Environmental statutes and regulations are reactions to social problems causing risks to health or damage to the environment. They help ensure we have clean water and air, sustainably develop our resources, and protect areas of our country that have intangible value. These laws are necessary in such circumstances where the effects of present-day actions are often not felt until far in future, it is often difficult to point to a single source for a problem created by a combination of sources, and the value of the protected entity is difficult to quantify.
These laws usually take the form of three broad types of regulation: command and control regulation, market-based regulation, or information-based regulation. Federal government agencies, particularly the Environmental Protection Agency (EPA) and the Department of Interior, are responsible for the enforcement of these statutes, which are implemented through the agency-created regulations. Often these federal agencies have delegated this enforcement authority to the states.
The type of regulation that became widely known after the first major wave of environmental statutes in the 1970s was command and control regulation, which mandates or prohibits certain actions. It includes design standards or technology specifications, performance standards or emission limits, ambient or harm-based standards, and product bans or use limitations. Market-based regulation, on the other hand, uses market forces to encourage desired behaviors. It can include marketable allowances (i.e. carbon credits), pollution taxes, or subsidies. Information-based regulation requires disclosure, planning, or analysis.
Environmental plaintiffs can be citizens who are challenging government agencies’ enforcement of these laws, companies and businesses affected by the laws, or government agencies seeking a federal district court order to provide more force to their administrative enforcement actions. The beginning of any such action usually begins with the government agency (either federal or state depending on whether there has been delegation to the state on the issue). In this way, environmental law is also largely administrative law, which involves the rules that govern the operation of government agencies. However, there are also environmental tort claims, which are directed directly at the manufacturer.
This can take place when an agency is deciding to issue a new or changed rule, grant or deny a permit, or bring an enforcement action against an alleged violator. In doing so, the agency itself must follow guidelines outlined by the Administrative Procedure Act (APA), National Environmental Policy Act (NEPA), its own “enabling” statute and regulations, and many other statutes that may apply. Many of these statutes and regulations can create a cause of action (justification for bringing a complaint to a court) challenging an agency’s action from those in favor of greater environmental protection or those against greater environmental protection (depending on what the agency’s action entails).
Because of the complexity of these overlapping statutes, regulations, and entities, it is important to enlist an experienced environmental attorney, whether you wish to challenge the leniency or the strictness of an environmental action.