Dining on the Alphabet Soup of Environmental Law: an Overview for Non-environmental Lawyers

• Jurisdiction: United States,Federal
• Citation: Vol. 9 No. 6 Pg. 0001
• Pages: 0001
• Publication year: 2004

Georgia Bar JournalVolume 9.

GSB Vol. 9, No. 6, Pg. 1. Dining on the Alphabet Soup of Environmental Law: An Overview for Non-Environmental Lawyers

Georgia State Bar Journal
Vol. 9, No. 6, June 2004

"Dining on the Alphabet Soup of Environmental Law: An Overview for Non-Environmental Lawyers"

By Bill Sapp and Kate Grunin

As you were somewhat clumsily slicing the hinge muscle of an oyster at the Savannah Bar's annual oyster roast, a rival Bar member, who delights in exposing your ignorance on any legal topic, strides over to you and says, "So did you hear about that TMDL1 case up there in Atlanta?" Having never practiced a day of environmental law in your decade-long career, but not wanting to admit that shortcoming in mixed company, you smoothly reply, "Yeah, it sure was a doozy," hoping that this parry will steer the conversation toward more familiar ground. Unfortunately, a follow-up thrust comes just as several stalwart bar members join the conversation. "Well," your nemesis replies, "which do you think is worse, that Atlanta TMDL case or the Waycross PCB2 case?"

Not knowing a PCB from an ESD3, or a TMDL from an ACL4, you quickly decide that you have only two options: 1) pretend to cut yourself shucking an oyster, or 2) pretend to choke on the lime wedge in your gin and tonic. You choose the latter and throw back the remains of your drink. Sputtering gagging, and feeling ridiculous, you head to the bar for a refill. Safely disengaged from the conversation, you resolve that it's time to learn some of the basics of environmental law, if only so you will not have to repeat this scene at the next bar function or, more importantly when entertaining your favorite client

This article is for people bearing a resemblance to the lawyer in the vignette above-in short, for those who know very little about, but are motivated to make some sense of the alphabet soup of environmental law-CERCLA, RCRA, TMDLs, WQSs, NEPA, ESA, CWA, CAA, and every other obscure environmental acronym clogging the West reporters. Fortunately (or unfortunately, depending on your perspective), there will be little "beef" in this article. If you want more than just the broth, and the pasta letters that float around in it, you will have to turn to the articles that follow this one. There you will find enough to satisfy the heartiest of environmental law appetites.

THE MENU

This article serves up the five federal environmental laws that are most likely to come up in conversation during legal functions in the state of Georgia.5 They are: a) the National Environmental Policy Act (NEPA);6 b) the Clean Water Act (CWA);7 c) the Clean Air Act (CAA);8 d) the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA);9 and e) the Resource Conservation and Recovery Act (RCRA).10 For each of the "Big Five," this article will provide the following: 1) some history about the act, 2) the purpose of the act, 3) how it works, and 4) how it is faring.

The Meal The First Course - The National Environmental Policy Act A Dollop of NEPA History

The history of NEPA shares the history of all environmental statutes since NEPA is an umbrella statute that guards against all environmental impacts-or at least tries to. Whether a given project is destined to pollute the water, soil, or air, NEPA theoretically is there to encourage federal decision-makers to do the right thing. Thus, all the environmental crises that led to the specific environmental statutes discussed below also contributed to President Nixon's signing of NEPA on January 1, 1970.

This law, more than any other, resulted from the general realization that arose during the 1960s that Americans were destroying America-the Land of the Free was becoming the Land of the Freely Polluted. Throughout the first half of the 20th Century, most people thought of the environment as a sponge that could soak up every environmental spill. In the 1960s it became clear that the sponge was saturated and there was no place to wring it out.

One of the first individuals to recognize this dilemma was Rachel Carson, a renowned nature author and a former marine biologist with the Fish and Wildlife Service. In her work, Carson dared to suggest that spraying our crops and our neighborhoods with DDT was not a particularly good idea.11 She was able to show that as DDT climbed up the food chain, it could have dramatic and deadly effects.12

Understandably, Carson's book made a lot of people realize that, if for no other reason, we need a clean environment because we are part of that food chain. Many of those people banded together to organize environmental protests during the 1960s and the first Earth Day in 1970. At the Earth Day marches across the country that year, environmentalists celebrated the passage of NEPA and called for more environmental legislation. President Nixon and Congress heard and answered these calls.

NEPA's Purpose

By enacting NEPA, Congress required the federal agencies to take the environment into account in authorizing projects and in granting permits. This might seem like a basic concept now, but it was somewhat revolutionary at the time.

How NEPA Works

The act, as it has been interpreted and implemented, provides that before the federal government takes any "action" that may affect the environment either positively or negatively, the "decision maker" must consider the impact that the action may have on the environment. Consequently, when the federal government considers funding or permitting a project, it must ensure that an "environmental assessment" or an "environmental impact statement" is prepared assessing the alternatives to the project and detailing the potential environmental harm and benefits associated with the project.

The environmental impact statement (EIS) is the more detailed of the two documents and is called for when a "major federal action[] significantly affecting the quality of the human environment" is being proposed.13 For projects that fall below this threshold, the federal agencies must prepare an environmental assessment (EA). The purpose of the EA is typically to determine whether an EIS is warranted.14

Although the federal agencies are required under NEPA to take a "hard look"15 at how the environment would be treated if the project were pursued, it is important to note that NEPA does not prevent a decision-maker from making an informed, but "bad" decision that would negatively impact the environment.16

How NEPA is Faring

Initially, NEPA was a powerful tool for environmentalists, who were able to slow down many federal and federally permitted projects while the courts and federal agencies attempted to interpret the act.17 Nowadays, federal agencies and project consultants are savvier about writing EAs and EISs, so NEPA is not as much of a factor in environmental litigation. Yet when someone is considering attacking a proposed project, NEPA is often the starting point in putting together an opposition strategy.18

The Second Course-The Clean Air Act A Lite History of the Clean Air Act

The Clean Air Act was enacted due in large measure to a series of episodic inversions that had deadly side effects. In such an inversion, a layer of warm air moves in over a town or city and traps colder air beneath it. Since hot air rises only until it is hotter than the air around it, the layer of warm air in these inversions acts as a ceiling to the rising smokestack and tailpipe fumes. As a result, in an air inversion, a city can soon become engulfed in its own pollution.

The first inversion of note occurred in Donora, Pa., in 1948.19 Twenty died. Although it sparked some research into the causes of air pollution, little was done to correct this "state" problem.20 It was not until the "Killer Smog" took residence over London in 1962 that people on both sides of the Atlantic took notice. In that inversion, at least 340 people died.21 Not to be outdone by the Brits, New York suffered a similar inversion the following year in which 200 to 400 people died.22

Although these inversions prompted the passage of the 1963 Clean Air Act and later amendments to this act, it was not until the 1970 amendments that Congress finally decided that the federal government needed to take charge of this interstate problem and impose national air quality standards.23

A Spoonful of Purpose

As explained in the 1990 amendments to the Clean Air Act, Congress designed the act to 1) protect and enhance the quality of the nation's air resources, 2) initiate and accelerate research to prevent air pollution, 3) ensure that the federal government could provide technical and financial assistance to state and local air pollution control efforts, and 4) encourage and assist the development and operation of regional air pollution prevention and control programs.24

How Does the Clean Air Act Work?

The Clean Air Act was amended in 1977 and again in 1990. In outline form, the current act looks like this: * Title I-regulates stationary sources (factories, etc.), regulates hazardous air pollutants, requires national ambient air quality standards, provides for the prevention of significant deterioration (PSDs); * Title II - regulates mobile sources (planes, trucks, and automobiles); * Title III - provides for general administration, citizen suits, labor standards, air quality monitoring; * Title IV - covers noise control; * Title IV 25- covers acid rain; * Title V - requires that "major sources" of air pollution obtain operating permits; * Title VI - covers stratospheric ozone protection.

Weighing in at...