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Chapter 22
Environmental Law
Introduction
Chapter Twenty-Two addresses these questions:
• What are the alternative approaches to environmental protection?
• What are the Environmental Protection Agency’s responsibilities?
• What is the National Environmental Policy Act of 1970 about?
• What are the measures taken toward regulating water quality?
• What are the measures taken toward regulating air quality?
• What are the regulations related to regulating hazardous waste and toxic substances?
• What is the Pollution Prevention Control Act of 1990?
• What are the global dimensions of environmental regulation?
Achieving Teaching Excellence
Silent Participation
Instructors shouldn’t overlook the possibilities for creating class discussions in silent ways.
Some students have much to contribute, but their personalities make it difficult for them to speak
out in class. This section offers three ways to encourage meaningful silent participation.
First, if instructors have not already started using the computer to keep in-class
conversations going after class, then they should consider it. Most colleges and universities offer
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response, showing what they learned from the reading for that day. Then, they can collect the
responses, reply in writing, and return the response to each student in the next class session.
A final way to encourage silent participation is to engage in a process called “passing notes.”
This teaching technique is used by Dr. Peggy McIntosh at a teaching institute that encouraged
professors to create more inclusive classrooms. Instructors could ask students to take a piece of
Chapter Overview, Topic Outline, and Discussion Questions
Chapter Overview
During the late 1960s, environmental problems became a major national concern, which led
to the enactment of legislation to protect the environment and clean up existing problems. This
chapter first examines alternatives to the regulatory approach for solving pollution problems and
examines the primary agency responsible for enforcing environmental laws, the Environmental
Topic Outline
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I. Alternative Approaches to Environmental Protection
A. Tort Law
2. Negligence, an Alternative Tort Solution
B. Government Subsidies Approach
C. Emission Charges Approach
II. The Environmental Protection Agency
III. The National Environmental Policy Act of 1970
A. Threshold Considerations
B. Content of the EIS
1. Brodsky v. United States Nuclear Regulatory Commission
IV. Regulating Water Quality
A. The Federal Water Pollution Control Act
1. Point-Source Effluent Limitations
B. The Safe Drinking Water Act
V. Regulating Air Quality
A. The National Ambient Air Quality Standards
B. New Source Review
C. The Acid Rain Control Program
D. Climate Change
VI. Regulating Hazardous Waste and Toxic Substances
A. The Resource Conservation and Recovery Act of 1976
1. The Manifest Program
3. Enforcement of RCRA
B. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as
1. Pesticide Tolerances in Food
VII. The Pollution Prevention Act of 1990
VIII. Global Dimensions of Environmental Regulation
A. The Need for International Cooperation
B. The Transnational Nature of Pollution
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C. The Global Commons
D. Primary Responses of the United States
1. Research
IX. Summary
Discussion Questions for Chapter Twenty-Two
1. Explain relationships between tort law and the National Environmental Policy Act (NEPA).
Both tort law and the NEPA respond to environmental issues, but in very different ways.
Tort law responds after some sort of harm has already occurred. The aim of tort law is
2. Explain relationships between negligence and nuisance.
Both are torts that people can use in environmental cases to seek compensation for damage
or injuries caused by the environment. A nuisance is an unreasonable interference with
3. Explain relationships between the government subsidies approach and the emission charges
approach.
Both the government subsidies approach and the emission charges approach are alternative
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4. Explain relationships between the discharge permits approach and the direct regulation
approach.
Discharge permits provide an approach similar to emission charges. The government sells
5. Evaluate this statement: People ignore white collar crime in the area of environmental crime.
This statement is incorrect because the Environmental Protection Agency (EPA) seems to be
6. Explain relationships between Federal Water Pollution Control Act (FWPCA) and Safe
Drinking Water Act (SDWA).
7. Evaluate this statement: The Federal Water Pollution Control Act (FWPCA) ensures that the
water available in the public water supply system is safe to drink.
This statement is inadequate. It is the Safe Drinking Water Act, or the SDWA that ensures
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8. Explain the special difficulties in trying to regulate air pollution.
Air pollution is hard to control because it floats away and is hard to measure. When people
9. Evaluate this statement: The Environmental Protection Agency (EPA) has developed strong
regulations to combat indoor air pollution.
10. Explain why someone might think this statement is true: One of the problems with
environmental regulation is that people lack scientific knowledge concerning environmental
hazards.
This statement is true. For each kind of pollution, have students identify what people still
11. Explain relationships between the Resource Conservation and Recovery Act (RCRA) and
the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
of 1980.
The RCRA regulates the treatment, storage, and disposal of hazardous waste through a
12. Explain relationships between the Toxic Substances Control Act (TSCA) and the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA).
The TSCA fills in a gap left by RCRA and CERCLA. It regulates toxic substances by
ensuring that the least amount of damage will be done to human health and the environment
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13. Explain relationships between the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) and the Superfund Amendment and Reauthorization Act
(SARA) of 1986.
14. Why are international dimensions of environmental law especially important?
International dimensions of environmental law are especially important because pollution
Answers to Critical Thinking about the Law Questions, Case Summaries,
Answers to Review Questions, Review Problems, and Case Problems
Case Summary—Boomer et al. v. Atlantic Cement Co.
This case demonstrates why the tort of nuisance is ineffective as a means of controlling
pollution. Plaintiffs in this case brought an action against the defendant. They sought an
Suggested Answers to Critical Thinking Questions about the Law
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before it, not to solve major problems such as pollution. The judicial system is not equipped
2. The court makes the assumption that if the cement company has to pay damages that will
Case Summary—Brodsky v. United States Nuclear Regulatory Commission
This case is related to the environmental impact statement. The plaintiff, Richard L. Brodsky
claimed that the Nuclear Regulatory Commission (NRC) had not produced an environmental
impact statement (EIS) under the NEPA. The plaintiff had claimed that the environmental
Suggested Answers to Critical Thinking Questions about the Law
1. Yes, the same evidence can be used to overturn the original decision made by the court. For
this reason, it is not necessary that there can be only one judgment in a case.
Case Summary—Los Angeles County Flood Control District v. Natural Resources Defense
Council, Inc., et al.
This case involved Los Angeles County Flood Control District’s operation of a “municipal
separate storm sewer system” (MS4), a drainage system that collects, transports, and discharges
storm water. Because storm water is often heavily polluted, the Clean Water Act requires certain
MS4 operators to obtain a permit before discharging storm water into navigable waters. The
District has such a permit. The Natural Resources Defense Council and Santa Monica Baykeeper
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filed suit against the District alleging that the water quality measurements in the Los Angeles and
San Gabriel Rivers indicated violation of the permit. The district court granted summary
Answers to Review Questions
22-1. Under common law, those who are injured by pollution can sue using the torts of
22-2. Environmental impact statements (EIS) must be prepared for all proposed legislation or
federal action that significantly affects the quality of the human environment. EIS must
include a detailed statement of:
• The environmental impact of the proposed action
• Any adverse environmental effects that cannot be avoided should the proposal be
implemented
22-3. Emission charges make the polluter pay a flat fee on every unit of pollutant discharged.
22-4. Some people think the use of the EIS creates too much red tape. Those who write them
regularly know how to pass judicial scrutiny, and might not follow the plan. The
22-5. The Federal Water Pollution Control Act (FWPCA) strives to make sure that the water is
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22-6. The Federal Water Pollution Control Act (FWPCA) and the Clean Air Act both strive to
set an acceptable level of pollution. The FWPCA does so through point source effluent
Answers to Review Problems
22-7. The plaintiffs are likely to use tort law theories to recover against the defendant. In
particular, they are likely to use the theory of nuisance, which alleges an unreasonable
22-8. The text states that, “The standards for new stationary sources, established by the New
22-9. Yes, the injunction was granted. The Environmental Protection Agency (EPA) has power
22-10. One needs to know more about the disagreement between Idaho and the Environmental
22-11. Yes, Kantrell could be violating several federal laws, including the Federal Water
22-12. Yes, the defendant was still responsible under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA). Under CERCLA, a person who
Answers to Case Problems
22-13. The appellate court would not have ruled differently. It is because the court stated that it
was not its place to substitute the judgment that was made with regard to the Bureau of
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22-14. In this case, the appellate court will be likely to affirm the decision of the district court.
22-15. It is less likely that the appeals court would overturn the district court’s ruling. In order to
22-16. The Alabama Supreme Court held that contrary to what Lloyd’s asserted, Southern
22-17. The case was remanded back to the lower courts with the instruction to look closer at the
22-18. The court agreed with the Township’s position and granted its motion for summary
judgment, entering judgment in its favor on the Clean Water Act (CWA) claim. The court
held that the amendments to the CWA, accompanying regulations promulgated by the
Thinking Critically about Relevant Legal Issues
1. The author finds that the Kyoto Protocols are ineffective and because of that the United
2. The section about China is ambiguous because although the author believes that China will
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3. What is the United States doing to limit greenhouse emissions? This question is problematic
4. The opposition would say that although Kyoto may not be perfect, it’s a step in the right
direction. With the United States’ involvement, changes can be made, such as putting a cap