Environmental Legal Frameworks: What Are They and Why Do They Matter?

According to the United States current president, air and water are at a “record clean.” I’m not entirely sure what records he’s referring to, but he isn’t wrong that air and water have gotten cleaner in his lifetime, thanks to environmental laws. Modern environmental law is entering its fifth decade, and is to thank for providing the nation with clean air and water and stopping species from going extinct. Knowing where these laws came from and how they work to protect the environment is crucial for continued protections in the future, especially when people touting the United States environmental quality actively limit the government’s ability to do so.

Many of the most relevant environmental legal frameworks today were enacted in the 1970s, in response to increasing public awareness and concern stemming from high profile environmental disasters. How these laws would be applied was largely unclear when they were passed.

As a brief civics refresher: Congress passes law, federal agencies create specific policies based on those laws, and courts interpret the laws and policies. These different actions create legal frameworks. When Congress passed its first set of environmental laws, it sought to identify behavior that harmed the environment and manage those behaviors. In the years since, regulatory agencies have implemented these laws through policies of their own, and the processes through which they do this has been refined by the courts. Here is a list of the major environmental laws in the United States, who deals with them, and how the laws developed in the real world.

  1. The National Environmental Policy Act

The National Environmental Policy Act, commonly referred to as NEPA, was the first major federal environmental law and was signed on January 1, 1970. NEPA requires federal agencies to review the environmental impacts of major actions. Many things can be a “major action” requiring a NEPA review, ranging from formal policy to the approval of a permit. The review process can result in an Environmental Assessment, a Finding of No Significant Impact, or an Environmental Impact Statement. Any federal agency may need to conduct one of these reviews under NEPA, and the process is ultimately meant to ensure that agency actions cause minimal  harm to the environment.

  1. The Cuyahoga on fire in 1952, one of the 13 times it caught fire since 1868. Source: Ohio History Central

    The Clean Water Act of 1972

The Federal Water Pollution Control Act of 1948 was significantly expanded by the Clean Water Act of 1972. The Clean Water Act amendments were inspired by events like the burning of the polluted Cuyahoga River. The Clean Water Act allows the Environmental Protection Agency to regulate point source pollution. Point source pollution comes from a single, identifiable source, like discharge from pipes in factories or sewage treatment, or even from a manure ditch on a hog farm. Nonpoint source pollution is regulated indirectly by the EPA through the Clean Water Act. Nonpoint pollution does not have a single identifiable source, like nutrient pollution from fertilizer used on a corn farm. The Clean Water Act does not make pollution illegal, but instead requires polluters to get a permit to pollute from the EPA. The Clean Water Act is also meant to minimize the loss of wetlands and prevent oil spills. The US Army Corps of Engineers and individual states have some additional duties under the Clean Water Act. As the EPA has implemented the Clean Water Act, the activities the agency regulates under the Act expanded to include discharges to groundwater and nutrient pollution.

  1. Smog over Los Angeles. Source: Wikimedia

    The Clean Air Act of 1970

The Clean Air Act was passed in 1970, after dense smog had become visible in the air over many of the nation’s largest cities. The Act underwent major revisions in 1977 and 1990. The Clean Air Act requires the EPA to create air quality standards for pollutants. One of the most important aspects of the Clean Water Act are the national ambient air quality control standards. These standards apply to 6 different pollutants, and require states to regulate those pollutants. Like the Clean Water Act, individual states share some duties with the EPA under the Clean Air Act. Throughout the life of the Clean Air Act, the number of regulated substances and activities has grown, like stricter limits on pollution that crosses state lines and rules for exhaust from cars and trucks. The Obama administration used the Clean Air Act to regulate CO2 emissions by power plants in the Clean Power Plan, under the theory that CO2 was an air pollutant (an interpretation of the law approved by the Supreme Court in 2007). The Trump administration began to repeal the Clean Power Plan, but that decision is subject to review by federal courts.

  1. Very cute, very endangered polar bears. Source: Wikimedia

    The Endangered Species Act of 1973

The United States’ protection of species threatened with extinction began in the late 19th Century after the bison and whooping crane nearly disappeared and the passenger pigeon went extinct. Efforts to protect individual species and specific groups of species continued in the first half of the 20th Century for migratory birds, whales, and bald eagles. A predecessor to the Endangered Species Act was passed in 1966, known as the Endangered Species Preservation Act. This original act allowed for individual species to be listed as endangered and for those species to be protected. It also required agencies to preserve habitat for these species and established the National Wildlife Refuge System.

The Endangered Species Act of 1973 significantly expanded upon the 1966 Act, providing protection for species listed as endangered and the ecosystems they depend on. This new act directed the Fish and Wildlife Service (FWS) to implement the act for terrestrial species, and the National Oceanic and Atmospheric Administration (NOAA) to implement it for marine species. Specifically, Section 7 of the law requires federal agencies to consult with FWS and NOAA to ensure that their actions do not jeopardize the existence of any listed species. Federal agencies are required to carry out an Endangered Species Act consultation when they carry out an action, fund, or authorize one that could affect a species listed as endangered or critical habitat for their survival. Outside of government actions, the Endangered Species Act prohibits anyone from harassing or killing endangered species. Currently, there are over 1000 species listed under the Act, and it has been remarkably successful at stopping species from going extinct.

NEPA, the Clean Water Act, Clean Air Act, and the ESA are the most important laws in a much larger and more complicated suite of environmental laws in this country. As a whole, these laws force the US to clean up air and water, protect species, and think about the environmental impacts of its actions. The regulations passed by the EPA, NOAA, and other agencies charged with enforcing these laws are what make them effective. These regulations are also the “red tape” that is a constant political target by those who take pride in the nation’s clean air and water. Without the regulations that give environmental laws teeth, business may have lower bottom lines but rivers will burn, cities will be shrouded in smog, and bears, wolves, and eagles will disappear.

Every Thursday through April and May, Currents is covering the past, present, and future of the conservation movement in the U.S. and beyond. This is the third article in the series, read the first article here, and the second here.