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Laws at the Heart of American Environmental Policy

July 29, 2021
Windfarm windmills stand over meadows on a sunny, slightly cloudy day.

American environmental laws protect our health and the nation’s economic viability. Also referred to as environmental and natural resource laws, they protect the land, air, water and soil, and prevent and reduce environmental pollution while managing natural resources.1 Since 1969, the U.S. Congress has passed or amended many environmental laws which minimize pollution and other environmental impacts of human action.2

Read on to explore the laws at the heart of American environmental policy.

The Bedrock of Environmental Protection

Four federal laws comprise the foundation for protecting our environment:

1. Clean Air Act
In 1970, Congress established much of what comprises the present-day Clean Air Act (CAA), and made significant revisions in 1977 and 1990. The CAA requires the U.S. Environmental Protection Agency (EPA) to create national ambient air quality standards (NAAQS) for six types of pollutants: particulate matter, ozone, sulfur dioxide, nitrogen dioxide, carbon monoxide and lead.3 The NAAQS are the maximum levels allowed by the federal government for the six pollutants. The CAA requires each state to implement a plan to meet the NAAQS.

Despite the Clean Air Act, it is difficult for the EPA to tax carbon dioxide emissions. This is important because, to date, the federal government has yet to impose a price on carbon. Many bills have been introduced into Congress to price carbon emissions through a carbon tax. These bills imply that the EPA does not have the authority to price carbon emissions. Former EPA Assistant Administrator and General Counsel E. Donald Elliot has argued that, under a 1952 federal statute called the Independent Offices Appropriation Act, the EPA has the authority to impose a carbon tax because it would not be a tax but a user fee.4

2. Clean Water Act
Enacted in 1972, the Clean Water Act (CWA) is the federal government’s main tool to protect streams, lakes and wetlands. The EPA and the U.S. Army Corps of Engineers enforce the act. Some argue that the act’s definition of navigable waters as the “waters of the United States, including the territorial seas” is vague and needs to be narrowed to leave regulation of waters to states. Others think that the definition of the waters of the U.S. needs to be broad to give the federal government the authority to protect intrastate waters, headwater streams and isolated wetlands. The battle for clarity of the act continues and the courts check the rules federal agencies enact to establish the act’s jurisdiction over certain waters.5

Several Supreme Court decisions have restricted the CWA’s jurisdiction and, as a result, many previously protected wetlands, headwaters and intermittent streams are no longer protected and in danger of degradation.

The Clean Water Act has not adequately addressed non-point sources of pollution, which include the polluted runoff from fields, lawns, septic tanks and abandoned mines. It leaves the control of these sources to state and local governments, which tend to utilize voluntary management instead of regulation to reduce them.

3. Energy Policy Act
Signed into law in 2005, the Energy Policy Act created renewable fuel standards, mandated a twofold increase of biofuels and provided $14.5 billion of energy-related tax incentives. According to the Congressional Research Service, this Act was “spurred by rising energy prices and growing dependence on foreign oil” and “shaped by competing concerns about energy security, environmental quality, and economic growth.”

Energy policy is a national and a local issue, and conflicts over it sometimes arise between the federal government and individual states. In the early 2000s, for example, California tried to block a proposed liquefied natural gas import terminal. The Federal Energy Regulatory Commission argued that it had sole authority approval. Congress intervened and, through the Energy Policy Act, gave the FERC the sole federal permitting authority for liquefied natural gas import and export terminals.

4. National Environmental Policy Act
Enacted in 1970, the National Environmental Policy Act (NEPA) requires federal agencies to conduct environmental impact assessments of each proposed “major federal action,” including permit decisions, adoption of agency policy, formal planning and agency projects. NEPA was enacted as a result of public pressure concerning the environmental impacts of human activity. It established a national policy for the environment and the Council on Environmental Quality (CEQ).6

Reviews conducted under NEPA can be challenged in court, as can changes to the environmental review process. For example, under the Trump administration, the CEQ rescinded guidance for how federal agencies address greenhouse gases in NEPA reviews. Litigation ensued, including lawsuits brought by Virginia, California, New York and the District of Columbia. When carbon dioxide emissions in the United States exceeded 415 parts per million—the highest level in history—Department of Interior Secretary David Bernhardt received Congressional criticism for not doing enough to combat climate change.7

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Sources
1. Retrieved on July 14, 2021 from nature.org/en-us/about-us/who-we-are/how-we-work/policy/environmental-conservation-laws/
2. Retrieved on July 14, 2021 from content.next.westlaw.com/0-503-4622?__lrTS=20210205132930881&transitionType=Default&contextData=(sc.Default)&firstPage=true
3. Retrieved on July 14, 2021 from epa.gov/clean-air-act-overview
4. Retrieved on July 14, 2021 from eli.org/vibrant-environment-blog/tax-another-name-epas-existing-authority-impose-carbon-user-fee
5. Retrieved on July 14, 2021 from eos.org/opinions/new-clean-water-act-rule-leaves-u-s-waters-vulnerable
6. Retrieved on July 14, 2021 from ceq.doe.gov/
7. Retrieved on July 14, 2021 from washingtonpost.com/news/powerpost/paloma/the-energy-202/2019/05/16/the-energy-202-trump-s-interior-chief-hasn-t-lost-any-sleep-over-new-climate-record/5cdc4fd01ad2e5092403d1da/

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