The Lacey Act: Protecting the Environment by Restricting Trade

Kristina Alexander
Legislative Attorney

The Lacey Act was enacted in 1900 to prevent hunters from killing game in one state and escaping prosecution by crossing state lines. It has evolved into a law that prohibits import, export, transport, purchase, or sale of species when that action would violate state, federal, tribal, or foreign law. Congress amended the Lacey Act most recently in 2008, expanding the reach of the act to include timber and timber products. Implementation of the 2008 Amendments has proved controversial, and the Department of Agriculture Animal and Plant Health Inspection Service (APHIS) initially delayed implementing the act’s new declaration requirements for importing wood products.

Some find the Lacey Act puzzling. While people charged with violating the act are charged with violating a U.S. law, that prosecution is premised on a violation of another law, sometimes the law of another country. That has led some to claim that the United States is enforcing the laws of another country. U.S. conservation laws (such as the Lacey Act), however, have long protected species and habitats even outside of the United States. Worldwide conservation was one reason for expanding Lacey Act coverage to more plants in 2008. Preserving U.S. timber jobs and prices was another reason. However, the 2008 Amendments allow enforcement of foreign laws that are not directly related to conservation or U.S. jobs, such as failure to pay foreign stumpage fees, or shipping wood in violation of a country’s export restrictions. After search warrants were executed by the Department of the Interior Fish and Wildlife Service (FWS) against Gibson Guitar Corp. of Nashville, TN, apparently based on the possible illegal import of wood from India, Congress has taken another look at whether the 2008 Amendments achieve the goals of the Lacey Act. As introduced in October 2011, H.R. 3210 would amend the act to limit its application to wood imported prior to 2008 and composite wood products, and would allow an innocent owner defense to forfeiture actions. A different approach is taken by H.R. 4171/S. 2062, which would eliminate any reference to violations of foreign laws and end criminal prosecutions for violating the act.


Date of Report: April 12, 2012
Number of Pages: 25
Order Number: R42067
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Hydraulic Fracturing and Safe Drinking Water Act Issues

Mary Tiemann
Specialist in Environmental Policy

Adam Vann
Legislative Attorney

Hydraulic fracturing is a technique developed initially to stimulate oil production from wells in declining oil reservoirs. More recently, it has been used to initiate oil and gas production in unconventional (i.e., low-permeability) reservoirs where these resources were previously inaccessible. This process now is used in more than 90% of new oil and gas production wells. Hydraulic fracturing is done after a well is drilled and involves injecting large volumes of water, sand (or other propping agent), and specialized chemicals under enough pressure to fracture the formations holding the oil or gas. The sand or other proppant holds the fractures open to allow the oil or gas to flow freely out of the formation and into a production well.

Its application, along with horizontal drilling, for production of natural gas (methane) from coal beds, tight gas sands, and, more recently, from unconventional shale formations, has resulted in the marked expansion of estimated U.S. natural gas reserves in recent years. Similarly, hydraulic fracturing is enabling the development of unconventional domestic oil resources, such as the Bakken Formation in North Dakota and Montana. However, the rapidly increasing and geographically expanding use of fracturing, along with a growing number of citizen complaints and state investigations of well water contamination attributed to this practice, has led to calls for greater state and/or federal environmental regulation and oversight of this activity.

Historically, the Environmental Protection Agency (EPA) had not regulated the underground injection of fluids for hydraulic fracturing of oil or gas production wells. In 1997, the U.S. Court of Appeals for the 11th Circuit ruled that fracturing for coalbed methane (CBM) production in Alabama constituted underground injection and must be regulated under the Safe Drinking Water Act (SDWA). This ruling led EPA to study the risk that hydraulic fracturing for CBM production might pose to drinking water sources. In 2004, EPA reported that the risk was small, except where diesel was used, and that regulation was not needed. However, to address regulatory uncertainty the ruling created, the Energy Policy Act of 2005 (EPAct 2005) revised the SDWA term “underground injection” to explicitly exclude the injection of fluids and propping agents (except diesel fuel) used for hydraulic fracturing purposes. Consequently, EPA currently lacks authority under the SDWA to regulate hydraulic fracturing, except where diesel fuel is used. However, as the use of this process has grown, some in Congress would like to revisit this statutory exclusion.

Several relevant bills are pending. H.R. 1084 and S. 587 would repeal the exemption for hydraulic fracturing operations established in EPAct 2005, and amend the term “underground injection” to include explicitly the injection of fluids used in hydraulic fracturing operations, thus authorizing EPA to regulate this process under the SDWA. The bills also would require disclosure of the chemicals used in the fracturing process. S. 2248 and H.R. 4322 would specify that a state has sole authority to regulate hydraulic fracturing on federal lands within state boundaries. EPA’s FY2010 appropriations act urged the agency to study the relationship between hydraulic fracturing and drinking water quality. The interim report, expected in 2012, may help inform Congress on whether federal action is needed. Meanwhile, numerous states are reviewing or have revised their oil and gas rules to address the increased use of hydraulic fracturing.

This report reviews past and proposed treatment of hydraulic fracturing under the SDWA, the principal federal statute for regulating the underground injection of fluids to protect groundwater sources of drinking water. It reviews current SDWA provisions for regulating underground injection activities, and discusses some possible implications of, and issues associated with, enactment of legislation authorizing EPA to regulate hydraulic fracturing under this statute.


Date of Report: April 10, 2012
Number of Pages: 38
Order Number: R41760
Price: $29.95

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Water Quality Issues in the 112th Congress: Oversight and Implementation

Claudia Copeland
Specialist in Resources and Environmental Policy

Much progress has been made in achieving the ambitious goals that Congress established nearly 40 years ago in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. However, long-standing problems persist, and new problems have emerged. Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from factories and sewage treatment plants.

There is little agreement among stakeholders about what solutions are needed and whether new legislation is required to address the nation’s remaining water pollution problems. For some time, efforts to comprehensively amend the CWA have stalled as interests have debated whether and exactly how to change the law. Congress has instead focused legislative attention on enacting narrow bills to extend or modify selected CWA programs, but not any comprehensive proposals.

For several years, the most prominent legislative water quality issue has concerned financial assistance for municipal wastewater treatment projects. House and Senate committees have approved bills on several occasions, but, for various reasons, no legislation has been enacted. At issue has been the role of the federal government in assisting states and cities in meeting needs to rebuild, repair, and upgrade wastewater treatment plants, especially in light of capital costs that are projected to be as much as $390 billion. In the 111th Congress, the House passed H.R. 1262 to reauthorize the CWA’s State Revolving Fund (SRF) program to finance wastewater infrastructure, and a companion bill, S. 1005, was approved by the Senate Environment and Public Works Committee. No legislation was enacted. Reauthorization legislation has been introduced in the 112th Congress (H.R. 3145).

Programs that regulate activities in wetlands also have been of interest, especially CWA Section 404, which has been criticized by landowners for intruding on private land-use decisions and imposing excessive economic burdens. Environmentalists view this regulatory program as essential for maintaining the health of wetland ecosystems, and they are concerned about court rulings that have narrowed regulatory protection of wetlands and about related administrative actions. Many stakeholders desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are appropriate. In the 111th Congress, the Senate Environment and Public Works Committee approved a bill that sought to clarify but not expand the CWA’s geographic scope (S. 787). Because some stakeholders believe that the bills would expand federal jurisdiction—not simply clarify it—the bills were controversial, and no legislation was enacted. In the 112th Congress, bills that would narrow the scope of the act’s jurisdiction have been introduced (S. 2122/H.R. 4304).

These issues have drawn interest in the 112th Congress, as well. In addition, a number of other CWA issues have been the subject of congressional oversight and legislation, with some legislators highly critical of recent regulatory initiatives and others more supportive of EPA’s actions. Among the topics of interest are environmental and economic impacts of Chesapeake Bay restoration efforts, federal promulgation of water quality standards in Florida, regulation of surface coal mining activities in Appalachia, and other CWA regulatory actions. Congressional interest in several of these issues has been reflected in debate over policy provisions of legislation providing FY2012 appropriations for EPA (P.L. 112-74).


Date of Report: April 9, 2012
Number of Pages: 26
Order Number: R41594
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Lead-Based Paint Poisoning Prevention: Summary of Federal Mandates and Financial Assistance for Reducing Hazards in Housing

Linda-Jo Schierow
Specialist in Environmental Policy

According to the Centers for Disease Control and Prevention (CDC), about 1.4% of surveyed children living in the United States between the ages of 1 and 5 years have an unacceptably high level of lead in their blood (i.e., 10 micrograms or more of lead per deciliter of blood), which may result in learning disabilities, reduced intellectual ability, or other problems. Poor children are at special risk because elevated blood-lead levels are more prevalent among children from families with lower incomes, and inadequate nutrition can increase lead absorption by the body. Many sources of lead exposure have been eliminated or reduced, but an important remaining source of lead exposure today is house dust containing lead-based paint (LBP) from deteriorated or abraded surfaces of walls, door jambs, and window sashes, or from home renovations that release LBP. Many buildings constructed prior to 1978, when the lead content of interior paint was restricted to current levels, still contain LBP, but most LBP is found in homes constructed prior to 1960.

The federal Lead-Based Paint Poisoning Prevention Act (LBPPPA), as amended, directs the Department of Housing and Urban Development (HUD) to regulate, and authorizes funding for, the detection and control of LBP hazards in housing that receives federal assistance. There are no federal mandates related to LBP in privately owned housing unless it receives federal financial assistance in some form. However, the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X of the Housing and Community Development Act of 1992; P.L. 102-550) directs the U.S. Environmental Protection Agency (EPA) to require training and certification in LBP safe work practices for contractors engaged in home renovations and repairs of homes constructed prior to 1978. In addition, Title X authorizes federal grants through HUD to state and local governments for LBP hazard reduction in privately owned housing that does not receive federal assistance. Congress annually considers funding for these lead hazard reduction grant programs, all of which target older (pre-1978) housing for low-income residents.


Date of Report: April 4, 2012
Number of Pages: 9
Order Number: RS21688
Price: $19.95

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The Emergency Planning and Community Right-to-Know Act (EPCRA): A Summary

Linda-Jo Schierow
Specialist in Environmental Policy

This report summarizes the Emergency Planning and Community Right-to-Know Act (EPCRA) and the major regulatory programs that mandate reporting by industrial facilities of releases of potentially hazardous chemicals to the environment, as well as local planning to respond in the event of significant, accidental releases. The text is excerpted, with minor modifications, from the corresponding chapter of CRS Report RL30798, Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency, coordinated by David M. Bearden, which summarizes major environmental statutes.

The Emergency Planning and Community Right-to-Know Act (42 U.S.C. 11001-11050) was enacted in 1986 as Title III of the Superfund Amendments and Reauthorization Act (P.L. 99-499). In Subtitle A, EPCRA established a national framework for the U.S. Environmental Protection Agency (EPA) to mobilize local government officials, businesses, and other citizens to plan ahead for chemical accidents in their communities. EPCRA required each state to create a State Emergency Response Commission (SERC), to designate emergency planning districts, and to establish local emergency planning committees (LEPCs) for each district. EPA is required to list extremely hazardous substances, and to establish threshold planning quantities for each substance. The law directs each facility to notify the LEPC for its district if it stores or uses any “extremely hazardous substance” in excess of its threshold planning quantity. LEPCs are to work with such facilities to develop response procedures, evacuation plans, and training programs for people who will be the first to respond in the event of an accident. EPCRA requires that facilities immediately report a sudden release of any hazardous substance that exceeds the reportable quantity to appropriate state, local, and federal officials.

Subtitle B directs covered facilities annually to submit information about the chemicals that they have present to the LEPC, SERC, and local fire department. In addition, manufacturers and other facilities designated by EPA must estimate and report to EPA annually on releases from their facilities of certain toxic chemicals to the land, air, or water. EPA must compile that data into a computerized database, known as the Toxics Release Inventory (TRI). Generally, all information about chemicals that is required to be reported to LEPCs, SERCs, or EPA is made available to the general public, but EPCRA authorizes reporting facilities to withhold the identity of a chemical if it is a trade secret. Citizens are given the authority to bring civil action against a facility, EPA, a governor, or an SERC for failure to implement EPCRA requirements.


Date of Report: April 5, 2012
Number of Pages: 9
Order Number: RL32683
Price: $19.95

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