Environmental Law: An Overview
Environmental law is a body of law that addresses issues concerning the environment, natural resources, and land use. The earliest legal remedies available to address environmental problems were found under the common law doctrines of trespass and nuisance. While these doctrines are still valid, their effectiveness has been limited by the “right to farm” laws now enacted in all fifty states. For more information on “right to farm” laws, please see the Urban Encroachment Reading Room.
Congress began promulgating specific statutory protections for the environment in 1899 with the Rivers and Harbors Act, which provided a regulatory mechanism to limit pollution in the nation’s navigable waters. Modern environmental law began developing in the 1950s with the enactment of statutes such as the Federal Water Pollution Control Act (now referred to as the Clean Water Act (CWA)) and the Clean Air Act (CAA).
Biotechnology is a developing area of law that continues to impact environmental issues. Biotechnology, or genetic engineering (GE), is the “genetic modification of organisms by recombinant DNA techniques.” The products resulting from GE techniques are often referred to as genetically modified organisms (GMOs). Because federal policy has taken the position that biotechnology itself has no inherent dangers, products developed with such technology are regulated under existing laws in the same manner as non-biotechnology products. Three federal agencies have oversight over GE products: the United States Department of Agriculture (USDA), the Animal and Plant Health Inspection Service (APHIS), the Food and Drug Administration (FDA), and the Environmental Protection Agency (EPA).
Under this regulatory structure, APHIS is responsible for ensuring that agriculture is protected from pests and diseases. APHIS regulates GE crops under the Plant Protection Act (PPA). PPA provides the authority for APHIS to regulate GE crops as “biological control organisms” and de-regulate organisms that meet federal testing and safety requirements. The EPA regulates biopesticides, plants whose DNA has chemical properties and protections such as Round-Up Ready Corn and Soybeans. The EPA has the authority to regulate biopesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The FDA generally has authority over labeling foods containing GE components under the Federal Food, Drug, and Cosmetic Act (FDCA). Until 2016, there were no mandatory labeling requirements for foods containing GE components because such foods were deemed to be as safe as their traditional counterparts.
In 2016, Congress passed the National Bioengineered Food Disclosure Standard, which establishes a mandatory labeling requirement for all foods falling within the definition of bioengineered food. The USDA has the authority to promulgate the rules and regulations implementing this law. For more information, see the Biotechnology Reading Room.
Environmental laws affecting agriculture have rapidly developed over the past sixty years and cover a broad spectrum of issues– from pesticide use to erosion control, from water quality, quantity, and use, to particulate contamination of the air we breathe. Due to the wide range of environmental statutes and regulations, many of the topics covered in this reading room are also addressed in other places on this site. To find more detailed information on specific statutes, follow the links to the additional Reading Rooms provided below.
National Environmental Policy Act
To promote the prevention of environmental damage, Congress passed the National Environmental Policy Act of 1969 (NEPA). NEPA declared a national policy to protect the environment and created the Council on Environmental Quality (CEQ) within the President’s Executive Office. To implement the policy, NEPA requires that federal agencies consider the environmental impacts of any major federal action. A federal agency will first determine if its proposed action has been categorically excluded from NEPA regulation, as many EPA activities have been. If the project does not fit within any exclusion, then the agency must move forward with an Environment Assessment to evaluate if the project will have any environmental impact. If no impact is found, then a “Finding of No Significant Impact” is submitted. If the assessment reveals some impact, the agency will need to develop a detailed Environmental Impact Statement (EIS). Elements of the EIS include: a brief description of the project, including its purpose and the need to which the agency is responding; a description of all reasonable project alternatives; a description of the environment affected by the alternatives; and an analysis of the environmental consequences of each potential alternative. The completed EIS, in draft version, is then submitted for public comment. After the notice and comment period, a finalized EIS is issued. The final EIS must be issued before any work on the proposed project may begin.
Clean Water Act
The CWA is the primary legal and policy instrument for regulating the pollution of the nation’s waters. The EPA is the primary agency tasked with implementing and enforcing the CWA. However, it works in conjunction with state environmental agencies and the U.S. Army Corps of Engineers.
The objective of the Clean Water Act (CWA) is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” It operates by authorizing water quality standards for surface waters, requiring National Pollution Discharge Elimination System (NPDES) permits for “point source” discharges of pollutants into navigable waters, assisting with funding for the construction of municipal sewage treatment plants, and planning for control of nonpoint source pollution. “Navigable waters” is defined in the statute as the “waters of the United States.” It is a controversial term that has been further defined by agency regulations and numerous conflicting judicial interpretations. In November, 2021, the EPA announced the signing of a proposed rule that would revise the definition of “waters of the United States” yet again.
To regulate point source pollution, the EPA must issue an NPDES permit before any pollutant can be discharged from a point source into navigable water. “Pollutant” is broadly defined to include heat, waste, soil, rock, chemical materials, and biological materials. The permits set the allowable amount of pollutants in a discharge based on the water quality criteria and use designations of the impacted waterway. Point sources cover many manmade objects, including pipes, ditches, tunnels, and airplanes. However, they do not cover return flows from irrigated agriculture, small feedlots, or sewage from certain ships. A majority of agricultural activity will fall within non-point pollutant discharges. However, runoff from some concentrated animal feeding operations will trigger permitting requirements under the CWA.
The CWA also has specific provisions prohibiting the discharge of dredged materials into waters of the United States and wetland areas. This commonly includes fill materials from infrastructure development projects, such as the construction of dams or highways, but material from small acts such astilling up a wetland for row-crop production could also be prohibited. The USDA’s Natural Resources Conservation Service (NRCS) and the Corps of Engineers both have jurisdiction over specific issues related to the dredge/fill of agricultural wetlands areas.
CWA liability has been expanded in recent case law. A 2020 case from the Supreme Court determined that in some instances, pollutants discharged into groundwater that eventually reaches waters of the United States require CWA permits. The EPA is still determining the full scope of the Supreme Court’s decision. However, it is possible that more farms may be subject to CWA liability based on the case.
Clean Air Act
The Clean Air Act (CAA) was initially enacted in 1955 to protect the nation’s air quality and was amended in 1990 to its current form. The CAA seeks to protect human health and the environment from emissions that pollute ambient, or outdoor, air. It requires the EPA to establish minimum national standards for air quality and assigns primary responsibility to the states to ensure compliance with those standards by requiring the development of State Implementation Plans (SIPs). Areas not meeting the standards, referred to as nonattainment areas, are required to implement specified air pollution control measures. States are also prohibited from allowing continued activities that create significant air quality problems for downwind states. The CAA establishes federal standards for sources of 188 hazardous air pollutants, mobile sources of air pollutants, and the emissions that cause acid rain. Further, it establishes a comprehensive permit system for all major sources of air pollution, commonly referred to as Title V permits. The CAA addresses pollution prevention in areas with clean air and protection of the stratospheric ozone layer.
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
Congress enacted the original version of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in 1947. A significant revision in 1972 and amendments in 1996 are, the basis of current pesticide policy. FIFRA requires the EPA to regulate the production, sale, and use of pesticides in the United States through registration and labeling of pesticide products. The sale of any pesticide is prohibited in the United States unless it is registered and labeled. The EPA uses a cost-benefit analysis of the scientific data based on environmental, societal, and economic variables to determine the acceptable uses and conditions for use, if any, each pesticide. The analysis requires that the pesticide and its acceptable uses do not cause unreasonable adverse effects on people or the environment. In addition, FIFRA requires re-registration of pesticides, approximately every 15 years, based on new data that meets current regulatory and scientific standards. Facilities that produce pesticides are also subject to regulation.
Once registered, the manufacturer must prepare a label that meets EPA approval. The label must explain the permissible uses and required conditions for pesticide use, including protections for workers and provisions for disposal of containers. Some pesticides can be approved for “restricted use,” meaning a certification process is required for anyone that intends to work with the product. Pesticide label requirements from FIFRA preempt state and local laws; applying a pesticide inconsistent with the label instructions is a violation of federal law.
If a particular review or re-registration evaluation finds that a registered use may cause “unreasonable adverse effects,” the EPA may amend or cancel the registration. The EPA must provide notice and the opportunity to comment if it wishes to cancel or suspend a pesticide registration, unless it is determined that continued use would be an “imminent hazard,” at which time an emergency order may be issued to cease the use of the product. FIFRA also allows registrants to request cancellation or amendment of a registration to terminate selected pesticide uses. If a registration is canceled for one or more uses of a pesticide, FIFRA does not permit it to be sold or distributed for those uses in the United States
Endangered Species Act
The Endangered Species Act (ESA), signed into law in 1973, protects species identified as endangered or threatened with extinction and attempts to protect the habitat on which they depend. It is administered primarily by the Fish and Wildlife Service, a division of the Department of the Interior, and by the National Marine Fisheries Service, a division of the Commerce Department, for certain marine creatures.
All dwindling species of plants or animals, with the exception of pest insects, may be listed as either endangered or threatened according to assessments of the risk of their extinction. An endangered species is defined as “any species which is in danger of extinction throughout all or a significant portion of its range.” A threatened species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Secretary of the Interior decides to list the species based on the “best available” scientific and commercial information, with specific attention paid to the following factors: 1) damage or destruction of habitat, 2) overutilization of the species, 3) disease or predation, 4) existing protection, and 5) other factors affecting existence. A series of specific procedural steps are also required to ensure public participation in the decision.
Once a creature is listed as endangered or threatened, 16 U.S.C. § 1538 prohibits its “taking” as well as any interstate trade of the species or its parts without a federal permit. To “take,” under the ESA, means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
After a species is listed as threatened or endangered, the Secretary of the Interior will have specialized biologists develop species recovery plans and designate critical habitat, which is either where the species is found or, if it is not found there, where there are features essential to its conservation. Once the habitat is identified, special protections are put into place for the area and the creature.
The Secretary of the Interior may issue permits to allow “incidental take” of listed species for otherwise lawful actions. However, unlike many other environmental statutes, there is no specific agricultural exemption in the ESA. Landowners or developers granted “incidental take” permits will be required to develop a Habitat Conservation Plan. Other ways in which property owners can become involved in the species restoration process is through Safe Harbor Agreements and/or Conservation Agreements, both of which are voluntary contractual measures that provide guaranteed habitat for these species. Additionally, because the ESA does not entirely preempt state regulation, local governmental entities may place further restrictions on these listed species.
Federal Land Policy and Management Act
The Federal Land Policy and Management Act of 1976 (FLPMA) governs how public lands administered by the Bureau of Land Management (BLM) are to be managed. FLPMA calls for the management of public lands under the principles of multiple-use and sustained yield, requiring BLM to manage “public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people.” FLPMA directs BLM to manage public lands to protect the quality of their historical, ecological, environmental, scientific, and scenic values. This management also must provide food and habitat for wildlife and livestock, while maintaining the ability of the public to use the lands for recreation.
To achieve these objectives, FLPMA requires BLM to inventory public lands and their resources periodically and then develop resource management plans to govern individual areas. In creating these plans, BLM must consider the relative value of the natural resources located within a management area and plan for the commercial, recreational, and conservation uses of those resources. BLM is required to consider the current use of natural resources and consider how to preserve those resources for future use. FLPMA does not allow BLM to impair the productivity of public land permanently.
National Forest Management Act
Enacted in 1976, the National Forest Management Act (NFMA) was a response to lawsuits brought against the United States Forest Service (USFS) over its management of natural resources within national forests. The primary purpose of NFMA was to protect national forests from being permanently damaged by excessive logging and clear-cutting. NFMA requires the USFS to develop a land management plan for national forests, along with reports on the status and trends of the renewable resources located within national forests. Management plans developed under NFMA must be based on multiple-use and sustained-yield principles, meaning that the renewable resources of the national forests are to be utilized to meet the best needs of the public without impairing the overall productivity of the land. NFMA requires public participation in the development and revision of land management plans, requiring time for public comment during the drafting stage.
Additionally, NFMA establishes standards and guidelines for maintaining the protection of resources within national forests. The USFS is directed to prohibit irreversible soil and watershed damage, protect waters and wetland areas, revegetate roads unless the need for a permanent road is specified in a land management plan, and limit the size of clear cuts. While NFMA is meant to keep clear-cutting from permanently damaging national forests, it does not serve to limit timber activity altogether. In fact, NFMA requires the USFS to designate land suitable for specific outputs such as timber, livestock grazing, and oil and gas development within its land management plans. The purpose of NFMA is to safeguard the natural resources in national forests so that they can continue to be used in perpetuity according to the needs of the public.
Congress has enacted several voluntary programs that address environmental issues by encouraging good stewardship and conservation practices on agricultural lands. The most prominent of these are the Conservation Reserve Program, the Wetlands Reserve Program, the Environmental Quality Incentives Program, and the Conservation Stewardship Program.
The Conservation Reserve Program (CRP), administered by the Farm Service Agency (FSA), is the largest voluntary conservation program for private lands in the United States. It was initially designed back in 1985 to remove millions of acres of environmentally sensitive and highly erodible land from agricultural production. The predominant focus of CRP is to dramatically reduce the amount of soil erosion derived from agricultural production. Under CRP, producers enter into contracts for at least 10 years but no longer than 15 years in duration. These producers receive compensation from the government for removing the land from production and taking steps to improve water quality, prevent soil erosion, and reduce wildlife habitat losses.
The Wetlands Reserve Program (WRP) is a voluntary land retirement program that gives producers the opportunity to receive technical and financial assistance for the purpose of protecting, enhancing, or restoring a wetland on agricultural land. WRP is a long-term easement program under which producers may enroll specific tracts of land for 10 years, 30 years, or permanently. WRP is administered and implemented by the USDA’s Natural Resources Conservation Service (NRCS).
The NRCS also administers the Environmental Quality Incentives Program (EQIP). This is a working lands program that provides cost-share payments to producers and landowners who install structural, vegetative, and land management practices such as filter strips and manure-management facilities. Participants are required to develop and follow an NRCS-approved conservation plan for their land. EQIP contracts to set aside land typically have terms of ten years or less.
The Conservation Stewardship Program (CSP) replaced the late Conservation Security Program in the 2008 Farm Bill. It is a voluntary program that provides financial incentives and technical assistance to agricultural producers who promote conservation and improvement of soil, water, air, energy, plant and animal life, and other resource concerns on private and Tribal agricultural lands. This program is administered by the NRCS, which oversees the adoption and/or improvement of conservation activities on the enrolled lands, as well as the payment structure for the implementation of these practices.
Altogether, the United States Department of Agriculture, through the NRCS and the FSA, currently administers approximately two dozen federal conservation programs, including the four discussed above.
Hazardous Waste Acts
Several federal environmental statutes address the storage, handling, and disposal of hazardous waste. Enacted largely in response to the Love Canal disaster of the mid-1970s, the key pieces of legislation include the Resource Conservation and Recovery Act (RCRA), the Toxic Substance Control Act (TSCA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Resource Conservation and Recovery Act
Congress passed the Resource Conservation and Recovery Act (RCRA) in 1976, granting the EPA authority to control hazardous waste from the “cradle-to-grave,” encompassing the generation, transportation, treatment, storage, and disposal of these materials. RCRA also sets forth a framework for the management of non-hazardous solid wastes (i.e., garbage). The 1986 amendments to RCRA enable the EPA to address environmental problems that could result from underground tanks storing petroleum and other hazardous substances.
Recent case law from the Eastern District of Washington expanded the scope of RCRA. For example, a few dairies in Washington were found liable under RCRA for over fertilizing their fields with manure. Although RCRA expressly exempts animal waste used as fertilizer from RCRA liability, the Court found that over-applying manure negates the manure’s beneficial use, and therefore falls outside the exemption. However, in 2019, a district court in a different circuit held that an over-application of manure did not automatically make the application a “disposal” that rendered the manure “solid waste”; in this court’s view, the factual analysis must go further to make that determination. The impact of these cases on the agriculture industry will likely continue to unfold in the coming years.
Comprehensive Environmental Response, Compensation, and Liability Act
In 1976 Congress also enacted the Toxic Substance Control Act (TSCA). Under this act, the EPA was responsible for tracking and publishing a database of the numerous industrial chemicals currently produced or imported into the United States. The EPA repeatedly screens these chemicals and can require reporting or testing those that may pose an environmental or human-health hazard.
Four years later, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)- also known as “Superfund”- was enacted. This federal statute deals with discharges of hazardous waste into the environment by “potentially responsible parties.” Administered by the EPA, it develops a federal “superfund” through the collection of taxes on hazardous materials, which may be used to clean up uncontrolled or abandoned hazardous-waste sites as well as accidents, spills, and other emergency releases of pollutants and contaminants into the environment. Potentially responsible parties who can be identified bear the burden of the clean-up costs under joint and several liability. For abandoned sites, or those where responsibility cannot be established, the fund created by CERCLA is used for the cleanup.