One of the questions raised at the Hatton public meeting had to do with regulatory authority for permitting and enforcing permits and environmental laws in Alabama.
Environmental regulation is a complex area. It involves multiple federal and state agencies and lots of different federal and state laws.
This post presents an extremely simplified overview of the environmental regulatory system that would most likely be applicable in the extraction and processing of oil sands in Alabama.
Disclaimer 1: To any lawyers, journalists, policy wonks, engineers, and similar technical types who read this, please keep in mind that this is a simplistic overview intended as a basic educational tool for the general public.
Disclaimer 2: This post is not intended to be a comprehensive guide to environmental law and policy in Alabama nor is it intended to provide legal advice about legal rights or remedies. This is journalism, not legal advice.
Environmental Regulation: Federal
The US Congress passes legislation on matters relating to national environmental protection as part of its authority to regulate matters involving interstate commerce.
In 1969, the US Congress enacted the National Environmental Policy Act (NEPA). Among other things, NEPA requires that environmental impact studies be completed before undertaking a major federal action. This is important because the NEPA law only requires the environmental assessment (EA) and the environmental impact statement (EIS) when the action is proposed by a federal agency. NEPA does not apply to purely private or purely state actions. More on this in a later post. This is a 101 overview.
The Environmental Protection Agency was established in 1970 by an executive order of President Richard M. Nixon as part of an executive branch consolidation of various federal agencies that had been created to administer a hodgepodge of environmental laws. Among the responsibilities of the EPA was to administer NEPA. US Congress ratified the creation of the EPA through legislative action.
Over the years, EPA has been given the authority to create regulations to implement various other federal environmental laws and to oversee the administration and enforcement of these environmental laws.
These laws include:
- The Clean Air Act and various amendments to and extensions of the Clean Air Act
- The Clean Water Act and various amendments to and extensions of the CWA
- Safe Drinking Water Act
There are many other environmental laws. Other federal agencies also have authority over various matters related to the environment.
For now, our focus is on the permitting, monitoring and enforcement processes required by applicable laws such as the Clean Air Act, as amended and the Clean Water Acts, as amended.
Under these federal environmental laws, Congress allowed states to assume primary responsibility for administering the requirements of these laws. To exercise this authority, states were required to create state agencies to create policies and regulations to enforce the federal laws. More on the “partnership” between the EPA and states can be found starting here.
Alabama chose the state-administration option.
Alabama Environmental Regulation
The Alabama Department of Environmental Management (ADEM) is the agency created by the Alabama legislature to develop regulations for notice and permitting to and administer permitting process regarding clean air and water and waste remediation. Other state agencies have oversight authority with other environmental or land-use matters.
Again, for now our focus is on permitting, monitoring and enforcement of the Clean Air Acts and the Clean Water Acts.
In permitting matters, as a result of the delegation of authority, the EPA will generally not be involved unless ADEM fails to follow its own procedures and regulations OR if an ADEM action fails to comply with federal standards.
In other words, if ADEM does NOT follow its own rules and procedures in permitting or fails to enforce the law then citizens can ask the EPA to step in.
In general, the EPA only gets involved in this scenario: Someone with “standing” must challenge an ADEM action and then pursue the challenge through the state-level administrative review and appeals process.
Once the state level administrative appeals process is exhausted, the challenger can seek further review through the court system and/or EPA. But there is no guarantee the EPA will review the substance of the issues. The appeals process is primarily focused on whether all procedures were properly followed. The EPA might determine that ADEM followed all the procedures and acted in accordance with applicable environmental laws.
Environmental Protection in Alabama: Who’s In Charge?
So, in conclusion, the EPA does have ultimate regulatory oversight and enforcement authority.
But the initial permitting authority and monitoring is done through ADEM, an agency of the state of Alabama. And, as a general rule, the EPA only gets involved if ADEM doesn’t follow procedure or acts in a way that violates federal law.
Funding Hampers Enforcement in Alabama
As was pointed out at the Hatton public meeting, ADEM is under-funded and understaffed.
Assume for the sake of argument that we give ADEM the full benefit-of-the-doubt in terms of preferences over oil sands permitting and development. In any event ADEM’s capacity to monitor and enforce the permits and and otherwise monitor compliance with applicable laws is limited by funding and staffing.
In other words, under the best of circumstances, ADEM doesn’t have the money it needs to do its job to monitor permits and ensure the public interest is being served.
That means that “we the people” must be the eyes-and-ears and establish citizen-led water monitoring efforts.
“We the people” should also insist that the state legislature appropriate sufficient funds to pay for proper regulatory oversight.