From Nuisance Laws to the Green New Deal: Four Facts You Might Not Know About the History of Environmental Regulations

Whatever your politics, there’s no denying that environmental issues are in the news. Although the Green New Deal, a non-binding resolution put forward by Rep. Ocasio-Cortez, failed in the Senate on March 26, the discourse around climate change is not going anywhere and is likely to be a major issue in the 2020 presidential race. Although the future of environmental regulation remains uncertain, looking at its history may provide some insight. In preparation for Earth Day 2019, check out four facts you might not know about the development of Environmental Law as a practice area:

• The first environmental regulations were common law doctrines. Before the first environmental statutes were enacted, lawsuits over activities such as pollution were enforced under nuisance laws or the public trust doctrine, which, among other things, requires lakes and streams to be maintained for drinking water and recreation (in most states). Think back to law school - Aldred’s Case created a private right to be free of extreme smells, and Rylands v. Fletcher established that a strict liability standard could be used to prove negligence in cases where, for instance, an exploding dam flooded a neighbor’s property. The limitation on using private nuisance actions to prevent pollution was that it required proof of damage to private land, and was inadequate to handle threats to natural resources (think oil spills out on the ocean). These doctrines still do come into play, however - while the Environmental Protection Agency (EPA) does not regulate smells, the neighbors of hog farms have filed nuisance claims against agricultural operations over the famously noxious odors that sometimes result.  

• The first environmental legislation in the U.S. was enacted in 1899 - and it’s still good law! The Rivers and Harbors Act of 1899 made it a misdemeanor to dump refuse into any navigable waters (or tributaries thereof), as well as to excavate, fill, or make other modifications to navigable waterways without a permit. Although many of the provisions of this Act are now regulated by the Clean Water Act, the Rivers and Harbors Act still provides supplemental jurisdiction for lawsuits over certain kinds of water pollution. Fun fact: the Act is administered by the Army Corps of Engineers rather than the EPA, except where it applies to bridges and causeways, in which case it is enforced by the U.S. Coast Guard (fun with administrative law!). Most other environmental regulations we are more familiar with, like the National Environmental Policy Act (which established the EPA) were first passed under President Nixon in the 1970s, in response to the rise of the environmental movement.

• Every state has its own Environmental Protection Agency, in addition to the federal EPA. State-level EPAs are responsible for enforcing both federal laws and regulations and state and local rules. Federal regulations are the floor, but states may regulate beyond what the federal EPA requires, addressing issues specific to that state. For example, Florida bans many kinds of snakes from being sold, because people would buy non-native snakes and then release them into the Everglades when they got too big. This practice led to a situation in which invasive species threaten the native animals - in fact, Florida now pays a team of (permitted) bounty hunters to capture and euthanize invasive Burmese pythons.

• Recent climate change litigation may open up new avenues for environmental regulation. The possibility of major disruptions brought on by climate change is not exciting to most people, but it may create new opportunities for lawyers (hey, silver linings!). A lawsuit that was first filed in 2015, Juliana v. United States, is moving forward once again since taking the unprecedented tactic of pursuing an injunction on fossil fuel extraction. The unusual lawsuit alleges that the U.S. government has failed to take steps to reduce carbon dioxide emissions and is denying the plaintiffs - twenty-one U.S. minors - the right to a safe and stable climate system. A project at Columbia Law School’s Sabin Center for Climate Change Law maintains a database of other climate-related litigation, which includes claims from a diverse set of legal theories ranging from the public trust doctrine to the Freedom of Information Act.

For recent updates on environmental law issues, check out Lawline’s Energy & Environment 2019 Curriculum!