Encyclopedia of Environmental Science and Engineering, Volume I and II

ENVIRONMENTAL LAW 365

Oil Pollution Act of 1990 (OPA ’90)

Galvanized into action by the Exxon Valdez oil spill in 1989,

Congress enacted the Oil Pollution Act of 1990 (OPA ’90),

which integrated and strengthened prior federal law covering

liability for and cleanup of oil spills. Modelled on CERCLA,

OPA ’90 establishes a billion dollar Oil Spill Liability Trust

Fund fi nanced by the imposition of a fi ve cents per barrel

tax on oil delivered at the refi nery. Owners and operators of

vessels and onshore and offshore facilities are strictly liable

for cleanup and natural resource damages, subject to the

defenses of (1) act of God, (2) act of war, or (3) negligence

of a third party not associated with the owner or operator.

Facilities must develop spill prevention, control, and coun-

termeasure (SPCC) plans, have them approved by EPA or

the Coast Guard, and implement them, or face heavy civil

and criminal penalties. Single hull tankers are to be phased

out, and licensing and supervision of offi cers and seamen are

strengthened. The OPA ’90 explicitly does not preempt state

oil spill laws.

CONSERVATION STATUTES

The Surface Mining Control and Reclamation Act (30 USC

1201 et seq. ) provides extensive federal regulation of pri-

vate coal surface mining on private lands and also regulates

excavation of coal by strip-mining on public lands. The basic

regulatory mechanism of this act is a permit system, to be

implemented by the States according to federal standards,

with provision for federal enforcement if a state program

does not meet federal standards. There are also fl at prohibi-

tions on surface mining in environmentally sensitive areas.

The Act is administered by the Offi ce of Surface Mining in

the Department of Interior.

The Fish and Wildlife Coordination Act (16 USC 661

et seq. ), originally passed in 1934, requires federal agen-

cies proposing water resource development projects, either

directly or by permit, to consult with the United States

Fish and Wildlife Service, United States Department of the

Interior, with a view towards conserving fi sh and wildlife

resources. The reports of the Secretary of the Interior under

the Act must include proposed measures for mitigating or

compensating damage to wildlife resources resulting from

the project. The proposing agency is only required to fully

consider the Secretary’s report.

The Endangered Species Act (16 USC IS31 et seq. )

requires federal agencies to ensure that any action authorized,

funded, or carried out by them are not likely to jeopardize the

continued existence of any listed endangered or threatened

species, or result in the destruction or adverse modifi cation

of its critical habitat. The key to the Act’s implementation

is mandatory consultation by the proposing agency with the

Fish and Wildlife Service. When FWS makes a formal fi nd-

ing that the proposed action will violate the Act, and after a

good faith effort to fi nd alternatives has failed, an Endangered

Species Committee, composed of Federal offi cials and a rep-

resentative of the affected States, must balance preservation

against development and decide the issue: but the Act weighs

the balance in favor of preservation.

The National Historic Preservation Act (16 USC 470

et seq. ) established the National Register of Historic Places.

It requires federal agencies to consult with the Advisory

Council on Historic Preservation whenever proposed federal

projects might have adverse impacts on historic or archae-

ological sites listed or eligible for listing on the National

Register. By regulation, the proposing federal agency must

consult a State Historic Preservation Offi cer when deter-

mining how its activities will affect historic or archeologi-

cal sites. The procedures also require that the SHPO, along

with the Advisory Council and the proposing agency, reach

written agreement in certain cases on how to mitigate any

adverse effects expected from a federal project.

The Wild and Scenic Rivers Act (16 USC 1271 et seq. )

was originally enacted in 1968 and has been subsequently

amended several times. The statute is jointly administered

by the Secretary of the Interior, through the National Park

Service and, when national forests are involved, by the

Secretary of Agriculture through the National Forest Service.

The Act established “a national wild and scenic rivers

system” and defi nes criteria for eligibility under each of the

following three classifi cations: wild, scenic, and recreational

rivers. The Act provides that “no department or agency of

the United States shall assist by loan, grant, license or oth-

erwise in the construction of any water resources project

that requires a direct adverse effect on the values for which

such river was established, as determined by the Secretary

charged with its administration.” Adjacent federal lands must

be managed consistent with the river’s conservation values.

The Coastal Zone Management Act (16 USC 1451 et seq. )

provides for federal fi nancial assistance to coastal state gov-

ernments for the development of Coastal Zone Management

Plans. Coastal Zone Management Plans have as their pri-

mary function land-use management for the Coastal Zone to

assure the orderly and environmentally sound development

of these ecologically sensitive areas. Under the Act, federal

or federally assisted or licensed projects are required to be

approved by the coastal state as consistent with an approved

Coastal Zone Management Plan. At the federal level the

Coastal Zone Management Program is administered by

the Offi ce of Coastal Zone Management of the National

Oceanic and Atmospheric Administration of the Department

of Commerce.

Sixty-one percent of all federal lands, some 470 million

acres, is administered by the Department of Interior’s Bureau

of Land Management. The statute under which BLM admin-

isters the national resource lands is the Federal Land Policy

and Management Act (43 USC 1701 et seq. ). Among the

Act’s declared policies is that public lands should be

retained in federal ownership unless disposal will serve the

national interest. In pursuit of this policy, all public lands

and resources are to be inventories periodically: all previ-

ous land classifi cations are to be reviewed; and all land use

decisions are to be the result of a land-use planning process.

When resources or land are to be disposed of or utilized,

effort must be made to assure a fair market value return

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