CHAPTER 6 STATE ENVIRONMENTAL LAWS AND REGULATIONS AND LOCAL CONTROL
| Jurisdiction | United States |
(Nov 1980)
STATE ENVIRONMENTAL LAWS AND REGULATIONS AND LOCAL CONTROL
Attorney at Law
Salt Lake City, Utah
Introduction
Until recently, the focus and analysis of environmental control of large resource development has been almost exclusively on the direct federal control. While it seems obvious that federal environmental law will continue to be a major consideration for any large scale resource development, the state and local laws are becoming increasingly important and influential. There are a variety of reasons for this increase; however, it is the opinion of this author that most of the reasons have a genesis in three trends. One is the growing federal acknowledgment, however grudgingly, of the inherent practical need for state and local participation in the implementation of federal natural resource laws. Second is the growing agressiveness of the states and, to a lesser extent, local governments toward participating in the natural resource development decision making. Thirdly, and perhaps most importantly, is the growing judicial acceptance or at least recognition of the legitimacy of these two aforementioned trends. Because these trends are in their early generic state, there is a dirth of case law or clear regulations specifically on the issue of state and local environmental control. This creates a situation of some legal uncertainty making any discussion and conclusions somewhat tenuous and very subject to change; however, there is a real need for the resource development community to be aware of this growing level of local control and management. It is the intent of this paper to give an overview of this growing area of environmental law and to identify means by which conflicts and uncertainty can be minimized.
The Legal Basis For State and Local Control
Legal Analysis of state and local environmental controls is complicated by the fact that the legal support or basis comes from basically three very different origins and are often intertwined.
One basis for such local or "non-federal" environmental control is the direct delegation of federal powers to the state through Congressional Acts. Some of the most apparent are the Clean Air Act1 and the Clean Water Act2 wherein the statutes explicitly turn over to the states certain environmental control powers. This legal basis is the most easily traced and identified.
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The second legal basis is the Congressional allowance for state and local involvement in federal environmental or land use planning programs. At times, this Congressional allowance strengthens the non-federal role by requiring compliance with state and local land use or environmental policies. A recent example of that is Section 202(a) of the Federal Land Policy and Management Act (FLPMA).3 This legal basis is less explicit than the direct delegation mentioned above and is little tested in the courts to date.
The third legal basis is the inherent policy powers of the state under the Tenth Amendment wherein the state and local governments can exercise their policy powers to the extent they are not superceded by federal powers,especially under the Commerce Clause. Until very recently, the general view has been that the ability of states to exercise any independant powers over resources of an interstate nature was severely restrained by the federal supremacy.4 This conclusion has become much more clouded as a result of a recent U.S. Supreme Court decision on the separation of federal and state powers.
In this case of great significance, National League of Cities V. Usery,5 the Supreme Court focus is on what was left of state's inherent powers under the Tenth Amendment.. The court framed the issue in terms of states being directly impaired by federal action. On that point, the court states,
"...there are attributes of sovereignty attaching to every state government which may not be impaired by Congress,"6
On defining what are these attributes, the court held as follows,
"We hold that insofar as the [Federal actions] operate to directly displace the States' freedom to structure integral operations of traditional governmental functions, they are not within the authority granted Congress by Art. I 8, cl 3."7
And further,
"Congress may not exercise that power so as to force directly upon the States its choices as to how essential
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decisions regarding the conduct of integral governmental functions are to be made."8
The issue then, is what is an "integral governmental function" or "traditional governmental functions." In the area of environmental controls, the attempt to distinguish local from federal control becomes much more muddled. Suffice it to say here that the consideration of state and local powers in such areas as water pollution control and land use control could easily be construed to be traditional and integral governmental functions.
The argument can be carried forward as follows:
Where the activities being controlled by local law are activities which have been traditionally controlled by local governments, these powers cannot be interfered with by the federal government. Stated differently, a development which causes impacts or has activities which have been under the traditional control of local government could be argued to be exclusively under that jurisdiction absent some direct federal conflict or emergency jurisdiction. The Usery case makes no mention of prior actual exercise of control by the local jurisdiction as a necessary prerequisite to qualify as "traditional;" therefore, an inferance can be made that the area of control must only be one where the local government tranditionally had control if it so chose.
In the oil and gas arena, this raises some very significant uncertainties relative to federal lands mixed with private or state lands. The issue becomes whether a local land use policy or environmental control in the traditionally area can supercede federal management plans at least in those areas of traditionally local control (e.g. culinary water, fire prevention, road construction, etc.).
In the remaining discussion in this paper, the issue of state and local integral authority must be addressed and considered by the applicant developer's counsel. Presuming federal supremacy over local law can be too simplistic in this area of environmental or land use control and should be discouraged as a practical recommendation.
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While the first two legal bases are derived directly from Congressional statutory law, the third basis comes from state statutory law. In the real world situation, however, the state or local environmental controls are a hybrid of two or three of these legal bases making it very difficult for the courts and others to determine whether the state does infact have the legal power to assert certain controls. This is especially true where a state legislature has relied at least in part upon a federal enabling law for environmental control and enacted a somewhat parochial set of criteria for enforcing such controls by "piggybacking" on the federal law. The legal issue then is not simply one of federal vs state law but also one of Congressional intent in the original delegation. For example, can a municipality assert extraterritorial control over its domestic ground water supply under ordinances enacted pursuant to a state safe drinking water law enacted pursuant to the federal Safe Drinking Water Act?
While the strictly judicial answer to this question is unclear, it seems safe to state that the political climate in the West today toward strong assertions of a state's rights philosophy will encourage more state and local involvement in the permitting and environmental control process for large scale resource development notwithstanding the legal uncertainties.
The recent posturing of several western states over the control of federal lands is illustrative of this strong political pressure for non-federal management of natural resources.
Before discussing the specific controls, a practical suggestion to the development community is to assume a legal basis exists for local controls unless the control is extremely arbitrary on its face. The inherent problems of costs and time of litigation coupled with the practical political realities mentioned above argue strongly that an applicant/developer seek to "comply rather than defy." This suggestion is further bolstered by the practical reality that the developing industry will be a part of the local community long past the permitting stage wherein even legally justified challenges to local law become long term political liabilities.
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Specific Controls
The following, then, is a compilation and discussion of some of the state or local environmental controls which are most important and applicable to a natural resource development such as the oil and gas projects in the Overthurst Belt. This compilation is obviously not exhaustive but should be considered as representative of the types of state and local controls which exist. A comprehensive compilation for each state is beyond the scope of this paper; however, with this representative framework, such an analysis can be systematically done. In order to insure comprehensive identification of all state and local environmental controls, it will be necessary to review both state statutes and all local jurisdiction ordinances. As a practical caution here, this review should not simply be one in which only ordinances or statutes using such terms as "environmental," or "pollution control" are identified as environmental controls. Many state and local jurisdictions use a very different vernacular to mean environmental control such as "culinary water standards" or "land use goals;" therefore, the review much look to the substance of the statute or ordinance rather than to the title.
Water Quality
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