1.2: Environmental Laws and Regulations

A Short History of Environmental Legislation

Although environmental laws are generally considered a 20th-century phenomenon, attempts to legislate environmental controls have been made throughout history.

• In 2,700 B.C., the Ur civilization in the Middle East passed laws protecting the few remaining forests in the region.
• In 80 A.D., the Roman Senate passed a law to protect water stored for dry periods so it could be used for street and sewer cleaning.
• During the American colonial period, Benjamin Franklin argued for "public rights" laws to protect Philadelphia's citizens from industrial pollution.
• Animal welfare environmental action began at the beginning of the 20th century.
• In 1906, Congress passed the “Antiquities Act,” which authorizes the president to protect areas of federal lands as national monuments.
• A few years later, Alice Hamilton pushed for government regulations concerning toxic industrial chemicals. She fought unsuccessfully to ban the use of lead in gasoline and also supported the legal actions taken by women who were dying of cancer from their exposure to radium (see the book "Radium Girls" for this tragic story).
• During the early 1960’s, biologist Rachel Carson pointed out the need to regulate pesticides such as DDT to protect the health of wildlife and humans.

With the establishment of the Environmental Protection Agency (EPA) in 1970, environmental law became a field substantial enough for lawyers to specialize in that field. Since then, federal and state governments have passed numerous laws and created a vast network of rules and regulations regarding environmental issues.

Moreover, international organizations and agencies, including the United Nations, the World Bank, and the World Trade Organization, have also contributed to environmental rules and regulations.

Because of the legal and technical complexities of the subjects covered, those working with environmental laws must be knowledgeable in general law, science, health, and public policy.

Environmental laws encompass a vast range of subjects, including air and water quality, hazardous waste, and biodiversity. The purpose of these environmental laws is to prevent, minimize, remedy, and punish actions that threaten or damage the environment and those that live in it.

However, some people believe that these laws unreasonably limit the freedom of people, organizations, corporations, and government agencies by placing controls on their actions.

As of 2025, due to recent actions in the United States federal, state, and local governments, many environmental laws are being rolled back or removed from the legal framework entirely.

Historic U.S. Federal Environmental Laws

Early attempts by Congress to enact laws affecting the environment included the

• Antiquities Act (1906),
• the National Park Service Act (1916),
• the Federal Insecticide, Fungicide, and Rodenticide Act (1947),
• the Water Pollution Control Act (1956), and
• the Wilderness Act (1964), which protected large areas of pristine federal lands from development and ushered in the new age of environmental activism that began in the 1960’s.

NEPA and EPA

The most important pieces of environmental legislation were the two that marked the beginning of large-scale environmental policies. 

• the National Environmental Policy Act (NEPA) (1969), and
• the formation of the Environmental Protection Agency (EPA) (1970)

Their main objectives were to ensure that the environment would be protected from both public and private actions that failed to account for the costs of environmental damage. 

• Many consider NEPA to be the most far-reaching environmental legislation ever passed by Congress. The basic purpose of NEPA is to require government agencies to consider the environmental effects of their decisions by preparing detailed Environmental Impact Statements (EIS) for proposed projects.
• The EPA is ostensibly the government's environmental watchdog.
  • It is charged with monitoring and analyzing the state of the environment, conducting research, and working closely with state and local governments to devise pollution control policies.
  • It is empowered to enforce environmental policies.

Unfortunately, the EPA is sometimes caught in conflicts between the public, who want more regulation for environmental reasons, and businesses, who want less regulation for economic reasons. Consequently, developing a new regulation can take many years.

Large-Scale U.S. Federal Laws After 1970

After 1970, Congress enacted several other important environmental laws, all of which include provisions to protect the environment and natural resources, including:

• the Federal Clean Air Act (1970, 1977 & 1990), which established national standards for regulating the emission of pollutants from stationary and mobile sources.

• the Federal Water Pollution Control Act (1972), amended by the Clean Water Act (1977, 1987), which established water quality standards and provides for the regulation of the discharge of pollutants into navigable waters and for the protection of wetlands.

• the Federal Safe Drinking Water Act (1974, 1977 & 1986), which set drinking water standards for levels of pollutants, authorizing the regulation of the discharge of pollutants into underground drinking water sources.

• the Toxic Substances Control Act (1976), which provided for the regulation of chemical substances by the EPA and the safety testing of new chemicals.

• the Resource Conservation and Recovery Act (RCRA) (1976), which established cradle-to-grave regulations for the handling of hazardous wastes.

• the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) (1980), which provided for the cleanup of the worst toxic waste sites.

• the Food Security Act (1985, 1990), amended by the Federal Agriculture Improvement and Reform Act (1996), which discouraged cultivation of environmentally sensitive lands, especially wetlands, and authorized incentives for farmers to withdraw highly erodible lands from production.

Application and Enforcement of Federal Environmental Law

The application or enforcement of an environmental law is not always straightforward, and problems can arise.

• The biggest problems arise when Congress fails to allocate the funds necessary to implement or enforce the laws, which is the usual case.
• Administrative red tape may make it impossible to enforce a regulation quickly. It may also be unclear as to which agency (or branch of an agency) is responsible for enforcing a particular regulation.
• Agency personnel may decline to enforce a regulation for political reasons.

Finally, numerous alterations to federal laws are currently being made in real time. These will be covered as the course progresses.

U.S. State Laws

Most states, like California, have enacted their own environmental laws and established agencies to enforce them. California faced some of its first environmental challenges in the mid-1800’s, due to debris from hydraulic gold mining. Water quality concerns, dangers of flooding, negative impact on agriculture, and hazards to navigation prompted the state to act.

Some of California's environmental regulations have set the stage for similar federal laws, and California continues to set many environmental standards. For example,

• California established the nation’s first air quality program in the 1950s.
• Much of the federal Clean Air Act Amendments of 1990 was based on the California Clean Air Act of 1988.
• California also pioneered advances in vehicle emission controls, control of toxic air pollutants and control of stationary pollution sources before federal efforts in those areas.
• The Porter-Cologne Act of 1970, which set the base for water quality standards, also served as the model for the federal Clean Water Act.

California's state environmental regulations are sometimes more stringent than the federal laws (e.g., the California Clean Air Act and vehicle emissions standards). In other program areas, no comparable federal legislation exists. For example,

• The California Integrated Waste Management Act established
  • a comprehensive, statewide system of permitting, inspections, enforcement, and maintenance for solid waste facilities
  • sets minimum standards for solid waste handling and disposal to protect air, water, and land from pollution.
• Proposition 65 (Safe Drinking Water and Toxic Enforcement Act) requires the Governor to publish a list of chemicals that are known to the State of California to cause cancer, birth defects, or other reproductive harm.

Despite the state’s leadership in environmental programs and laws, the creation of a cabinet-level environmental agency in California lagged more than two decades behind the establishment of the federal EPA. Originally, the organization of California's environmental quality programs was highly fragmented. Each program addressed a specific environmental problem (e.g., the Air Resources Board), with enforcement responsibilities at the state and local levels.

It was not until 1991 that the California EPA was finally established, uniting the separate programs under one agency.

This is similar to what has happened in many states across the country.

International Treaties/Conventions

Conventions and treaties set forth international environmental regulations. These often result from efforts by international organizations such as the United Nations (UN) or the World Bank.

However, it is often difficult to enforce these regulations due to individual countries' sovereign rights. In addition, the rules and regulations set forth in such agreements may be non-binding recommendations, and countries may be exempt from such regulations for economic or cultural reasons.

Despite these problems, the international community has achieved some success via its environmental agreements. These include an international convention that placed a moratorium on whaling (1986) and a treaty that banned the ocean dumping of wastes (1991).

The UN often facilitates these international environmental efforts. In 1991, the UN enacted the Antarctic Treaty, which prohibits mining, limits environmental pollution, and protects the continent's animal species. The United Nations Environment Program (UNEP) is a branch of the UN that addresses global environmental issues. It has helped with several key efforts at global environmental regulations:

• The 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. As a result of this global agreement, industrialized countries have ceased or reduced the production and consumption of ozone-depleting substances such as chlorofluorocarbons.

• The Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. This agreement enhances the world's technical knowledge and expertise on hazardous chemicals management.

• The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). This agreement protects over 30,000 of the world's endangered species.

• In 1995 UNEP and the International Olympic Committee (IOC) signed a partnership agreement to develop environmental guidelines for sports federations and countries bidding to host the Olympic games.

• The Rotterdam Convention (1998) addressed the growing trade in hazardous pesticides and chemicals. Importing countries must now give explicit informed consent before hazardous chemicals can cross their borders.

• The International Declaration on Cleaner Production (1998). The signatories commit their countries to implement cleaner industrial production and subsequent monitoring efforts.

In 1992, the UN member nations committed their resources to limiting greenhouse gas (e.g., carbon dioxide) emissions at or below 1990 levels, as put forth by the UN Framework Convention on Climate Change. Unfortunately, the agreement was non-binding and by the mid-1990’s, it had had no effect on carbon emissions. The 1997 Kyoto Protocol was a binding resolution to reduce greenhouse gases. Although the United States initially supported the resolution, the Senate failed to ratify the treaty, and by 2001 the resolution was opposed by President Bush as threatening the United States economy. Unfortunately, many of the US's actions in international climate policy have been similar over the following 25 years.

Additional climate treaties will be discussed later in this text, as will other international conventions.