US Environmental Law

Foundations of US Environmental Law

US environmental law is a body of federal statutes, regulations, and common law doctrines protecting the environment and public health. The modern framework emerged in the late 1960s and early 1970s, catalysed by growing environmental awareness sparked by works such as Rachel Carson’s Silent Spring (1962), the 1969 Cuyahoga River fire, and the first Earth Day in 1970. Congress responded with landmark legislation establishing the Environmental Protection Agency (EPA) by Reorganization Plan No. 3 of 1970. The EPA administers most federal environmental statutes through regulations codified in Title 40 of the CFR. States may implement federal programmes through delegated authority, operating under a cooperative federalism model in which the EPA sets minimum national standards and states assume primary implementation subject to federal oversight.

The National Environmental Policy Act

The National Environmental Policy Act (NEPA) , 42 USC §§ 4321-4370h, requires federal agencies to prepare an environmental impact statement (EIS) for major federal actions significantly affecting the environment. The EIS process mandates analysis of environmental effects, consideration of alternatives including the no-action alternative, and public disclosure. The Council on Environmental Quality implements NEPA, providing for categorical exclusions, environmental assessments (EAs), and findings of no significant impact (FONSIs).

Air and Water Pollution Control

The Clean Air Act (CAA) , 42 USC §§ 7401-7671q, requires the EPA to establish National Ambient Air Quality Standards (NAAQS) for criteria pollutants including particulate matter, ozone, nitrogen dioxide, sulphur dioxide, carbon monoxide, and lead, at levels protecting public health with an adequate margin of safety (primary standards) and public welfare (secondary standards). States develop State Implementation Plans (SIPs) demonstrating how they will achieve and maintain NAAQS compliance. The 1990 amendments introduced a cap-and-trade programme for acid rain and maximum achievable control technology (MACT) standards for hazardous air pollutants under section 112.

The Clean Water Act (CWA) , 33 USC §§ 1251-1387, prohibits pollutant discharges into navigable waters except under a National Pollutant Discharge Elimination System (NPDES) permit. The CWA’s jurisdictional scope — defining “waters of the United States” — has been shaped by Rapanos v. United States (2006) and Sackett v. EPA (2023), the latter requiring a continuous surface connection to traditional navigable waters.

Hazardous Waste and Contaminated Sites

The Resource Conservation and Recovery Act (RCRA) , 42 USC §§ 6901-6992k, establishes a cradle-to-grave framework for hazardous waste, covering generation, transportation, treatment, storage, and disposal. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) , 42 USC §§ 9601-9675 (Superfund), imposes strict, joint and several liability on potentially responsible parties — current and former owners, arrangers, and transporters — for contaminated site remediation, with limited defences including acts of God, acts of war, and the innocent landowner defence.

Toxic Substances and Endangered Species

The Toxic Substances Control Act (TSCA) , 15 USC §§ 2601-2697, authorises EPA regulation of chemical substances. The 2016 Lautenberg Act mandated affirmative EPA risk evaluation of existing chemicals. The Endangered Species Act (ESA) , 16 USC §§ 1531-1544, provides for species listing, critical habitat designation, and the prohibition of taking, with Section 7 requiring federal consultation to avoid jeopardy to listed species.

Common Law and Environmental Justice

Common law remedies supplement federal regulation. Public nuisance actions address interference with public environmental rights; private nuisance addresses unreasonable land-use interference; trespass requires unauthorised physical intrusion; and strict liability applies to abnormally dangerous activities under Rylands v. Fletcher and the Restatement (Second) of Torts.

The environmental justice movement addresses disproportionate pollution siting in low-income and minority communities. Executive Order 12898 (1994) directed federal agencies to address disproportionate environmental effects, and the Justice40 initiative commits 40% of certain federal investments to disadvantaged communities.

Climate Change and the Major Questions Doctrine

EPA authority to regulate greenhouse gases was affirmed in Massachusetts v. EPA (2007), in which the Supreme Court held that carbon dioxide and other greenhouse gases are air pollutants within the meaning of the Clean Air Act. The Obama administration’s Clean Power Plan, designed to reduce carbon emissions from existing power plants under CAA section 111(d), was invalidated in West Virginia v. EPA (2022) through application of the major questions doctrine, requiring clear congressional authorisation for agency assertions of regulatory authority over matters of vast economic and political significance. This doctrine, alongside the overruling of Chevron deference in Loper Bright Enterprises v. Raimondo (2024), has substantially constrained EPA regulatory flexibility. The Inflation Reduction Act of 2022 provides approximately $369 billion in tax credits, grants, and loan programmes for clean energy, carbon capture, and emissions reduction technologies, reflecting a legislative preference for market-based incentives over command-and-control regulation.

Citizen Suits

Most federal environmental statutes include citizen suit provisions authorising private enforcement against violators and, in some cases, against the EPA for non-discretionary duty failures. The CWA, CAA, RCRA, and CERCLA all include such provisions, with attorney’s fees awards facilitating public-interest enforcement.