Projects:

San Francisco Bay Area:

San Francisco
� Hunters Point Shipyard
�Shipyard Waterfront Park
� Yosemite Slough
� Treasure Island
� Presidio
Alameda
�Alameda Naval Air Station
�FISC Annex
East Bay Housing
Oakland
�Chinatown
Vallejo
�Mare Island Naval Shipyard
Contra Costa County
� Concord Naval Weapons Station
Suisun Bay
� Mothball Fleet

National:

Military & the Environment
RABS

International:

Philippines
Okinawa
Hidden Casualties of War

Program Areas:

Environment
Economics
Justice
Education
Public Partnership
War & the Environment

Environmental Law & Federal Facilities

State & Federal Regulations

Below are overviews of the major federal and state environmental laws that govern the environmental cleanup of federal facilities in California:

• Comprehensive Environmental Compensation and Liability Act (CERCLA)/Superfund
• Clean Water Act (CWA)
• Endangered Species Act (ESA)
• National Environmental Protection Act (NEPA)
• California Environmental Quality Act (CEQA)
• Sovereign Immunity

Comprehensive Environmental Compensation and Liability Act (CERCLA)/Superfund, 42 U.S.C. s/s 9601 et seq. (1980)

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, was enacted by Congress on December 11, 1980, providing broad Federal authority to identify and implement the appropriate response to hazardous wastes that have been released or that may be released into the ground, water, and air. The cleanup should protect human health and the environment. CERCLA established prohibitions and requirements for closed and abandoned hazardous waste sites and provided for liability of the those responsible for the release of hazardous waste into the environment at these sites. CERCLA also established a trust fund to provide for cleanup when no responsible party could be found; this trust fund was the result of a tax on the chemical and petroleum industries. CERCLA authorized both short-term removal actions to address releases or threatened releases that require an immediate response as well as long-term removal actions to permanently significantly reduce the risks to humans and the environment from releases or threatened releases.

Originally, CERCLA did not cover property owned by the U.S. government. This was changed on October 17, 1986, when Congress passed the Superfund Amendments and Reauthorization Act (SARA), which amended CERCLA. As a result of SARA, the federal government must follow CERCLA regulations when cleaning up contaminated property owned by the U.S. government.

Learn more about the major steps in the CERCLA cleanup process.

For more information on CERCLA, see the U.S. Environmental Protection Agency's web site at http://www.epa.gov/superfund/action/law/cercla.htm

To read the text of the Comprehensive Environmental Response, Compensation, and Liability Act, see http://www4.law.cornell.edu/uscode/42/ch103.html

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Clean Water Act, 33 U.S.C. ss/1251 et seq (1977)

The Federal Water Pollution Control Act Amendments of 1972 was enacted as a result of increasing public and governmental awareness, understanding, and concern about pollution in our surface waters. This law as amended in 1977 is commonly referred to as the Clean Water Act (CWA). The CWA established the basic structure for regulating discharge of pollutants into the surface waters of the U.S. and is the cornerstone of surface water quality protection in the United States. The statute employs a variety of regulatory and non-regulatory tools intended to reduce direct pollutant discharges into waterways, finance municipal wastewater treatment facilities, and manage polluted runoff. These tools are employed to achieve the broader goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters so that they can support "the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water." Over time, the CWA has been amended and modified, and programs have shifted to a more holistic watershed-based approach that places equal emphasis on protecting healthy waters and restoring impaired ones.

For more information on the Clean Water Act, see the U.S. Environmental Protection Agency’s web site at http://www.epa.gov/region5/water/cwa.htm

To read the text of the Clean Water Act, see http://www4.law.cornell.edu/uscode/33/ch26.html

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Endangered Species Act, 7 U.S.C. 136;16 U.S.C. 460 et seq. (1973)

The Endangered Species Act (ESA) provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found. Species include birds, insects, fish, reptiles, mammals, crustaceans, flowers, grasses, and trees. The law prohibits any action, administrative or real, that results in a "taking" of a listed species, or adversely affects habitat for a listed species. Anyone can petition the U.S. Fish and Wildlife Service to include a species on this list.

For more information on the Endangered Species Act, see the U.S. Fish and Wildlife Service web site at http://endangered.fws.gov/whatwedo.html or the U.S. Environmental Protection Agency web site at http://www.epa.gov/region5/defs/html/esa.htm

To read the text of the Endangered Species Act, see http://www4.law.cornell.edu/uscode/16/ch35.html or http://endangered.fws.gov/esa.html

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National Environmental Policy Act, 42 U.S.C. 4321-4347 (1969)

The National Environmental Policy Act (NEPA) requires federal agencies to integrate environmental values into their decision-making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. NEPA's basic policy is designed to ensure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment. NEPA requirements are invoked when airports, buildings, military complexes, highways, parkland purchases, and other federal activities are proposed. Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all Federal agencies and are the most visible NEPA requirements. The Council on Environmental (CEQ) Quality (http://www.whitehouse.gov/ceq/) has the task of ensuring that federal agencies meet their obligations under NEPA.

For more information on the National Environmental Policy Act, see the CEQ NEPA Task Force web site at http://ceq.eh.doe.gov/nepa/nepanet.htm

To read the text of the National Environmental Policy Act, see http://ceq.eh.doe.gov/nepa/regs/nepa/nepaeqia.htm or http://www4.law.cornell.edu/uscode/42/ch55.html

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California Environmental Quality Act, Pub. Res. Code §21000 et seq.

The basic goal of the California Environmental Quality Act (CEQA) is to develop and maintain a high-quality environment now and in the future. Through CEQA, California's public agencies are supposed to identify the significant environmental effects of their actions; and either avoid those significant environmental effects, where feasible; or mitigate those significant environmental effects, where feasible. CEQA applies to "projects" proposed to be undertaken by or requiring approval by State and local government agencies. "Projects" are activities that have the potential to have a physical impact on the environment.

A lead government agency must complete the environmental review process required by CEQA. For all projects governed by CEQA, the lead agency must prepare a Negative Declaration if it finds no "significant" impacts from the project; a Mitigated Negative Declaration if it finds "significant" impacts but revises the project to avoid or mitigate those significant impacts; or an Environmental Impact Report (EIR) if it finds "significant" impacts. An EIR should provide State and local agencies and the general public with detailed information on the potentially significant environmental effects that a proposed project is likely to have; list ways which the significant environmental effects may be minimized; and indicate alternatives to the project.

For more information on the California Environmental Quality Act, see http://ceres.ca.gov/topic/env_law/ceqa/summary.html and http://ceres.ca.gov/topic/env_law/ceqa/

To read the text of the California Environmental Quality Act, see http://ceres.ca.gov/topic/env_law/ceqa/stat/

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Sovereign Immunity

Sovereign immunity refers to a doctrine that states that the Federal government (the "sovereign") is exempt (immune) from lawsuit and cannot be sued without its consent. The origin of this concept is believed to date back to England, where it was believed that the King could do no wrong. Although the United States has limited its immunity in several major steps and has waived its immunity in many of the major environmental laws, sovereign immunity remains an ever-present issue in litigation against the federal government.

Relative to the cleanup of Federal facilities, the Federal government has waived immunity under the Comprehensive Environmental Compensation and Liability Act (CERCLA), which governs the cleanup of closed military facilities. In CERCLA, the United States government is included in the definition of the term "person" thereby indicating that the United States government must comply with CERCLA just like any other person. Section 120(a) of CERCLA states that the Federal government must comply with the provisions of CERCLA in the same manner as any non-governmental entity and that CERCLA applies to all facilities that are owned or operated by the Federal government just as it does to non-governmental facilities (42 U.S.C. section 9620(a)(1) and (2)). Section 159(a) of CERCLA also waives the federal government's sovereign immunity by making the government subject to suit for a violation of the provisions of CERCLA (42 U.S.C. section 9659(a)(1) and (2)).

The case of former military bases that are no longer owned by the federal government raises a slightly different issue. Such former bases are referred to as "formerly used defense sites" (FUDS) and are subject to the provisions of the Defense Environmental Restoration Program (DERP). The DERP statute requires the Secretary of Defense to carry out environmental restoration at FUDS in accordance with the provisions of CERCLA (10 U.S.C. section 2701(c)(1)(B)). Thus, CERCLA's waiver of sovereign immunity also applies at FUDS.

Other major environmental laws under which the Federal government has waived sovereign immunity include the Solid Waste Management Act and the Resource Conservation and Recovery Act (RCRA).

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