Background (Encyclopedia of Global Warming)
For most of human history, the environment was to all intents and purposes unprotected by law. In Anglo-American law, the near-absolute dominion that was accorded to owners of property put little restraint on the right to consume, exhaust, or pollute resources at will. A nuisance lawsuit could be pursued if a neighbor deprived a property owner of the ability to enjoy such essentials as light, air, and water. The public trust doctrine restrained landowners from monopolizing access to navigable waters. Other than these impediments, American law left the environment open to even the most rapacious use. The preservationist movement of John Muir and Gifford Pinchot focused on conserving public lands and parks; it had little effect on private uses of land.
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Environmental Law (Encyclopedia of Global Warming)
This situation changed in the United States with the introduction of environmental laws in the twentieth century. The first environmental laws were an extension of nuisance laws and health and safety laws: protecting against environmental threats to the safety of the population, rather than the environment itself. But by the 1970’s, laws to protect the environment had found broad acceptance in American political and popular culture. The National Environmental Policy Act of 1970 (NEPA) established federal guidelines for protecting the environment. In the same year, Congress established the Environmental Protection Agency (EPA) as the federal authority to oversee enforcement of the environmental laws, and theClean Air Act Extension to control air pollution.
The Clean Water Act was enacted in 1972 to protect the purity and drinkability of water and to preserve wetlands. The Energy Policy and Conservation Act of 1975, as amended by the Alternative Fuels Act of 1988, mandated automobile fuel economy standards and encouraged the development of alternative fuels in vehicle use. The Comprehensive Environmental Response Compensation and Liability Act of 1980 provided a superfund program to clean up hazardous wastes.
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Global Climate Change and the Law (Encyclopedia of Global Warming)
In 2009, the United States contemplated legislation aimed directly at global warming; previously, legal controversies over global warming focused on the extension of existing environmental laws to greenhouse gases (GHGs). For example, the landmark case of Massachusetts v. EPA (2007) concerned the question of whether motor vehicular emissions of GHGs are air pollutants and thus subject to regulation under the Clean Air Acts (1963-1990). A major barrier in all environmental law litigation is the question of legal standing—who is permitted to bring a lawsuit on behalf of the environment. Normally a plaintiff must show a concrete and immediate harm.
In Massachusetts v. EPA, the U.S. Supreme Court allowed a coalition of environmental groups and state attorney generals to bring the lawsuit. After hearing evidence from both sides, the Court required the EPA to determine if carbon dioxide (CO2) emissions satisfy the definitions of an air pollutant under the Clean Air Acts and are thus subject to EPA regulation. Likewise, in Border Power Plant Working Group v. Department of Energy (2003), the federal government was required to consider power plant CO2 emissions in regulating the construction of power lines and grids. The administration of George W. Bush, however, did not believe administrative action was required as to climate change. The 2008 election of President Barack Obama signaled...
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Context (Encyclopedia of Global Warming)
Environmental legislation enacted since the 1970’s has provided some basis for regulation and litigation concerning CO2 emissions that many believe contribute to global warming. Environmentalists have made use of such historic legislation as the Clean Air Acts to try to compel the EPA to include reduction of GHGs under its regulatory mandate, a step resisted by President George W. Bush but revisited by the Obama administration. States, particularly in the northeast and California, have been more aggressive in enacting frameworks designed to reduce CO2 emissions in a cap-and-trade system.
Given the exclusive authority that the federal government retains over national environmental questions and interstate commerce, it is hard to know how effective state legislation can be. The industrialized nations have been active in enacting frameworks, initiatives, and treaties addressing climate change, but, given the nature of international competition and national sovereignty, the future of such essentially voluntary restrictions is uncertain. One of the largest questions facing Congress is how to integrate federal policy with both state and international initiatives.
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Further Reading (Encyclopedia of Global Warming)
Aspatore Book Staff, eds. The Legal Impact of Climate Change: Leading Lawyers on Preparing for New Environmental Legislation, Assessing Green Programs for Clients, and Working with Government Agencies on Climate Change Issues. Boston: Thomson West, 2008. Includes essays by lawyers on developments in regulating GHG emissions.
Gerrard, Michael, ed. Global Climate Change and U.S. Law. Chicago: American Bar Association, 2008. Provides comprehensive, in-depth essays examining all major aspects of U.S. law as it bears on global climate change.
Kushner, James. Global Climate Change and the Road to Extinction: The Legal and Planning Response. Durham, N.C.: Carolina Academic Press, 2009. Written by a law professor; examines broad-ranging economic, social, educational, technological, and legal strategies for reversing climate change. With helpful tables of relevant statutes, regulations, executive orders, and court cases.
Salzman, James, and Barton Thompson. Environmental Law and Policy. 2d ed. New York: Foundation Press, 2007. Summarizes the regulatory scheme of U.S. environmental law while emphasizing the policies and controversies underlying the law in a concise and compact manner.
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Environmental Law (West's Encyclopedia of American Law)
An amalgam of state and federal statutes, regulations, and common-law principles covering AIR POLLUTION, WATER POLLUTION, hazardous waste, the wilderness, and endangered wildlife.
Almost every aspect of life in the United States is touched by environmental law. Drinking water must meet state and federal quality standards before it may be consumed by the public. Car manufacturers must comply with emissions standards to protect air quality. State and federal regulations govern the manufacture, storage, transportation, and disposal of the hazardous chemicals used to make deodorants, hair sprays, perfumes, makeup, fertilizers, herbicides, pesticides, detergents, cleansers, batteries, and myriad other common goods and products.
Nuisance Modern environmental law traces its roots back to the common-law TORT of nuisance. A nuisance is created when an owner or occupier of land...
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Environmental Law (Great American Court Cases)
Up until the 1960s, environmental regulation in the United States was mostly left to state and local governments. There was very little, if any, national control. Since most regulation occurred at the city and state government level, it was difficult for authorities to enforce laws beyond their own territories, especially if the source of the pollution emanated from another region or state. Business and industries that caused large amounts of pollution could affect vast areas around them with little concern of either discovery or the payment of legal reparations.
The climate during the 1960s was ripe for the federal government to adopt a national strategy on environmental regulation. The country was becoming more aware that complete freedom for business and industry resulted in large scale environmental damage and that safety limits needed to be instituted to protect waterways, air, natural resources, and scenic areas.
Several elements influenced the national movement toward greater control over polluters. First, the 1960s was a decade of incredible commercial growth. There was greater production on the part of manufacturing and industry and that consequently resulted in greater consumption. More waste was produced, national cancer rates soared, and the public enjoyed an unbridled economic growth that brought with it a high price tag....
(The entire section is 2854 words.)