these topics and seek insight into the actions and actors involved in the significant events of which we are presently a part, we hope to have aided in their quest.

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One cannot deny that the development of the laws of the environment over the past 25 years has been significant. Indeed, it might not be over-reaching to suggest that the knowledge of the environment gained in the past 25 years as a result of these laws is of the same magnitude as that gained by Lewis and Clark in their exploration of the Missouri and Columbia River basins from 1804 to 1806,² or of similar breadth as that gained by the various national space programs of the past 40 years. Each changed the way in which a world was viewed, altering political, economic, and philosophical reality.

Reflections on such momentous legal developments are meaningful if they remain critical, focusing on positive aspects of accomplishments while coupled with a willingness to identify not-so-successful achievements.³ Nevertheless, reflections are subjective, and hence, this will not be an entirely "statute quoting, case citing" piece of legal writing, except where that habit cannot be controlled. There are many citations, to be sure, but this paper is principally a reflective critique of the strengths and weaknesses of United States environmental laws which includes suggestions and lessons for improvement of these laws and for their emulation elsewhere.

As to matters of detail, these reflections must, by necessity, be very broad-brush. Some interesting topics are limited or omitted in the discussion, environmental ethics and politics being obvious examples.⁴

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B. Rationale For This Paper

This paper is being delivered at a time of transition, both in this program and for U.S. environmental policy. The rationale for its presentation has three parts.

First, with regard to its place in the program, this Special Institute is taking place after three days of papers presented by the International Bar Association Section on Energy and Natural Resources Law which have addressed international resources law and international petroleum transactions. The Rocky Mountain Mineral Law Foundation agreed to sponsor this Special Institute for one day following these programs, its focus being a different topic — International Environmental Law. Clearly a transition from resources and transactions to international environmental law was in order.

Second, there is a very practical need for a discussion of the topic. There has been some question about what environmental standards are appropriate for use when United States' entities engage in natural resources activities outside the U.S. and what standards foreign governments and international financing entities should adopt to govern these activities by United States' and other nations' companies These questions are particularly troublesome in those countries where there is law of different genesis than the United States' environmental law, national environmental law is simply absent, or that law is not well developed or implemented. To address this difficulty, some have suggested that grafting...