Congress' Power To Create Federal Anti-Pollution Laws

Since the 1960s, the US Congress has passed several laws to curb environmental pollution, including the Clean Water Act, the Pollution Prevention Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and the National Environmental Policy Act. These laws are passed under the authority of the Interstate Commerce Clause of the US Constitution, which allows Congress to regulate anything that affects interstate commerce. While Congress has not generally preempted state laws on air and water pollution and solid waste management, it has set minimum standards that states must meet. Federal environmental laws are enforced by the Environmental Protection Agency (EPA) and, in some cases, through private litigation. The EPA can also facilitate coordination among air pollution prevention and control agencies and provide grants to state agencies for pollution control.

The Clean Water Act

Congress has passed significant legislation to govern environmental law and policy, including the Clean Water Act (CWA). The CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States and sets quality standards for surface waters.

The basis of the CWA was enacted in 1948 as the Federal Water Pollution Control Act, but it was significantly reorganized and expanded in 1972. The 1972 amendments established the basic structure for regulating pollutant discharges into US waters and gave the Environmental Protection Agency (EPA) the authority to implement pollution control programs.

The CWA made it unlawful to discharge any pollutant from a point source into navigable waters without a permit. Point sources are discrete conveyances such as pipes or man-made ditches. The EPA's National Pollutant Discharge Elimination System (NPDES) permit program controls these discharges. Industrial, municipal, and other facilities must obtain permits if their discharges go directly into surface waters.

The CWA also provides for research, enforcement, and state assistance in efforts to curb water pollution. The EPA has developed national water quality criteria recommendations for pollutants in surface waters and set wastewater standards for industry.

The Pollution Prevention Act

In 1990, the United States Congress passed the Pollution Prevention Act (PPA) to address the country's annual production of millions of tons of pollution and the tens of billions of dollars spent annually to control it. The Act focuses on reducing pollution through cost-effective changes in production, operation, and raw materials use.

The PPA defines "source reduction" as:

> any practice which reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment (including fugitive emissions) prior to recycling, treatment, or disposal; and reduces the hazards to public health and the environment associated with the release of such substances, pollutants or contaminants.

The Act establishes a national policy implemented by the Environmental Protection Agency (EPA). This policy states that:

• Pollution should be prevented or reduced at the source whenever feasible.
• Pollution that cannot be prevented should be recycled in an environmentally safe manner whenever feasible.
• Pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible.
• Disposal or other release into the environment should only be employed as a last resort and should be conducted in an environmentally safe manner.

The PPA directs the Administrator of the EPA to establish an office to promote pollution prevention through source reduction. The Administrator is also tasked with developing and implementing a source reduction strategy, which includes:

• Establishing standard methods for measuring source reduction.
• Coordinating and promoting source reduction activities and techniques in federal agencies and businesses.
• Improving coordination of, streamlining, and assuring public access to data collected under federal environmental statutes.
• Establishing a training program on multimedia source reduction opportunities.
• Making recommendations to Congress to eliminate barriers to source reduction, including the use of incentives.
• Developing and disseminating model source reduction auditing procedures designed to highlight source reduction opportunities.
• Establishing an annual award program to recognize companies with outstanding or innovative source reduction programs.

The PPA also authorizes the Administrator to provide matching grants to states for programs that promote source reduction by businesses. The Act sets forth criteria for evaluating and awarding these grants, including specific technical assistance, targeting assistance to businesses, and providing training in source reduction techniques. Federal funds for such programs are limited to 50% of the funds made available to a state each year.

The Comprehensive Environmental Response, Compensation, and Liability Act

CERCLA's primary focus is on the cleanup of inactive hazardous waste sites and holding accountable those responsible for the disposal of hazardous substances, including arrangers, transporters, and current or former owners of such facilities. The Act outlines two basic ways to respond to a release: through removal or remedial action. The EPA can either conduct the response itself and seek to recover costs from responsible parties, compel those parties to perform the cleanup, or enter into a settlement.

CERCLA identifies the classes of parties liable for the cost of responding to releases of hazardous substances. It also specifies when federal installations must report such releases and outlines the cleanup procedures they must follow. The Act delegates response authorities to the EPA and, in some cases, the Coast Guard. Generally, the head of the federal agency has the authority to address releases within their jurisdiction.

CERCLA also establishes the Hazardous Substance Superfund, which provides financing for cleanup and enforcement actions. While the goal is to have polluters pay for these expenses, the EPA may use Superfund monies for sites with no identifiable responsible parties or to respond quickly to a release. The EPA is authorized to implement the Act across all 50 states and US territories, coordinating with state environmental protection or waste management agencies.

The Superfund Amendments and Reauthorization Act (SARA) of 1986 further reauthorized CERCLA to continue its cleanup activities, adding site-specific amendments, clarifications, and technical requirements, including additional enforcement authorities.

The Clean Air Act

Congress has passed significant legislation governing environmental law and policy, including the Clean Air Act (CAA). The Clean Air Act is a comprehensive federal law that regulates air emissions from stationary and mobile sources. The Act was designed to "protect and enhance the quality of the Nation's air resources" and to promote research and provide assistance to state and local governments in an effort to combat air pollution.

The 1977 amendments set more rigorous requirements for reducing emissions in areas that did not meet the NAAQS and established the Prevention of Significant Deterioration (PSD) regulations for areas that already met the NAAQS. The PSD regulations are designed to prevent any significant deterioration in air quality above an established baseline level. The 1990 amendments to the CAA were intended to meet unaddressed or insufficiently addressed problems such as acid rain, ground-level ozone, stratospheric ozone depletion, visibility, and air toxics.

The Resource Conservation and Recovery Act

The RCRA gives the Environmental Protection Agency (EPA) the authority to control hazardous waste from its creation to its disposal, including generation, transportation, treatment, storage, and disposal. It also establishes a framework for managing non-hazardous solid waste. The 1986 amendments to the RCRA enabled the EPA to address environmental issues that could arise from underground tanks storing hazardous substances, such as petroleum.

The Federal Hazardous and Solid Waste Amendments (HSWA) are the 1984 amendments to the RCRA that focus on waste minimization and phasing out land disposal of hazardous waste. The HSWA also includes mandates for increased EPA enforcement authority, more stringent hazardous waste management standards, and a comprehensive underground storage tank program.

The RCRA sets national goals for protecting human health and the environment from the potential hazards of waste disposal. It aims to conserve energy and natural resources, reduce waste generation through source reduction and recycling, and ensure waste is managed in an environmentally sound manner. The EPA's RCRA Community Engagement and Technical Assistance Program (RCRA CETA) assists communities in addressing environmental and health concerns related to waste management by providing access to support, resources, and information.

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