Summary of Environmental Law in the United States

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22 Transportation


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22.1 Institutions with Authority over Transportation


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The Department of Transportation (DOT) is responsible for setting policies and standards regarding transportation and shipping within the United States. Congress has recognized that a comprehensive transportation policy furthers the national interest by making efficient the movement of people and goods, while reducing the negative impacts of fuel consumption and air pollution. 49 U.S.C. sec. 5301(a).

To realize these goals, Congress has enabled the DOT to: (1) regulate modes of transit; (2) promote safe, efficient, and economical transport; (3) encourage reasonable transportation rates while promoting competition; and (4) cooperate with the states in developing and implementing transportation policy. 49 U.S.C. sec. 10101. In addition to promoting energy conservation, the DOT has separate, but similar, provisions governing rail transport. Under the authority of the DOT, the Coast Guard has specifically tailored environmental policies consistent with the broader goals of the DOT. See [L]14 U.S.C. sec. 691.

Reflective of Congress' attempt to integrate the DOT's activities with national environmental policy, the Secretary of the DOT must consult with the Secretaries of the Interior, Housing and Urban Development, Agriculture, and the states in developing transportation programs. These programs must include actions to preserve and improve the natural beauty of lands affected by DOT projects. 49 U.S.C. sec. 303(a) , (b). In every department-initiated program, the DOT must make "special efforts [to] preserve the natural beauty of the countryside, public park and recreation lands, wildlife and waterfowl refuges, and important historic and cultural assets. . . ." 49 U.S.C. sec. 5301(e). With few exceptions, the Secretary may approve a project involving public or culturally significant lands only if: (1) no alternate use of the site is feasible; and, (2) the project takes all measures possible to minimize damage to the area resulting from its use. 49 U.S.C. sec. 303(c).

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22.2 Public Transportation Policies


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Consistent with the broader environmental goals of the DOT, Congress has recognized the importance of encouraging the development, improvement, and use of public mass transportation systems on federal-aid highways. 23 U.S.C. sec. 142(a)(1). "Mass transportation" means any conveyance that provides regular transportation to the public, excluding school, charter, or sightseeing buses. 49 U.S.C. sec. 5302(a)(7) . Improving the efficiency of public mobility advances the national interest by reducing the negative effects of fuel consumption and air pollution. 49 U.S.C. sec. 5301(a). Public mass transit in rural, as well as urban, areas is also a priority. 49 U.S.C. sec. 5301(b). States and local governments are eligible for financial assistance in developing their own public or privately-operated mass transit systems. The DOT has authorization to approve on any federal-aid system the construction of preferential lanes for high-occupancy vehicles. 23 U.S.C. secs. 142(a)(1) and (b). The DOT may also approve modifications of existing highway systems to accommodate alternate modes of transit, such as high speed rail, magnetic levitation systems, and public mass transit facilities, provided the alterations do not interfere with automotive safety. 23 U.S.C. secs. 142(c) and (f). In order to conserve fuel, decrease traffic congestion, reduce air pollution, and enhance highway use, the DOT may authorize projects which encourage "carpools," including preferential lanes and parking facilities. 23 U.S.C. sec.146(a).

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22.3 Energy Efficiency Standards for Automobile and Other Vehicles


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The Energy Tax Act of 1978, 26 U.S.C. sec. 4064, imposed an excise tax ranging from US$1000 to US$7500 on automobiles that get less than 22.5 miles per gallon. 26 C.F.R. sec. 48.4064-1. The tax is based on the calculated fuel economy of the model type. The Act also imposed a Corporate Average Fuel Economy (CAFE) standard of 27.5 miles per gallon on all corporate fleets of more than ten cars and 20.7 miles per gallon for light trucks (including vans and sport utility vehicles). Failure to meet the standard can lead to a civil fine graduated according to the level of non-compliance and the number of vehicles in the fleet. 49 U.S.C. secs. 32901-32919, 2008. In a non-adopted ruling released September 29, 1994, a trade panel concluded that the CAFE standards violated the General Agreement on Tariffs and Trade (GATT) because the law requires separate CAFE calculations for automobiles manufactured domestically and automobiles not manufactured domestically by that same manufacturer. 49 U.S.C. sec. 32904, see Report of Panel: United States-Taxes on Automobiles (1994). See Section 21.2: Energy Efficiency and Consumption.

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22.4 Vessel Source Pollution of Water


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See also Section 22.5: Transportation of Hazardous Materials, Section 25.6: Agreements Relating to Marine Pollution and Conservation.

The Act to Prevent Pollution from Ships, 33 U.S.C. secs. 1901-1912, is the primary act governing pollution from sea-going vessels. The Act implements the 1973 International Convention for the Prevention of Pollution from Ships, Annex I (oil pollution), Annex II (noxious substances) and Annex V (garbage), and the 1978 Protocol to the Convention (known as the MARPOL Protocol). Under Annex I of the Convention, oil tankers over 150 tons, or other ships over 400 tons, must meet certain safety, equipment, and seaworthiness standards. Annex II provides other standards and requirements for vessels that carry noxious substances in bulk. Under the Act, the Coast Guard is responsible for inspecting and certifying that U.S. vessels meet the applicable requirements. 33 U.S.C. sec. 1904. The Coast Guard is also responsible for certifying that waste reception facilities at ports and terminals meet the requirements set forth in Annexes I, II, and V of the Convention. 33 U.S.C. sec. 1905. The Convention and the Act also require immediate reporting of any unpermitted discharges of oil or other substances. Convention, Article 8; Protocol I; 33 U.S.C. sec. 1906. Violations of the Convention or the Act can be subject to civil penalties up to US$25,000 per day per violation. Making false statements can lead to a penalty of up to US$5000, and knowing violations can lead to criminal felony charges. 33 U.S.C. sec. 1908.

The Oil Pollution Act of 1990 bans the use of single-hull bulk oil tankers beginning in 2015 in waters subject to the jurisdiction of the United States. 46 U.S.C. sec. 3707a. In the meantime, the Coast Guard has promulgated regulations to ensure the safe operation of existing bulk oil tankers. See 33 C.F.R. pt. 157.

The Organotin Antifouling Paint Control Act of 1988, 33 U.S.C. secs. 2401-2410, prohibits the use of certain paints on the hulls of certain ships. Antifouling paints containing compounds made of tin are used to kill barnacles and other crustacea that would otherwise attach to ships. Because these compounds were found to have a serious toxic effects on all aquatic organisms, Congress banned their use on boats under 25 meters in length. 33 U.S.C. sec. 2403. In addition, no antifouling paint can be sold unless the Environmental Protection Agency (EPA) has certified the paint.

The U.S. Public Vessel Medical Waste Anti-Dumping Act of 1988, 33 U.S.C. secs. 2501-2504, prohibits any vessel owned or operated by the U.S. government, including military vessels, from disposing of medical wastes in the ocean. 33 U.S.C. sec. 2503.

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22.5 Transportation of Hazardous Materials


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See also Section 14: Environmental Emergencies.

Transporters of Hazardous Waste

Under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. secs. 6901-6991i, transporters of hazardous waste may only accept wastes accompanied by a complete hazardous waste manifest. The transporter must sign and return the manifest to the generator before leaving the property, and must obtain the signature of the owner or operator of the disposal facility, or, in certain cases, the next transporter. The transporter must retain the manifests for three years. The transporter must deliver the waste to the facility or the alternate facility designated by the generator on the manifest. In the case of discharges or spills during transport, the transporter must notify the National Response Center, provide a written report to the Office of Hazardous Materials Regulations of the Department of Transportation and/or notify the Coast Guard, as required by 33 C.F.R. sec. 153.203.

Transporting Solid Waste in Coastal Waters

The Shore Protection Act of 1988, 33 U.S.C. secs. 2601-2623, prohibits the transport of any municipal or commercial solid waste without a permit from the DOT. 33 C.F.R. pt. 151. The Act also requires reasonable precautions in loading, securing, and offloading municipal or commercial waste, and requires the cleanup of any waste deposited in the coastal waters. The Secretary of Transportation is authorized to examine vessels transporting waste and to deny entry to any place in the United States if a vessel does not have the required permit. 33 U.S.C. sec. 2605. Operating without a permit is subject to a civil penalty of up to US$10,000 per day per violation. Civil penalties are possible up to US$25,000 per day, and are available for other violations of this law. 33 U.S.C. sec. 2609. The law applies to foreign vessels to the extent allowed by international law. 33 U.S.C. sec. 2622.

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