Federal Environmental Laws Affecting Land Use: An Overview
Climate change is the term on everyone’s tongue, but the 2021 Infrastructure Investment and Jobs Act, with its goals to half US carbon emissions by 2030 and become a net-zero emissions economy by 2050, is not the only major federal law that continues to shape land use in the United States. From the now defunct navigable waters protection in the 1899 Rivers and Harbors Act to the alive and kicking 1973 Endangered Species Act, a web of evolving laws and regulations touches upon every square inch of land in the country. This course offers an overview of the federal framework for such laws, including enforcing agencies (Hint: It’s not just the EPA) and their more detailed regulations interpreting the laws. We will also touch upon the big 6: Clean Water Act, Clean Air Act, CERCLA, Coastal Zone Management Act, the National Environmental Policy Act (NEPA), and the Endangered Species Act. Finally, we conclude with historical context, including former president, Teddy Roosevelt, and how Rachel Carlson’s Silent Spring galvanized the nascent environmental movement in the United States and led to many of the subsequently adopted laws.
- [Peter] Hello, my name is Peter Lupo from Hoplite Communications. I'm here to do a discussion today about federal environmental laws affecting land use, just an overview. So lemme just go over what we're gonna talk about. We're gonna talk about federal environmental laws and regulations affect virtually every aspect of land use of the United States you'll find is pervasive. From residential to industrial, from public to private, from development to demolition, you're gonna find environmental laws that impact a project. Federal jurisdiction derives from three principle areas. And most of you be familiar with this, acts of Congress. The laws and statutes adopted by Congress is signed by the president. Regulations promulgated by federal agencies, such as the EPA and USDA and I'm sure everyone here as of today, July 5th, knows what I'm talking about, providing this presentation. You're all aware about the most recent Supreme Court decision about the EPA and limiting its ability to regulate. So, something you should be mindful of. Judicial decisions, such as landmark Supreme Court decisions that have reshaped environmental land use landscape, and just discuss again, a recent EPA case in the Supreme Court. Let me just give you a little bit of a tickler about my first real life exposure to environmental laws. So, my most memorable exposure to environmental laws in the real world was during the installation of antennas on the communications tower, so I do telecommunications law. I also used to build telecommunications towers and every year it's the annual, annual right. You have Osprey nests and it stops construction in many cases and it seems Ospreys particularly like telecommunications towers or monopoles. They allow places to put their branches and nest and much to the chagrin of the wireless worker, who's gotta climb those towers. They're very aggressive birds and if you try to climb one of these towers, like any other bird who is nesting, they could get very aggressive and they have big giant talons, so definitely something to be mindful of. But from the environmental standpoint, you know, it turns out that, you know, the protections of the Migratory Bird Treaty Act have a large impact on the construction and upgrade of Southern Communications facilities across country, as the high points to top towers are ideal nesting place for migratory birds, as I just mentioned. They can't be disturbed between April 1st through August 31st, that's the breeding season. And that was when I got hooked into environmental law. From that moment on, I've kind of a big passion about animals and that's where I really got interested in environmental law. So, additional federal land use controls, on top of the laws, regulations, caseloads, there is executive orders often shaped by political motivations, and you'll see big differences between the way President Trump and President Biden approach environmental law and you see a lot of things that President Biden did to countermand the previous administration under Donald Trump. Licenses and leases to use public lands for various purposes includes ranching and mineral prospecting, exercise of day-to-day police powers by federal agencies operating within their statutory jurisdictions. So for example, park rangers on patrol in national parks. And for our purposes, when we refer to land use, we are not referring to campers in national forests, but rather to the basic use of land by commercial, residential, and industrial landowners and lessees. So, the big five federal advisor land use laws. One way to familiar itself with federal jurisdiction over various aspects of land use is via an introduction to the major land use legislation enacted by Congress. So let's talk about that real quick. Endangered Species Act, and I kind of alluded to that with the Osprey before. The Clean Air Act, Clean Water Act, Comprehensive Environmental Response Compensation Liability Act, CERCLA, and then there's a National Environmental Policy Act, known as NEPA. So, let's dive into the Endangered Species Act. So what it does, it protects species designated as threatened or endangered to prevent them from going extinct. It does this in part by allowing for the designation of critical habitat that cannot be destroyed or harmed by human activities, such as land development. Who does it affect? It develops development areas where endangered species have been identified and protections are in place. Frequent overlaps with state and local regulations. The administration is EPA is the animals, USDA handles the plants and Department of Commerce handles marine mammals. It provides stiff penalties for violations, including fines, imprisonment, and potential for a forfeiture of assets. There are over 200 species that have been protected from going extinct via the act, often know as ESA. So a little ESA update, in 2019, the Trump administration weakened the ESA via the adoption of new regulations. These rules make it easier to remove species from the ESA protections, higher standards to establish causal links between activities and their effect on threatened species, effect on land use, so it's easier for mining, oil and gas drilling and ranching operations to take place in areas populated by endangered species. Now think, fast forward to today in 2022, and you have Present Biden, who has just increased those protections. He's stopped, for example, the Keystone Pipeline, he's done other things to help strengthen those laws. So you see that big effect. I'm going to introduce Paul, he's also with my practice, give some thoughts about the matter and give a little diversity on this field of environmental protection.
- [Paul] Thank you very much for that introduction. As Mr. Lupo mentioned, my name is Paul Rowe, and I'd like to talk about the Endangered Species Act a little further. First and foremost, the principle agency for enforcement of the Endangered Species Act is the US Fish and Wildlife Service. Now, that agency works hand in hand with the EPA and the National Park Service and many others. The Endangered Species Act had become part of popular culture. Species such as the California Condor and the Whooping Crane were brought back from extinction, were near extinction, by the broad regulatory powers of this act and the powers it granted to the EPA and the Fish and Wildlife Service to set aside land that would have severely restricted development and any form of human activity. And this comes to the consternation often of developers, who, you know, believe that America's prosperity is pushed forward by extensive development, whether it's in land use, whether it's in drilling, whether it's in mining, whatever it is, the balance between the environmental movement and the various acts and powers of the regulatory agencies and the developers who want to go about bringing about more economic activity for this country is a balance that continues to this day. As Mr. Lupo pointed out, the Trump administration weakened the powers of the Endangered Species Act and the Biden administration is now currently looking to strengthen them again. And SCOTUS, the Supreme Court, is getting in on the action by potentially weakening the regulatory powers of all federal agencies by requiring, whether the decision goes through, that is on their slate, by requiring the agencies to have a direct, direct statutory authority in the individual acts that are passed by Congress to enforce the power, the laws on the acts and adopt their own regulations, has to be a direct connection. Has to be an act, regulations and statutory authority for the agency, without that, it's all threatened, so we'll continue to watch the environmental laws as they unfold over time with regard to the Endangered Species Act and several other acts that we will visit in the course of this presentation.
- [Peter] Thanks Paul, appreciate the insights. Let's move on to the Clean Air Act now of 1970. What it does, so it protects air quality by regulating stationary and mobile sources of pollution. Allows the EPA to establish national ambient air quality standards and AAQS. And who's it effect? Does that typically affect residential land use? Mostly affects industrial sources that emit more than 10 tons per atom of hazardous air pollutants. Limits this applicability to commercial industrial uses. Requires strict monitoring and compliance by industries that produce air pollutants, the administration's EPA, and that falls under 42 USC 7401. Let's move on to the Clean Water Act now, of 1972. What it does, establishes a framework to regulate discharge of pollutants into US waters. Prevents discharge of pollutants of the navigable waters from point sources and it does not affect wetlands and other non-navigable waters. EPA has implemented pollution control programs, such as wastewater standards, water quality criteria, surface water pollutant levels. Permit from the EPA requires discharge pollutants to the US waters, also establishes compliance and monitoring standards for affected industries and the administration is the EPA. So the CERCLA, or the Superfund Act, in 1980, what it does, it's known as a Superfund, aimed at cleaning up existing polluted sites. So, this is the type of thing you would usually bump into, where you get into a gas station, for example, you might wanna redevelop it as, you know, a convenience store, this is something they may come to. If, for example, one of these old underground gas tanks starts leaking and contaminates an area, that would be for an example of kind of, a Superfund site. Identifies sites where hazardous substances threaten the environment and human health. Usually the result of leakage, spillage and mismanagement hazard materials, it gave an example just now of the gas station, where it becomes particularly problematic and then re-doubles the issue is if it's near a stream. So, if you have the oil or the gas starts leaking to the ground, it might leech over and start migrating over to the stream and then create an issue, where it kind of carries it downstream and really magnifies the extent of the spillage and of the contamination. And then of course, the associated cost of cleaning it up. It signs board liability to parties associated with the improper disposal of hazardous waste. Also provides funding for cleaning up contaminated areas and that's gonna be on the responsibility of the person who created contaminants. So as you can imagine, it affects developments in areas affected by hazard substances and designated as Superfund sites. Parties identified as responsible for hazardous conditions. Clean up beyond holding parties accountable, cleanup is the most important aspect of Superfund sites, short term and long term remediation. I'm gonna pass this on to Paul now.
- [Paul] One thing to keep in mind when talking about Superfund sites, because of the toxic nature of the contaminants that may be present in the soil surrounding lands, is that the regulations applied in the Superfund site run with the land, yes, the agencies, the government agencies try to identify the responsible party and force them to be held liable and accountable, but if an unsuspecting property owner winds up buying a Superfund site that there's no knowledge that it was a Superfund site, then he will learn very quickly that there are severe restrictions on what could be done on the land that he just purchased and that environmental remediation measures are underway. And there's no way around it. There's no way to like, bargain your way out of it. You are, it can happen and in many cases, the property owner will feel cheated. He will feel that when he was cheated, he may sue the prior owner for damages because he wasn't informed, that wasn't properly disclosed to him. And then the agencies will be working with the new owner and they'll be trying to sue the old owner, so it gets very tangled up. Environmental matters can get very complicated in which parties are responsible and which parties are responsible for cleaning up, for paying for the cost and what can be done with the land and so on and so forth. And because environmental contamination is an ongoing issue, there were 12 sites, or actually as of March of this year, the Environmental Protection Agency announced that it was adding 12 sites to the Superfund National Priorities List. So, it's an ongoing thing and new sites are added, old ones are deemed remediated and maybe used again in many capacities. You know, there are all sorts of environmental tests that must be performed to determine that a site is no longer contaminated by petroleum or some other toxic substance that leached into the ground. Some sort of a byproduct of industry or agriculture and the Superfund Act has done very well in that regard. It's really made industry agriculture in many other areas of man's endeavor wary that unregulated pollutants, unregulated dumping, unregulated discharge is something that they may be held accountable for. So, it's got a lot of people on the up and up. And my final point of interest on the Superfund Act, as well as a lot of the other acts, is if you look at the dates of these acts, a lot of them came around in the 1970s. It's not a coincidence. The environmental movement in this country really started over a hundred years ago. It started before Teddy Roosevelt even noticed the beauty of the landscape and wanted to set aside protected areas, but the modern environmental movement began more in the forties and fifties. The hand in hand with the civil rights movement in many aspects and there was issues of insecticides or pesticides being used in a dangerous manner. We'll see that and we'll visit that later on when we touch upon Rachel Carson and her contribution to the environmental movement and the way it all tied together throughout the sixties. And then by the time of the 1970s, a lot of the people who started off as young, you know, kind of disaffected outcast protesters and environmentalists were now in positions of power. Positions of authority, had adjusted to American life, middle class life, they became members of society and they were able to influence public policy. So you have the Endangered Species Act, you have the Superfund Act, you had a whole slew of them coming around in the seventies and went hand in hand with a lot of public service announcements, so. Those acts, that effort and that movement that, maybe taken for granted today, resulted in just about 90% of what we're covering here. So, the efforts of those who sacrificed, those who pushed forward, these laws, these acts, and the agencies that were adopted and enacted and put into being to enforce these acts and then given further rights and responsibilities are an ongoing thing and sometimes they're strengthened and sometimes they're placed under threat. But for the moment, the Superfund Act has done quite, quite well, you know, additional sites are being added this year, probably another list the EPA's gonna release by the end of the year and just keeping note of it and tracking its progress and the benevolent effect it's having on the environment and human society.
- [Peter] All right. Thanks for that, Paul. Let's move on to the National Environmental Policy Act, known as NEPA, and as a developer and having worked for developers, NEPA is something I'm very intimately aware with in terms of the law. So, it requires notice to residents and pending projects will impact the environment. So if you're a local area resident, you'll get notification that something is gonna impact the environment, which kind of important. It's nice, gives them a chance to object or investigate. I think it's a nice touch, I think it's just a good, courteous thing, which generally speaking, as a practice. Established the President's Council on Environmental Quality, the CEQ. Requires federal agencies to evaluate the effect of federal projects on the environment as part of the overall project planning process. Environmental assessment goes beyond physical projects. The establishment regulations that impact environment are similarly subject to an environmental assessment. Environmental impact statement require for any and all acts by a federal agency that may significantly affect the quality of the human environment. It does not apply to the president, judicial system, or Congress, so they're not agencies. So, the NEPA Supreme Court cases, a little sampler, all federal environmental land use faces legal challenges and defenses by interested parties. NEPA has faced an especially large number of challenges, since its provisions affect every federal agency, every adopted rule, every project at undertaking. So, give for example, United States versus SCRAP, 1973 case. Law school students had standing to sue, that just a commerce commission ICC over railroad freight rate increase. Winter versus Natural Resources Defense Council, 2008. Navy may use sonar during train drills, for example, and Monsanto Company versus Geertson Seed Farms, 2010 case. Monsanto may sell GMO alfalfa seeds to plant and grow alfalfa plants. I'm gonna go ahead and change this, share this with Paul. Just give some insights on this as well.
- [Paul] One of the key aspects of land use and environmental laws is the way that they work in synergy with each other. The National Environmental Policy Act and the National Historic Preservation Act work very closely together in the field of telecommunications, it's an area of specialty for this firm. Representing telecommunications carriers who are applying to upgrade their facilities, towers, rooftops, antennas to top utility transmission towers and the like, have to go through a screening process, according to the National Environmental Policy Act and the National Historic Preservation Act. Now, how does the policy act come into play, one may ask, when it applies to federal agencies and the effects that their actions may have on the environment. Well that is because the FCC, or Federal Communications Commission, is charged with promulgating regulations for the telecommunications industry. And so, any players in the telecommunications industry are bound to federal law in many ways, as opposed to state and local law and their actions reflect on the agency and the agency is enforcing the act, the National Environmental Policy Act. Now, the synergy with the National Historical Preservation Act is that, in many cases there what are called categorical exclusions, the National Environmental Policy Act and the National Historic Preservation Act have upgrades and modifications that one may make to a telecommunications facility that do not require further compliance with either of these acts. You merely go through a list of exclusions, often to do with the extent of your modification. It's like increasing the height of a tower and things like that. And based on that, you'll know if you have to do anything further at all, or just complete a form that you keep for your own records. As an example, a Jersey City rooftop site in the state of New Jersey is looking to upgrade its antennas. Now, in order to do so without the involvement of these federal agencies and the acts that they're enforcing and the regulations that they're enforcing, you have to just ask a few questions for the modification. One of them is, is the site within 250 feet of a historic district? And that is the National Historic Preservation Act interacting with the National Environmental Policy Act. If you say no to that, you can move on to the next item. Go through a series of items, and if none of them apply to you, that's it. And there's a practical benefit to this because developers very often are looking for ways in which they can avoid the long and drawn out bureaucratic processes of federal approvals for various land use activities, especially ones that involve environmental laws. Another one is, is the site a historic landmark? In some cases, a telecommunications facility needs to be built on a historic site because there's nothing else in the area, it may be a large church with a high bell tower, and there's like, nothing else nearby and antennas need to be put in this tower. Now, this is an intersection, this is not exactly environmental but, the way the telecommunications industry operates it, closely intersects with the National Environmental Policy Act, 'cause they use this large, broad exclusions checklist that kind of just, lumps them all together and you go through them, then you ask, "Are you increasing the height of the facility by more than 10% of it's existing height? Are you increasing the width of the facility?" Anything that might impact the environment, increase the footprint, decrease the amount of open land, like covering it with more pavement, concrete or structures, anything like that, could trigger the National Environmental Policy Act and compliance there with. And once you cannot feel these exclusions, you have to do the basic steps of an environmental assessment, as we just reviewed, an environmental impact statement. If we need to go further, probe soils and test any number of other variables. We'd like to move next to very recent piece of legislation that was adopted and enacted by President Joe Biden. And it is called the Infrastructure Investment and Jobs Act. And that was just adopted in 2021. Now, large amount of this act has nothing to do with environmental land use and regulations, but some parts of it do and some of it's indirect. Like for instance, there is a huge amount of government resource set aside for infrastructure projects. And those infrastructure projects are going to be funded by this act, railroad telecommunications, broadband deployment, highways, bridges, and expanded drinking and waste water systems. Now, every single one of these developments is going to need to comply with all of the environmental regulations we just listed, just because this new act was adopted, does not exclude all these projects, which are going to bring employment and improved infrastructure and all these other benefits to the country. They will also need to comply with these environmental laws for the better good of the long term country's environment and how that affects quality of life. One of the goals of this act is to have carbon emissions at 50% of their current level by 2030. Now, this is very ambitious and that's gonna involve again, a lot of changes to facilities, like automobile manufacturers are going to be having to upgrade their facilities, making clean vehicles, you know, hybrids, electrical vehicles and all these things, all these things we're going to be using more and more as time passes, are going to involve the compliance with this act, which is going to trigger a whole bunch of environmental laws. So, it kind of all ties together. And as each act gets adopted, there is often some consideration of how it will interact with the previous legislation and it's often incomplete. A lot of times the government agencies, land developers, legal counsel are all left to figure this out. The court system left to figure this out as we go on down the line.
- [Peter] Thanks for that, Paul. Let's move on to the next slide. Let's talk about the enforcers, you know, the federal agencies who are actually tasked with enforcing these acts. These environmental laws are typically enforced by one or more federal agencies, such as the EPA. These agencies not only enforce the laws via the exercise of police powers, they also adopt regulations that further interpret the acts and establish standards and procedures that must be adhered to. So, Environmental Protection Agency is one, the EPA, National Oceanic and Atmospheric Administration, known as NOAA. You probably see them quite a bit when it comes to weather. Then there's the National Park Service, NPS, you see them when you become by a national park. Then there's the United States Department of Agriculture, USDA, agencies everyone's kind of familiar with. The Environmental Protection Agency, the primary federal agency to enforce environmental laws and acts, promulgates regulations to fine-tune, interpret acts adopted by Congress. Most of the key environmental laws adopted by the federal government are the responsibility of the EPA. Impervious services, the EPA jury likes to preserve as much federal land as possible from being covered by impervious services, such as roads and buildings. Big issues particularly doesn't really impact homeowners specifically, but most local agencies do have impervious surface calculations. So if you wanna build a deck, for example, you wanna do a patio or put a pool in, these all count as impervious services, not particularly under the EPA, but get your mind thinking about regulations, not just federally mandated, but also by local. Those are good examples. Another, this involves intersection of dozens of laws and regulations on permanent land development. Point source discharges, agricultural use. A nation must feed its people, of course. Becoming a very big issue now with, especially with, you know, global warming is being an issue increased heat, you'll find less arable land, but the EPA ensures that water quality and watersheds are not directly degraded by agriculture. So, too much agriculture means that people have drinking water, so you have to kind of balance those interests. Moving on to the National Oceanic and Atmospheric Administration, NOAA. Principally concerned with the nation's waterways and coastlines, as well as atmospheric conditions. Again, I mentioned before about weather, that's one of the principle federal agencies that has to do with predicting weather. Enforces the ESA, as is applied to marine habitats. Deals with more specific coastal legislation. So for example, the Coastal Zone Management Act of 1972. Protects and develops coastal areas for current and future generations. Magnuson Stevens Fishery Conservation Management Act governs and manages fisheries in federally claimed waters, prevents overfishing, increases fishery long term social and economic benefits. Again, you wanna balance off those interests. People want to fish and they wanna get as much as possible. But one of the developments of commercial fishing are these giant nets, which cast quite a big area and problems of overfishing and allowing those fisheries to replenish itself. So, that's one of the big things that the Magnuson Stevens Fishery Management Act really covers and impacts. Then there's a Marine Mammal Protection Act, prohibits the harvesting any marine mammals by US citizens, anyone else in the federally claimed waters. Again, we wanna protect marine mammal protection, to make sure you have good balance of sea creatures. And turn it over to Paul right now to give a little more of his elaboration and thoughts on the matter.
- [Paul] As we drift on to the National Park Service, I'm gonna touch upon a few things that are considered good practices for law firms who are looking to, you know, branch out into environmental law, particularly as it applies to land use matters. Environmental laws, again, as we mentioned early on, vast, you know, it encompasses so much but, it encompasses products that we make, you know, like the mobile phones we're using, the air conditioner in the window. There are like, so many like, consumer products but, by and large, the use of the land and the development of the land is probably has the largest impact on the environment of the planet than over anything else. Whether it's logging, whether it's plantation agriculture, two hot-button issues for the environmental movement to this very day, and so on. A good practice for a law firm looking to branch out is a scientific background and a familiarity with geographical information systems. So basically, the National Park Service are responsible for managing and protecting the nation's parks and forest basically, preserves things like that. Things that are set aside, whenever they were set aside, whether it was late in the 19th century or whether it was like, last year. The National Park Service, you know, you see park rangers in Yellowstone, you sometimes see they're involved in something, grizzly bear sighting, whatever, that's all the National Park Service. A lot of what they do is on preventing forest fires, but by no means is that what they're limited to. They patrol, as we know, with park rangers, helicopters and all these other means, they continually monitor our precious national legacy of forests and parks. You know, 'cause people are irresponsible. This happens, you know, sometimes it's mistakes, sometimes it's intentional and so on. Now, in addition to managing and protecting the forests and parks that are under their aegis, they also spend a lot of time mapping out and considering the surrounding lands. The aforementioned Yellowstone National Park is a case in point. Now, you go right to the National Park Service website and become familiar, some of the means they use to monitor the surrounding areas now. The relevance of that is, the surrounding areas are privately owned very often, maybe owned by state, county or local agencies and the use of those lands becomes an issue for the parks that are being protected, so there's a tie in there. And the National Park Service maintains a pretty extensive network to inventory and monitor the areas surrounding their resources. For example, right on their website, you have the Greater Yellowstone Inventory and Monitoring Network. And, you know, the deer and the migrating species, bison, they're not in the park, they're not like, fenced in to the Yellowstone park. They, you know, they wander in and out. They may be coming from a farm, they may wander in from a county land. They made county forest that's adjacent, you know. And the same thing applies to the Upper Klamath Lake region of Oregon, they have their own inventory and monitoring network. And again, it's a totally different geography over there. The geological terrain, you know, you're in a mountainous region, you know, well, I guess Yellowstone's mountainous too, but this is more like Northwest mountainous. You have more in the way of these kind of like, high mountain lakes, they call tarns, like Lochness would be an example in Scotland and Upper Klamath Lake is an example of these types of lakes, so changes in the surrounding regions by manmade processes will deeply affect this protected area, this Klamath preserve area. So, these are the kinds of things that the National Park Service looks into. Now, with the advent of satellite technology, the inventorying of areas surrounding national parks has become a lot easier. You can see the changes in land use patterns over time, over years, over decades, quite easily. And, you know, sometimes they're concerning, you know, if you're someone who likes to preserve our natural resources, seeing development encroach upon national parks and forests can raise alarms, you know, can bring everyone to a head and again, cause political conflict, which leads to conflicting regulation and enforcement, as we discussed, between the good examples of the Biden and Trump administrations and how the environmental laws in regard to land use will be enforced, whether they can be enforced and so on. So, the National Park Services, they're doing their job, they're inventorying the land, land cover, configuration, classification and all this stuff and the sincere effort to ensure that the surrounding development does not deleteriously affect the national parks and forest system. And again, tying this back into a law practice, awareness of ecology, you know, environmental science, endangered species, just that North American fauna and flora and also again, GIS systems, you don't have to have a PhD in this, but familiarity with these building blocks of the modern environmental land use area will bolster your practice, allow you to more effectively, you know, have context and provide proper, accurate, and focused guidance for your clients. The next enforcing agency we're gonna touch on is the United States Department of Agriculture. Now, very often the Department of Agriculture is considered for nutrition labels. You know, many times they're often crisscrossed or mistaken for the FDA, the Food and Drug Administration. They often work hand in hand on many aspects of human nutrition, things like that. That's when the Department of Agriculture comes into play. But for our purposes, where we're considering the USDA for land use matters, things like farming, ranching, food production, forestry, logging, things like that, rural development, increasing economic opportunities for the underserved. And again, the recently adopted Biden legislation will pass in some small part through the United States Department of Agriculture and its eventual enforcement, or I should say adoption, 'cause it will be more of a promulgating benefits to the underserved communities, not enforcing additional regulations upon them through projects and incentives and things to that nature. It is interesting how when the United States Department of Agriculture was made into being in 1862, that roughly half of this country's population were farmers, you know, the USDA seemed like it would exert a great impact over the American way of life. And it turns out that today in 2022, the USDA's impact may be greater than it was in 1862, even though today, only 2% of the American population is involved in agriculture. And then you may be thinking, "Okay, we have the United States Department of Agriculture regulating ranching, farming, logging, and all these other things. We have the National Park Service, very concerned about development areas surrounding national parks and forests." As you can guess, many of those areas are farmlands. Many of those areas are agricultural. So how does the NPS and the USDA intersect? Is there a manual to guide such interactions? And is there like, a clear flow chart that dictates the path that events will follow, that the process will follow? And the answer is no, the short answer is no, it's a case by case basis. Let's say we're talking about Yellowstone again, and there's a small farm nearby that's heavily regulated by the USDA and also the concerns of the National Park Service that maybe they're dumping like, wastewater from ranching, you know, cattle ranching, and that can cause issues with the nearby park land, so. You'll have the USDA and its regulations on wastewater and dumping. And then you'll have the National Park Service and its eventual restrictions on surrounding development. If they're going to damage the park area, that there could be some liability, especially if the impact is unnecessary through activity that, you know, could have been avoided or better measures could have been undertaken to avoid causing environmental damage that affects our park system. Now, just as Roe V. Wade has, Roe V. Wade I should say, the Supreme Court decision that, for the most part overturned, it has sent shock waves through the nation. There have been landmark environmental decisions that have had equally great impact, if not on the public stage in media, then in the impact on the American way of life, the business land use opportunities and everything else. And the environmental movement and land use laws have been shaped by these landmark Supreme Court decisions in no small part. Brown verse Board of Education, the Scopes Monkey trial, all these like, things that have become part of our folk law, American culture and history, and an important part of our heritage are the same with environmental landmark decisions, such as Sierra Club verse Morton from 1972 and Massachusetts verse the Environmental Protection Agency much more recently, 2007. Now, the Sierra Club verse Morton decision of 1972 is interesting, 'cause this is the type of decision that the general public, being unfamiliar with some of the nuances of civil procedure, you know, court procedure and so on, misinterpret a decision as meaning something more than it means. In this case, many would believe that the Supreme Court was entirely siding with the Walt Disney company and that they were allowing this ski resort to go forward. They were giving their full endorsement. And that's not what was happening at all. In 1972, the Walt Disney Company wanted to build a ski resort in the Sierra Nevada mountains and an environmental organization sue to prevent this from happening. And they lost, they did not prevail. And again, this is a important, very important distinction. And the reason they didn't prevail is because they did not allege in their case filing in their filed complaint, they did not allege that they sustained an injury due to the ski resort development. And it's a technicality essentially because they did not sustain an injury. They had no legal interest in the matter, and that was it, they lost. And again, this is the type of stuff that, this type of hair-splitting in the courtrooms is misinterpreted by the general public, as meaning that the environmental movement is, you know, due to a major setback and the government, you know, is plotting against them and they're siding with big business and all the stuff that comes about. It turns out though, that the ski resort was never built. The NEPA, National Environmental Policy Act that we just discussed, its application and its consideration, its needs to consider the impact of large projects, such as this, on the environment, consider it with many studies, plans, comments, periods, all the things that have to happen for such a large project like this, scuttled the project, so this ski resort was never built. That's why you'd never hear about the Walt Disney Ski Resort. The Sierra Nevadas, if maybe like, was that something that came about and then was closed before, you know, people came of age, if you know, those born later in life, you know, younger millennials, no, it never actually came about, so. A textbook example of a landmark decision doesn't go the way of the environmental movement, but it is on a technicality and the end result was not destructive toward the environment that this organization was trying to protect. The next landmark case we're gonna touch upon is much more recent, it's Massachusetts verse the Environmental Protection Agency. And this is from 2007 and has to do with the very, very divisive issue of climate change and greenhouse gases. In this case, carbon dioxide. Now, the Clean Air Act we touched upon and its measures have been instrumental in resulting in, you know, less choking smog in cities. It's done like, immeasurable things. The course is too short to go through a list of things the Clean Air Act has to done to improve the quality of life and the human environment. Climate change is thorny because, although the science is reasonably settled, it's not settled in the same way that, you know, for every action, there is an equal and opposite reaction, you know, something, you know, fundamental to the laws of nature. Tying the increase in human-made greenhouse gases to global warming and climate change has caused a lot of conflict. And in this case in 2007, the state of Massachusetts petitioned the Environmental Protection Agency to regulate carbon dioxide due to its contributions toward climate change. Because the Clean Air Act notes that the Congress must regulate any pollutant that can be reasonably anticipated to endanger human health and welfare. Now, certain things are obvious. Carbon monoxide on the one end is much more dangerous, you know, it's a life-threatening gas and in sufficient quantities, build up in your home from a improperly working stove or in your car, if you're snowed in and you're like, get in and start the engine and forget to clear out the exhaust, it's deadly. Carbon dioxide is much more indirect and the effects are much more long term. So, the Supreme Court in 2007 sided with the state, sided with Massachusetts and said that the EPA had to regulate CO2 gas and this was considered a big victory for the environmental movement. And CO2 was declared a pollutant under the Clean Air Act. Now, there is a Supreme Court case at the moment that is threatening to upend the 2007 decision. And as we've seen recently, the conservative super majority does not consider a precedent established law. Supreme Court precedent is just as open to revisitation, reinterpretation as any other legal question that is brought before their courtroom. So if that happens, then it could turn out that the EPA will no longer be regulating. If they, I should say, if they decide against the 2007 act, they overturn it, they substantially modify it, the EPA may no longer monitor or regulate greenhouse gases. And this will allow, you know, development, industrial, you know, automotive development, et cetera, et cetera, to proceed with fewer controls in regard to greenhouse gases. Now, the trial is still pending, so anything can happen. And essentially, we do have a democratic administration, so even if the SCOTUS overturned the 2007 landmark case and you know, goes the other way, you know, the EPA now is a democratic EPA, democratic administration, enforcement of the SCOTUS's overturning will remain to be seen and that's the back and forth. It happens in the Supreme Court, happens in Congress, happens in the White House, the president's, you know, prioritization of enforcement through executive orders and funding and what also happens in the regulations promoted by these agencies, these various federal agencies, so. As we see moving forward, there's ongoing fluid, merging intersection and overlapping of all these factors shaping how environmental laws are interpreted and how they affect land use in the country
- [Peter] Well, thank you again Paul, for your illuminating comments. Continue on, let's go with tying it all together. A development project may involve multiple agencies and multiple environmental laws. The intersection of land usage, law and agencies unique for each instance. The USDA makes call on the Clean Water Act to enforce restrictions on our ranching project that proposes unacceptable wastewater runoff into our nearby watershed. The EPA may sue the Bureau of Land Management for failing to adhere to the NEPA process, but adopting regulations for improved public housing and frontal ends and the NOAA may issue a cease and desist order persistent to the Clean Water Act to a factory operating near the shoreline. Toxic discharge can devastate fragile ecosystems. Current events looking ahead. So, the Biden administration has already changed course from the Trump administration in regard to emphasizing strengthening the environmental laws and not leaking to them, we kind of touched on that before and you see this broadly speaking between parties, kind of alternate vastly between the Republican and Democratic and they reflect each other's values and what they'd like to promote in their administration. Land use laws related to slowing climate change will figure prominently during this administration, as we get ready to see, it was day one, one of his big concerns and one of his big priorities. NEPA gets a shot in the arm, as well. Even the Secures Exchange Commission may issue new regulations regarding corporate disclosures and practice likely to impact climate change. So, you know there's a number of different companies, I say that they're environmental friendly and they have certain designations. So SEC starting to get into that, make sure they fulfill their obligations to equality. And of course, in this instance, we're talking about climate change. Federal scope enforcing the CWA to be expanded into Biden, as we anticipate, CERCLA to be used to curb PFA contamination, drinking water limits, newly designated hazard substances, separate to the CERCLA regulations. So, let's go over some of the key figures in the US environmental movement. On a more inspiring note, we close out our presentation by noting that environmental laws and regulations do not happen by themselves. Pioneers, trailblazers, and non-conformants of all type have struggled and helped to shape the modern federal regulatory landscape, to the belay of some and the consternation of others, as you can imagine, industry, big, big industry. Here's a small sample of those who have shaped environmental history. Teddy Roosevelt, the famous Rough Rider, Rachel "Silent Spring" Carson. Got Sigurd Olson, The Bourgeois. Mardy Murie, grandmother of grand conservation. So, let's go into a little bit about Teddy Roosevelt. Pretty colorful character. We all kind of know him. He was the 26 President of the United States. He served from 1901-1909. Known as a Rough Rider for his wild wilderness inclinations, also a very famous charge of San Juan Hill in Cuba. He fought and well-known for that. Affected 230 million acres of public land through the establishment of 150 national forests, 51 bird reserves, four national game preserves and five national parks. He's respected America's diverse wilderness and open spaces, used presidential power to greatly advance US conservation movement. The effect on land use, a vast amount of public land is protected and we still enjoy today. Development's not allowed, result in less line of commercial industrial use, which results in criticism from businesses and lobbyists. But again, if you're a conservationist, you're delighted by that type of move. Next person who I discuss is Rachel Carson. Beginning of the modern environmental movement, so she really brought a lot of awareness. So Silent Spring, famous location, resulted in a ban on DDT pesticides. And we all know DDT pesticides, very, very toxic for people, for animals. So, it's not just people who get impacted by it, but it's a kind of a cascading effect. Environmental cascading effect gets into the grass, it gets into the foliage, it gets into water, which in turn goes into deer and, you know, fox and other things that people may hunt and may eat. So, those are very big issues, just big cascading effect they have on there, not to mention poisoning downstream. So, face backlash from chemical manufacturing companies, some tried to defend their positions about the safety of their chemicals and obviously, overwhelmingly found that DDT was hazardous for any kind of consumption by humans and animals. The effect on land use agriculture relied heavily on DDT until efforts by Rachel Carson resulted in prohibition. As I mentioned, it's ban resulted a drastic change of practice by nations farmers. How they went ahead and used pesticides and fertilizer. Replaced pesticides are themselves subsequently tested to ensure they do not cause harm to nature or man. Unfortunately, a lot of times these pesticides, the issues to health only comes out much, much later. Next, we discuss is Sigurd Olson. Helped draft the 1964 Wilderness Act, which legally defined the wilderness and said about 9.1 million acres was protected federal land. Helped protect the boundary waters, Voyageurs National Park, the Arctic National Wildlife Refuge and you all know about the Arctic National Wildlife Refuge. Between administrations, one that allows drilling there and the other one doesn't allow drill there, very difficult, makes your head spin, and it must be difficult if you're in the oil business, to see if you want to wanna do business in the Arctic National Wildlife Refuge for fear of injunctions and then reversals in administrations. Inspired states and local governments to adopt their own wilderness protection laws and set-asides. The effect on land use, so since 1978, Minnesota developers must heed the protected boundary waters of Voyageurs National Park. This leaves nature-goers delighted, and as mentioned before, and developers frustrated. Mardy Murie, considered the grandmother of the conservation movement. Her 1964 testimony in support of Alaska Lands Act helped establish millions of acres of new parks and refuges in Alaska, has received hires from the Sierra Club and Wilderness Society. The effect of land use, if you're an oil and mineral prospect in Alaska, your options will be more limited due to Miss Murie's efforts to set aside a large swath of Alaskan wilderness as protected park lands and refuges.
- [Paul] Those are some of the inspiring figures in the environmental movement. So, beginning to wind down and kind of tie it all together. The inspiring figures, the laws, the agencies, the EPA, the CWA, the CAA, CERCLA and all these different agencies and all these different laws and all these different people. And the one thing tying them all together is an interest in preserving and conserving the environment for the wildlife that lives there and for current and future human habitation and recreation. Now, a client may approach you with something that seems unfamiliar to him. A lot of people have heard of the Clean Air Act. A lot of people have heard of the Endangered Species Act, but then all of a sudden, there's the Resource Conservation and Recovery Act. And a client is cited with a violation of that. He's worried, he's unfamiliar. Then you have the Safe Drinking Water Act, not the Clean Water Act, but the Safe Drinking Water Act. Then you have the Toxic Substances Control Act. So in addition to all the environmental laws we touched upon and the regulations that follow from them, there are many others, there are ones that are more obscure, not as well known, but equally impactful. So, a client comes to you in any state, you will be ready to deal with this matter, following the basic steps outlined and which are generally applicable to any litigation in the state, civil matters and particular environmental matters here. And most specifically, with regard to deposition, expert witnesses and clear explanation for the general public of the sometimes difficult scientific information that's being conveyed to the judge and jury.
- [Peter] So, let's do the takeaways. In summary, federal regulation will continue to exert a profound effect over the use of public and private land, shifting and morphing as political headwinds blow one way or the other. Regulatory effects of land use can be direct, as in the case of the Endangered Species Act and indirect, as in the case of climate change regulations. Outlook. Outlook gets more complicated. Land use regulations will continue to grow more complex, resulting in new areas of specialization and further hybridization of legal engineering and ecological disciplines. Best practices. A multidisciplinary approach is best with dealing with federal jurisdiction over land development. Be part ecologist, part lawyer, part land developer to adopt the evolving laws and regulations, the short and long-term effects. In some, we're talking a multi-discipline approach, so put on multiple caps. Really enjoyed doing this presentation today. If anyone has any kind of questions regarding any aspect of this, it is my area of expertise and practice. Here's my contact information. I look forward to working with you and hearing from you.