Summary of Environmental Law in the United States

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21 Energy

 

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21.1 Institutions with Authority over Energy

 

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The Department of Energy (DOE) has responsibility for research and planning related to the United States' energy supply and delivery. DOE is also responsible for developing and manufacturing nuclear weapons.

The five-member Nuclear Regulatory Commission (NRC), founded in 1975, is an independent federal agency charged with the development and enforcement of regulations to assure that public and worker health and safety are protected from all civilian nuclear activities, including those at active uranium mill tailing sites. The NRC develops regulations for high- and low-level radioactive waste disposal and is responsible for licensing nuclear waste facilities, including high-level waste repositories. The NRC also regulates commercial nuclear power plants and industrial firms, organizations, and individuals dealing with radioactive waste. NRC also shares some responsibility with the Department of Transportation, see Section 22, for safety standards related to the transportation of radioactive waste.

The Environmental Protection Agency (EPA) is responsible for establishing generally applicable environmental standards and providing guidance related to all radiation affecting public health and the environment. EPA thus develops criteria for the handling and disposal of all radioactive wastes, for releases of radioactive substances into the environment, and for human exposure to radioactive substances. EPA also has authority to regulate nuclear facilities and wastes under other generally applicable environmental statutes.

The Federal Energy Regulatory Commission (FERC) was established under the Department of Energy Organization Act of 1977. 42 U.S.C. secs. 7171-7178. FERC regulates the interstate aspects of the electric power and natural gas industries and establishes rates for transporting oil by pipeline. FERC issues and enforces licenses for constructing and operating non-federal hydroelectric power projects. FERC also advises federal agencies on the merits of proposed federal multiple-purpose water development projects.

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21.2 Energy Efficiency and Consumption

 

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The federal government has taken several approaches to improving energy efficiency and conservation, including mandating energy efficiency standards or labeling, promoting regional and state energy conservation planning, providing financial and technical assistance, imposing excise taxes on fuel use, and encouraging fuel switching, particularly to conserve oil and gasoline. New bills are currently being reviewed in Congress that would amend current energy policies. See Congressional Research Service Reports for more information.

Energy Efficiency Standards and Labeling

Under the Energy Policy and Conservation Act of 1975, as amended, mandatory minimum energy efficiency standards apply to most types of consumer products, including, for example, refrigerators, freezers, air conditioners, heat pumps, heaters, dishwashers, clothes washers and dryers, ovens, and television sets. 42 U.S.C. secs. 6291-6309; 10 C.F.R. sec. 430.3 (energy conservation standards). The National Energy Conservation Policy Act of 1978, requires federal testing and labeling of certain electric motors and pumps. 42 U.S.C. secs. 6311-6317; 10 C.F.R. pt. 430. Distributing consumer products or industrial equipment without the requisite energy efficiency labels is prohibited. Violators can be subject to civil penalties, injunctions, or citizen suits. 42 U.S.C. secs. 6302-6307; 10 C.F.R. sec. 430.7 (energy conservation enforcement). There are specific energy efficiency standards for federal government offices, and the DOE has authority to issue voluntary energy efficiency standards for new non-federal residential and commercial buildings. 42 U.S.C. sec. 6833(a)(2); (a) (energy conservation voluntary performance standards for new buildings).

Energy Conservation Planning

Many of the federal agencies, such as the Bonneville Power Administration (BPA) or the Western Area Power Administration (WAPA), that produce or distribute energy are required to include energy conservation and efficiency in regional energy management plans. See the Pacific Northwest Electric Power Planning and Conservation Act, Pub. L. No. 96-501, 94 Stat. 2697 (codified at 16 U.S.C. secs. 837, 838i, 838k, 839-839h); the Hoover Power Plant Act of 1984, Pub. L. No. 98-381, tit. II, 98 Stat. 1333 (codified at 42 U.S.C. secs. 7275-7276; 43 U.S.C. secs. 617-619, 1543). The federal government has also established a program of technical and financial assistance to states that develop state energy conservation plans meeting certain federal requirements. See State Energy Efficiency Improvement Act of 1990, Pub. L. No. 101-440, 104 Stat. 1006 (codified in scattered sections of 42 U.S.C.).

Federal Technical and Financial Assistance

The federal government provides financial and technical assistance for a number of energy-related purposes, including: to develop and implement state energy conservation plans, 42 U.S.C. sec. 6324; 10 C.F.R. sec. 420.3; to support the weatherization of low income residential buildings, 42 U.S.C. secs. 6861-6873; 10 C.F.R. sec. 440.10; and, to support energy conservation in schools and hospitals, 42 U.S.C. secs. 6371-6371j; 10 C.F.R. sec. 455.9. The Federal Nonnuclear Energy Research and Development Act, Pub. L. No. 93-577, 88 Stat. 1878 (codified at 42 U.S.C. secs. 5901-5920), supports research into increasing alternative energy supplies and energy conservation technologies.

Fuel Switching

Congress has enacted several laws, particularly during and after the oil crisis of the 1970's, to conserve one type of fuel (mostly oil or natural gas) by requiring or encouraging the switch to other types of fuel (mostly coal or hydropower). The goal was not to reduce the total amount of energy consumed, but to conserve oil or natural gas for other uses. See, for example, the Energy Supply and Environmental Coordination Act of 1974, Pub. L. No. 93-319, 88 Stat. 246 (codified at 15 U.S.C. secs. 791-798, and in scattered sections of 42 U.S.C.); and, the Powerplant and Industrial Fuel Use Act of 1978, Pub. L.No. 95-620, 92 Stat. 3289 (codified as amended at 42 U.S.C. secs. 8301-8484, and in scattered sections of 15, 19, 42 & 49 U.S.C.).

Excise Taxes

The federal government places a relatively small excise tax on a number of fuels, including: gasoline, 26 U.S.C. secs. 4081-4083; 26 C.F.R. sec. 48.4081-1; aviation fuel, 26 U.S.C. secs. 4091-4093; 26 C.F.R. sec. and, boat fuel used for inland transport, 26 U.S.C. sec. 4042; 26 C.F.R. sec. 48.4041-3. In theory, at least, these taxes should reduce energy consumption by increasing the price of the fuels. These federal taxes have been set at relatively low levels; their main purpose is to collect revenue for the federal government and not to promote energy efficiency.

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21.3 Oil and Natural Gas Exploration, Development and Extraction

 

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See also Section 10: Protection of the Oceans and Coastal Areas.

The federal government's powers over oil production and consumption is limited to the power to regulate and promote interstate commerce of oil, to protect national security by ensuring a stable supply of oil (particularly in emergencies), and to manage and develop oil resources under federal lands.

Emergency Rationing

The federal government has authority to ration oil or to control prices in the case of energy emergencies such as the oil crisis of the 1970's. See, for example, the Emergency Petroleum Allocation Act, 15 U.S.C. secs. 751, 753; 10 C.F.R. sec. 218; and, the Emergency Energy Conservation Act of 1979, 42 U.S.C. sec. 8513(a), which required the development of a stand-by rationing plan.

Federal Lands

Under the Mineral Lands Leasing Act (MLLA), 30 U.S.C. secs. 181-287, the federal government, primarily through the Department of Interior (DOI), leases the right to produce oil to private companies through a competitive bidding process. See Mineral Lands Leasing Act, Pub. L. No. 66-146, 41 Stat. 437 (codified at 30 U.S.C. secs. 181-287), particularly as amended by the Federal Onshore Oil and Gas Leasing Reform Act, enacted as tit. V, subtit. B, secs. 5101-5131, of the Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, 101 Stat. 1330 (1987) (codified at 30 U.S.C. secs. 181-287). Companies must typically pay royalties to the federal government. Whether, and to what extent, oil development is allowed is largely determined by the statutes governing the specific type of federal land and the purposes for which they are protected. See Section 16: Environmental Management of Public Lands. Where oil leases are allowed, the MLLA requires public participation and compliance with most other environmental statutes, including the need for an environmental impact statement. See Section 7: Environmental Impact Assessment.

The most controversial federal oil leases have involved the wild areas of Alaska and the outer continental shelf. For example, the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. secs. 3101-3233; 50 C.F.R. pt. 37, authorized drilling in the Alaska National Wildlife Refuge. The Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. secs. 1331-1356; 30 C.F.R. pt. 250, promotes the development of oil and gas reserves in the outer continental shelf (OCS). OCSLA asserted the federal government's title to submerged lands beyond the limits of the territorial sea. OCSLA authorizes DOI to hold competitive bids for oil leases to certain areas of the OCS. OCSLA was later amended to, among other things, allow greater public participation in the oil leasing process and to create a fishermen's contingency fund for claims of equipment loss due to energy development activities, 43 U.S.C. secs. 1841-1846; 50 C.F.R. pt. 296. See also Section 25.6: Transboundary and International Issues, Agreements Relating to Marine Pollution and Conservation; Section 10: Protection of the Oceans and Coastal Areas.

Oil, Gas and Geothermal Wells Drilling Expenses

Section 263(c) of the Internal Revenue Code allows operators a current deduction of "intangible" drilling expenses and development costs (such as labor, fuel, materials and supplies, vehicle rental, repairs to equipment, and depreciation of drilling equipment). 26 U.S.C. sec. 263(c). The deduction allows immediate write-offs related to oil and gas production, rather than charging such costs to capital through depreciation or depletion. This provision reduces the costs of environmentally damaging activities, such as canal dredging or road construction in Louisiana and pipeline construction in Alaska.

The Crude Oil Windfall Profit Tax Act of 1980, Pub. L. No. 96-223, 94 Stat. 229 (codified as amended in scattered sections of Titles 7, 19, 26 and 42 U.S.C.), was designed to capture the extra profits that were accruing to oil companies due to the increase in worldwide oil prices.

State Lands and Regulation

States retain sovereignty over natural resources, including oil and natural gas, on non-federal or non-tribal lands within their jurisdiction. The Submerged Lands Act, Pub. L. No. 83-15, 67 Stat. 29 (codified at 43 U.S.C. secs. 1301-1356), grants states jurisdiction over lands under the territorial seas of the United States. State laws thus govern the allocation of petroleum on state lands and the regulation of petroleum development on private lands within the states. Most states have laws establishing a leasing system, essentially analogous to the federal system, for petroleum reserves found on state lands. See, for example, Alaska Admin. Code, tit. 11, secs. 82, 83, 84, 90, 96; Ariz. Rev. Stat. Ann. 27-555; Oil and Gas Conservation Act, Utah Code Ann. 40-6-1. Privately owned petroleum reserves are governed by state common property law or, in some states, statutes specifically tailored to petroleum conservation.

Tribal Lands

Petroleum exploration and development on tribal lands is governed by tribal laws and regulations, although the federal government retains a trust relationship. The Bureau of Indian Affairs and the Bureau of Land Management retain substantial authority to complete environmental impact assessments and other trust actions.

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21.4 Hydroelectric Power

 

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See Section 9: Protection and Management of Water Resources; Section 7: Environmental Impact Assessment.

Given the federal government's authority to regulate navigable waters and interstate commerce, FERC is responsible for licensing non-federal hydroelectric facilities. A few of the largest hydroelectric dams in the country are also federally owned and operated by government agencies, such as the Bureau of Reclamation or Army Corps of Engineers, or semi-governmental agencies, such as the BPA or the Tennessee Valley Authority (TVA).

FERC Hydroelectric Licensing and Relicensing

FERC issues and enforces licenses for constructing and operating non-federal hydroelectric power projects under the Federal Power Act. To receive a license, a project must be consistent with applicable comprehensive river plans for the development and management of the river. In issuing a license, FERC must give equal consideration to power development and non-power resources, including fisheries, recreation, aesthetics, and wildlife. 16 U.S.C. sec. 797(e). In addition, FERC must accept recommendations by the U.S. Fish and Wildlife Service or National Marine Fisheries Service to protect fish and wildlife. No FERC license can be for longer than 50 years. Relicensing must meet the same standards as licensing. 16 U.S.C. sec. 808. Specific procedures apply to licensing and relicensing, including for public participation.

Environmental Impacts

Most dams involving federal funding or FERC licensing will also require an environmental impact assessment under the National Environmental Policy Act. See Section 7: Environmental Impact Assessment. Under the Fish and Wildlife Coordination Act, 16 U.S.C. secs. 661-666c, any request for Congressional money to support a dam or other project that will alter the flow of a navigable river must also be accompanied by a report by DOI detailing any fish or wildlife impacts. There is no citizen suit provision to enforce this Act.

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21.5 Fossil Fuel Power

 

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See also Section 18: Mining; Section 8: Protection of the Atmosphere.

The federal government's regulation of fossil fuel power is primarily limited to regulating surface coal mining (see Section 18.4: Reclamation of Mines) and the regulation of emissions or discharges from fossil-fuel power plants (see Section 8.2: Stationary Sources; Section 9.2: Point Sources). State laws also impose reclamation and siting requirements and pollution control standards on the coal industry.

Surface Mining Control and Reclamation Act

The Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. secs. 1201-1328, was designed to prevent and repair environmental damage from coal strip mining. Any person intending to surface mine for coal must obtain a permit issued by the state under an approved state plan or by the federal government if there is no approved state plan. To receive a permit, the applicant must: submit a detailed reclamation plan, demonstrate that the company has sufficient liability insurance to cover potential injuries and damage caused by the mining operations, and post an assurance bond to cover the costs of the reclamation. The permittee also must meet certain environmental performance standards. 30 U.S.C. sec. 1265; 30 C.F.R. pts. 715, 816.

Reclamation Fees and Fund

All operators of coal mines must pay a reclamation fee, which ranges from nacec.10 cents to 35 cents per ton depending on the type of coal and whether it is surface mined or mined from underground. 30 U.S.C. sec. 1232(a); 30 C.F.R. pt. 870. Proceeds from .the reclamation fees are used mostly for reclamation and restoration of land and water resources adversely affected by past coal mining. 30 U.S.C. sec. 1231; 30 C.F.R pt. 872.

State Reclamation Laws

SMCRA leaves most enforcement and implementation powers in the hands of those states that submit approved plans. State laws can also impose their own reclamation requirements on any mining activities in the state, including private and state lands not covered by SMCRA.

Regulation of Fossil Fuel Power Plants

Emissions and discharges from fossil fuel power plants are addressed under generally applicable provisions of other environmental standards. See, for example, the Clean Air Act (CAA), described in Section 8; the Clean Water Act (CWA), described in Section 9; or, the National Environmental Policy Act, described in Section 7.

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21.6 Nuclear Power

 

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21.6.1 Construction and Operation of Nuclear Power Plants

 

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Under the Atomic Energy Act of 1954, 42 U.S.C. secs. 2011-2282, the federal government licenses private operators of nuclear reactors, including the individuals who actually operate the facility. 10 C.F.R. 55.1-55.61. Each nuclear power plant licensee must also submit acceptable radiological emergency response plans, preferably prepared with state and local governmental participation. The Nuclear Regulatory Commission (NRC) is responsible for regulating all commercial uses of nuclear energy to protect the health and safety of the public and the environment.

Nuclear power plants are also subject to most generally applicable environmental laws, including, for example: the cleanup of radioactive releases under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or "Superfund"), 42 U.S.C. secs. 9601-9675; 40 C.F.R. secs. 300.400-300.440; the prohibition of radioactive discharges into navigable waters under the CWA, 33 U.S.C. secs. 1251-1387; and, the regulation of ocean disposal of low-level radioactive waste under the Marine Protection, Research and Sanctuaries Act of 1972 (MPRSA), 33 U.S.C. sec. 1411; 40 C.F.R. pt. 223.

The states are preempted from .regulating the radiological safety aspects of nuclear power plants. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190 (1983). The states do have authority to regulate thermal pollution from nuclear power plants, CWA, 33 U.S.C. sec. 1365, and to regulate radioactive air pollutants, CAA, 42 U.S.C. secs. 7416, 7422, 7602(g). The states also retain authority to regulate the generation, sale, and transmission of electricity produced by nuclear power plants, which can relate to environmental protection. Atomic Energy Act, 42 U.S.C. sec. 2018.

There are specific provisions for the siting of nuclear power plants.

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21.6.2 Fuel Reprocessing and Disposal

 

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See Section 12.3: Radioactive Wastes

High-Level Radioactive Waste

High-level radioactive waste includes spent nuclear fuel and certain other wastes. A process for permanently disposing of high-level radioactive waste was established by the Nuclear Waste Policy Act of 1982 (NWPA), 42 U.S.C. secs. 10101-10225. The NWPA: established a formal policy favoring the permanent disposal of spent nuclear fuel in geologic repositories; set a schedule for siting, constructing, and operating at least one high-level waste repository; provided for a limited amount of emergency interim storage; developed a schedule for constructing a monitored retrievable storage (MRS) facility; and, established a fund to cover nuclear waste disposal costs paid for by user fees on nuclear power. The NWPA granted primary responsibility for developing disposal technology and evaluating potential sites to the Department of Energy (DOE). DOE issued final guidelines for evaluating sites according to factors including population density, geology, hydrogeology, proximity to national parks, and cost of transport. 10 C.F.R. sec. 960.1. The Nuclear Regulatory Commission retained authority over construction, operation, closure, and decommissioning of nuclear waste repositories. 42 U.S.C. sec. 10141(b). EPA is responsible for setting maximum emission limits, containment standards, and individual exposure limits. The repository must meet these standards. 42 U.S.C. sec. 10141(a); 40 C.F.R. pts. 191-195.

Because of the technical and political difficulties in siting a permanent high-level waste repository, the 1982 Nuclear Act was amended in 1987 by the Nuclear Waste Policy Amendments Act, Pub. L. No. 100-203, 101 Stat. 1330 (1987) (incorporated at 42 U.S.C. secs. 10101-10270). The 1987 Amendments required DOE to characterize one specific site, located at Yucca Mountain, Nevada, to determine whether the site is suitable for disposal of nuclear waste. The Amendments also increased incentives for states or Indian tribes to accept the interim MRS facilities, established the Nuclear Waste Technical Review Board, and established the Office of the Nuclear Waste Negotiator, which is charged with negotiating with states or Indian tribes willing to host a repository or MRS facility.

Low-Level Radioactive Waste

Low-level radioactive waste is any radioactive material that is not high-level radioactive waste, spent nuclear fuel, or byproduct material. 42 U.S.C. sec. 2021b(9). Under the Low- Level Radioactive Waste Policy Act of 1980, 42 U.S.C. secs. 2021b-d,disposal of low-level radioactive waste is the responsibility of each state (unless the waste was generated by a federally owned facility). States are encouraged to form regional compacts for the disposal of their low-level waste. 42 U.S.C. sec. 2021d. Acceptable disposal methods include burial at a facility licensed by the NRC, incineration, and ocean disposal with an EPA permit under the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. sec. 1412; 40 C.F.R. pt. 220. Because state governments failed to ensure capacity for disposal of low-level waste, the 1980 Act was amended in 1985 by the Low-Level Radioactive Waste Policy Amendments Act, Pub. L. No. 99-240, 99 Stat. 1842 (1986) (incorporated at 42 U.S.C. sec. 2021b). The 1985 Amendments provided for a stricter timetable for states to develop waste capacity and established a series of incentives and disincentives for failing to comply.

The Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA), Pub. L. No. 95-604, 92 Stat. 3021 (codified in scattered sections of 42 U.S.C.), is designed to provide for the environmentally sound stabilization, disposal, and control of radioactive uranium mill tailings located at active and inactive mill operations. The statute provides for the assessment and remediation of mill tailings sites, and the regulation of mill tailings during processing at active mill operations. The NRC has authority to license mill operations and to enforce technical and other requirements, which must meet ambient standards for radioactive pollutants set by EPA. 40 C.F.R. pt. 192 (EPA standards); 10 C.F.R. pt. 40, app. A (NRC criteria for licensing mill operators).

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21.6.3 Nuclear Accident Liability Limitations

 

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The Price-Anderson Act amended the Atomic Energy Act to limit liability for nuclear "incidents." 42 U.S.C. sec. 2210. Originally, the liability limitation was set at US$560 million, but since 1988, the limitation has increased and is linked to a retroactive premium paid by operating nuclear facilities. The issue of when to impose liability for activities relating to the shipping, transport, use, and disposal of nuclear materials is still within the authority of state common law. See Silkwood v. Kerr-McGee Corp., 485 F. Supp. 566 (W.D. Okla. 1979) aff'd in part, rev'd in part, 667 F.2d 908 (10th Cir. 1982). See Section 4.2: General Environmental Rights and Responsibilities.

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21.7 Renewable/Alternative Energy Sources: Solar, Biomass, Geothermal, Tidal

 

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The energy crisis of the 1970's sparked a series of federal efforts aimed at diversifying the nation's energy resources by encouraging renewable, alternative energy sources. These efforts used two major strategies: creating a market for alternative energy or providing a tax incentive. This is the extent of federal regulation for most alternative sources, except geothermal sources. Creating the Market for Alternative Energy.

The Public Utilities Regulatory Policies Act of 1978 (PURPA), Pub. L. No. 95-617, 92 Stat. 3133 (codified as amended in 42 U.S.C. secs. 6802-6808 and in scattered sections of Titles 15, 16, 26, 42 and 43 U.S.C.), ensured a market for small-scale renewable energy by requiring public utilities to purchase electricity produced by qualifying facilities using renewable energy resources (including solar, wind, geothermal, or small-scale hydropower). PURPA exempted qualifying facilities from many of the regulations governing most energy utilities.

Tax Incentives

More common have been the use of federal and state tax incentives for residences and businesses that adopt alternative energy practices. Federal tax incentives have slowly been eliminated. Now there is only a ten per cent business tax credit for solar and geothermal energy. State tax laws followed the same cycle with over half of all states enacting some tax incentive for solar energy at one time or another.

Access to Geothermal Resources

Under the Geothermal Steam Act of 1970, Pub. L. No. 91-581, 84 Stat. 1566 (codified as amended at 30 U.S.C. secs. 1001-1027), the federal government has management authority over geothermal resources under federal lands. See United States v. Union Oil Co., 549 F.2d 1271 (9th Cir. 1977). Access to geothermal resources on state or private lands is generally governed by state common law or statutory rules. These vary greatly between states. The Geothermal Energy Research Development and Demonstration Act of 1974, 30 U.S.C. secs. 1101-1164, encouraged the identification and development of geothermal energy resources through a series of demonstration projects, technical assistance, loan guarantees, and federal grants. See also the Geothermal Energy Act of 1980, Pub. L. No. 96-294, 94 Stat. 763 (codified in scattered sections of 16 and 30 U.S.C.); the Geothermal Steam Act Amendments of 1988, Pub. L. No. 100-443, 102 Stat.1766 (1988) (codified in scattered sections of 30 U.S.C.).

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2003