Introduction to Environmental Law – Glicksman – Fall 2010

  • I. General Principals and Policies
  • Typical Characteristics of Environmental Law:
  • Clashing Interests
  • Typically Irreconcilable (Coase)
  • Scientific Uncertainty as to the effects that something may have
  • EG: Chemical X is beneficial, but will it turn out to be a carcinogen?
  • EG: Leopold Forrest
  • Landowners want no mine, while the mining company wants a mine
  • Uncertainty as to the effects the mine will have on the daisies, hawks, water color and scenic beauty of the area
  • Goals of Environmental Law
  • Cost Internalization
  • Around 1970, NEPA was created: Goal was to make decision makers (Agencies) be more cognizant, assessing the costs and benefits of decisions affecting the environment
  • “Stop and Think” about what they were doing
  • Prior to this, never had to think of the costs…
  • Now, with CAA and CWA this cost internalization also applies to private entities
  • Sustainable Development
  • Conserve/Preserve Environmental Integrity through sustainable development
  • But:
  • While we want sustainable development, we donot want to impose too much on Economic Progress or Social beliefs
  • Don’t want to hinder growth, or social, but don’t want unsustainable progress either

  • Environmental Law then, is Made up of 2 Parts
  • 1) Pollution Control
  • Protects health from toxins
  • Applies to private and governmental entities
  • 2) Natural Resource Management
  • Protects Biodiversity/Ecological integrity
  • Promotes sustainable development
  • Why is Environmental Law Controversial?
  • Focuses on long term, rather than short term
  • Correlation and Causality
  • Science is uncertain as to if cause and effect are actual
  • Therefore, maybe spending money to prevent alleged harms is worthless
  • Leaves idea that Technology is the answer
  • Infringes on property rights
  • Restricting what one can and cannot do with your own property
  • Environmental Restrictions Benefit- Tradeoffs- Who do we want to benefit?
  • Benefit Animals, Slugs, Bugs or
  • Benefit People with Technology
  • Costs Seen as Outweighing Environmental Benefits
  • Disproportionate Costs of Environmental Regulation
  • Some have called it “Radical and redistribution”
  • Look at 1980-Present Period
  • II. The Foundation and History of Environmental Law
  • Prior to 1960s
  • Environment was typically ignoredEconomic progress favored
  • Thought that Economics/Industry was always beneficial
  • Why was Environment Ignored?
  • 1) Short term outlook rather than long term view of the effects
  • 2) Idea that nature had no intrinsic value
  • 3) Unknown benefits of environment
  • EG: Wetlands actually decrease severity of hurricanes
  • Nuisance, Common Law suit was typically used to remedy environmental harms
  • Case-Law: Toward End of ‘60s
  • Scenic Hudson v. FPC
  • Citizen group successfully combated the building of a power plant on Hudson
  • Provided a template for future litigation
  • 1) Initiated by Ad-Hoc group, citizens: common tactic used today
  • 2) Standing- was liberally construed
  • 3) There was no precedent
  • 4) The π’s had to create procedural theory to convince court to reverse
  • 5) Court did reverse administrative decision, showing potential for more scrutinizing review
  • Roots: 1968-1973- The Formative Period
  • Birth
  • NEPA, CAA, CWA, Pesticide Regulation, Endangered Species Act
  • EPA
  • Why the Birth all of a Sudden?
  • 1) Post WWII growth in affluence, relocating to suburbs where they witnessed first hand degradation of what they had come to enjoy
  • 2) Synthetic Chemical Usage
  • Silent Spring made it clear that these did have negative affects
  • First hand witnessing the Santa Barbara oil spill killing animals
  • 3) Energy of Vietnam era protests into the environmental movement
  • 4) Industries recognition of this, and seeking out federal preemption which preempted more strict state standards
  • Some or combination of all birthed Environmentalism
  • Becomes a National Political Agenda with Bi-partisan support
  • Environmentalism: View that unrestrained modification of natural systems and unchecked application of technology through resource exploitation and development has substantial effects on human
  • 3 Basic Objectives:
  • 1) Reduce use of Air, Soil, Water for waste disposal
  • 2) Protect public from long term health and ecosystem degradation associated to exposure from harmful substances
  • 3) Conserve biodiversity
  • Premised on Conservation and Preservation Movement
  • Preservation:
  • Preserve large areas of land to remain wilderness
  • EG: National Parks
  • Conservation:
  • Deeper than merely preserving, but working with science to make compatible with democracy, bettering the environment with science
  • Moderate rate of usage, to ensure plentiful supplies in future
  • Goal of Environmental Law: Sustainability
  • Continuing, Refining: 1973-1980- the Environmental Decade
  • Legislation continued to protect potential public health risks
  • Emphasized limiting Toxicity Toxic Substances Control Act
  • Resource Usage Safe Drinking Water Act
  • Transporting, Treating, Storing Resource Conservation Recovery Act
  • Clean Up Waste Dumps Comprehensive Environ. Response, Compensation Liability Act
  • Coal Sites reclaimed, land prevented from being used Surface Mining Reclamation Act
  • Bipartisan Consensus Crumbles: 1980-88
  • Global issues become apparent…the environment is being affected
  • *But* Reagan issues executive order to not simply spend to fix environment, but do Cost benefit Analysis
  • More Contested
  • Little Progress: 1980-Present
  • 1970s legislation still essential legislation…little change
  • Change of House and Executive marks back and forth on environmental policy
  • Judiciary tightens Standing Jurisprudence, Federalism
  • States begin to take leading roles
  • III. Economic Analysis and Environmental Law
  • 3 Principles of EconomicsCan Help Analyze aspects of Environmental Law
  • 1) Can explain why the Environmental Harms occur
  • 2) Consider when the government should step in, intervene with regulation
  • Rather than simply leaving to Free Market
  • 3) Identify what to regulate and the Optimal Methods of Preventing Harms
  • Principle 1:
  • Economics can explain why Environmental Harms occur
  • Tragedy of Commons:
  • In a free market, with everyone acting rationally…The incentive is to use all the resources before anyone else can
  • No incentive not to use them all
  • Problem is that what they take is finite, scarce So all eventually lose
  • The reason why environmental harms occur
  • Therefore in Free Market, we need regulation to coerce
  • Make it cheaper, more incentive to control environmental spill-over than to ignore the spill over
  • Through Tort liability, fines, etc…
  • Principle 2:
  • Economics can consider when the government should step in, and regulate
  • In a perfect world, Free Market would rule
  • Promotes the most efficient transfer of goods
  • Realistically, there are many flaws and inefficiencies however
  • Each Flaw Justifies the Government stepping in to regulate the Market
  • 1) Perfect Information
  • If the consumer knew everything, they’d choose the best product for environment
  • Harm exacerbated w/o information, which is the case- PI is lacking
  • Regulation can coax this information out
  • 2) Transaction Costs
  • Prevents free market collaboration
  • Things are costly…negotiations, solutions, etc…
  • EG: If factory harms 3 people, at $500 each, and to control harm $1200 cost, than the 3 should pay $400 each.
  • But: Imperfect market, people disagree, think they were harmed less so should pay less, etc… hire mediator, negotiate solution costs $ too
  • Eventually the paying $400 to avoid $500 in damage becomes, adding all transaction costs, >$500…making Cost>Environmental Benefit
  • Free-Rider: May think others will put effort in, and he will benefit
  • 3) Externalities
  • Costs on people external to the transaction
  • Negative
  • Human made, unbargained for, negative element of environment
  • EG: Pollution; and uncompensated harm
  • Positive
  • Good enjoyed by many, but creator unpaid
  • EG Prob 1-2 p.4:
  • Climate is changing for the world based on pumping out Fossil Fuel Waste (Negative Externality)
  • Company is making $ however, and has no incentive to stop (Problem of Commons).
  • Economic Analysis justifies the regulation of Market to prevent environmental harms
  • Components of Regulation:
  • 1) Agencies- Apply the responsibilities they assigned
  • 2) Citizen Groups- Pick up any slack agencies dropped
  • EG: Sierra Club, etc…
  • 3) Courts- Oversee compliance, administer the laws
  • 4) Substance is just as important as Procedure
  • EG: NEPA is solely rules that need to be followed but literally has no substantive law
  • Coase:
  • Idea that Regulating to make Polluter Pay is flawed
  • Harmful effects arise when 2 people, whose resources are incompatible want the right to use the same one
  • It isn’t A harming B, because if we stop A, he is then harmed
  • All solutions have costs, but just because there are costs does not mean the government should regulate, although sometimes it should
  • Should be consensual bargaining at some points, regulation at others
  • Principle 3
  • Identify what to regulate and the Optimal Methods of Preventing Harms
  • Cost Benefit Analysis (CBA)
  • Assists in determining appropriate regulation, and what to regulate
  • The Formal analysis of comparing costs and benefits of Public Action (Regulation) and if it would result in net gain, or represent unjustified subsidy
  • Economists advocate CBA
  • Idea that regulate only those things where C<B
  • If done well, provides same action as an efficient market would have
  • 2 Goals
  • C<B
  • C as low as possible
  • Process
  • Agency must Figure out costs (Regulation requiring equipment, maintenance, etc), the benefits lost of the law (costs) transaction costs of regulation v. Benefits of regulating that thing (Cancer, Mutagen, disease, environmental degradation)
  • Congress has not required it
  • Criticisms of CBA
  • 1) Accuracy
  • Cannot accurately determine all the costs and benefits in practical way
  • When Identified, cannot accurately quantify in $ amount
  • Industry info is inaccurate, inflated to make regulation look worse?
  • Benefit Valuation
  • How do you put $ amount on benefit of human?
  • Some of said $7.2 M
  • Are older valued less, younger more, sick less?
  • Value of a species continued existence in $?
  • Dehumanizes
  • 2) Discount Rate/Time Value of Benefit
  • In Environmental law, the benefit of lives saved, environment assisted is many times very far into future
  • Skewed if not brought to compare “apples with apples”
  • But what rate is appropriate discount rate?
  • Concerns of Equity
  • 3) Distribution
  • “Environmental Justice” is not evenly distributed…Why?
  • Benefits are valued 2 ways:
  • Willingness to pay: value the “benefit” by what someone would pay…but in certain areas, poor, cannot pay same as a rich person would be willing to pay
  • Evidenced by Power Plants, Coal mines in poor areas?
  • Willingness to Sell: How much would you sell your clean environment for?
  • Probably more even measure
  • So, sometimes, the benefits in CBA are valued unjustly based on area of regulation and what people would pay
  • 4) Transparency
  • opponents argue it is not transparent
  • If it were, people might understand the decision, protest it
  • People are more likely to acquiesce if they understand how it was made
  • More legitimate
  • Needed to show what is considered, who (industries hiring big time economists) is involved, and what things mean (to lay person)
  • Along with Principle 3 identifying what to regulate through CBA, optimal method of regulation can be identified as well
  • Complying with tenet of CBA Analysis
  • Lowest Cost Possible
  • Economists say:
  • Performance Standards
  • EPA sets out a maximum acceptable level
  • EG: Pollution at 10lbs/S02 per year
  • Then, up to the industry to find a way to get to that level
  • Free market will be efficient
  • EG: if using less bad fuel is more cost-efficient than “scrubbers,” the industry will identify it, and make the change to comply
  • May use R+D team to create new way, find cheapest
  • Whatever it is, let market do it
  • Not Design Standards, regulating everything they do
  • Just the performance we want…let them design
  • Tradable Emissions
  • Not all industries should be regulated identically, as some have much cheaper costs to comply then others
  • Process:
  • Make an Aggregate acceptable emission level
  • EG: 10 lbs of So2/day
  • Then let the industry decide, and be able to buy/sell the difference in emissions
  • 1 company may do 8 lbs
  • can then sell the 2lbs it has credit for
  • Lets those with lower costs continue to lower, while allowing higher to manage costs of compliance with trading credits
  • Overall, aggregate pollution, capped at a limit stays the same
  • Information:
  • $144B industry in 2009, predominately in EU
  • Some US regions have CAP/TRADE
  • IV. Environmental Law, Science, Ethics
  • Ethics:
  • “Mode of Guidance”
  • Historical Understanding of Environment:
  • Man is the conqueror of the environment and land, which is here to serve Man and humans only”
  • Can do whatever we want to it, take from it
  • Some Eastern Religions based on a Leopoldian view, but still have degradation
  • Aldo Leopold:
  • Argued the Opposite
  • Land Ethic: We are part of an enlarged community, including soil, plants, species, etc… and we are stewards of this land, with a duty that implies respect
  • Challenged fundamental understanding
  • Philosophy and Ethics:
  • Philosophers have used Leopolidian, and other views to ague:
  • 1) Ecosystem’s Rights
  • We have a responsibility to respect this land
  • Takes from Leopold Land Ethic View
  • Moral duty to be part of it, the opposite of the current view
  • Opponents argue that rights are entitlements for sentient (conscious beings) only
  • So animals maybe, not environment/ecosystem
  • 2) We have duty to future Generations
  • Economic Justice View
  • We should preserve our resources so that future generation has similar
  • Opponents disagree, that future generation has no rights and we owe no duty to the unborn
  • Land Ethic’s Use:
  • To Help Environmental Law:
  • Public Trust doctrine is premised on the philosophy and idea that we are part of this land, and we need to protect it for future generations
  • To Hurt Environmental Law:
  • May actually create stumbling block to environmental stewardship
  • Land ethic may call for regulation of land, and more limited use to promote conservation and that were part of it
  • but this can trigger 5th/ 14th amendment takings claims too
  • Initially, in 70s this did not happen, but has gradually occurred
  • Science:
  • Original Ideas
  • Ecological View: Study of structure and function of nature, in grand perspective
  • Initially, thought that the environment had an equilibrium and that we had to halt our interruptions to stop changing this equilibrium
  • However, this proved untrue:
  • The Environment will change naturally and with our help
  • Science is Fundamental to Environmental Law:
  • 1) It can identify resource degradation
  • Silent Spring: Rachel Carsons showed the degradation caused by synthetic chemicals, and called for action
  • Helped spur pesticide laws
  • 2) Provide practical scientific based solutions, to solve the problem
  • Science can help find threshold level, for example, to pollution which prior to is acceptable, but after which is toxic
  • Manage the harms
  • How do Science and Environmental LawCoincide?
  • Environmental Law can be seen as a way to reduce the risk of harm to people and the environment, it is an effort to address risk
  • What is Risk?
  • Probability of Activity causing Harm x Severity of the Harm which will occur
  • The smaller one, and the bigger the otherstill can be equal
  • Comparative Risk Analysis:
  • Rationale for Risk Assessment:
  • Early on, in 70s, the more regulation was seen as better
  • However, slowly it was seen that although there was more, it was not effective
  • Misallocation of Resources
  • Overregulated Some  Underregulated Others
  • Wasted Resources
  • Justice Breyer’s View:
  • Prior to him being Supreme Court Justice, he wrote Book explaining the problems with Federal Regulation:
  • 1) Lacked Rational Selection Mechanism
  • Need method of assigning regulation
  • 2) Differing Agencies use Different Methods
  • Breyer Advocated having 1 central agency with expert decisions of Risk Assessment
  • What Is Risk Assessment?
  • A method of assessing risks and managing them through science
  • Attempts to Clear Uncertainty of:
  • 1) Has harm even occurred?
  • 2) If So, what is causing the harm
  • Principle 1- Science can Identify Resource Degradation
  • Step 1: Risk Assessment
  • Choose what is worth addressing now, and what can we leave alone
  • Identify what is the most Dangerous and probability
  • Identify, of the most dangerous, which are most likely to occur sooner
  • Determine at what exposure, levels are bad
  • Characterize the risk- Serious, Not Serious
  • Use Toxicology, biology, economics…
  • We can’t address them all, so we need to apply our limited resources to the most serious ones first
  • Assessment Serves 2 Functions:
  • 1) A Screening Function by determining what is serious
  • 2) A Prioritization Function by ranking
  • 9 Characteristics of Environmental Risk:
  • In Assessing Risk, we must ask if “Risk is serious enough to warrant action”
  • 1) Ignorance of Mechanism
  • Because we don’t fully understand many things we deal with, we cannot adequately manage its risk
  • 2) Potential for Catastrophic Results
  • Because we are ignorant of the risks, we cant specify how catastrophic the costs of it will be
  • 3) Relatively modest benefit
  • Most environmental risks are assymetrical to benefit
  • EG: Red Dye 40 looks nice, but causes cancer
  • 4) Low Subjective Probability
  • Take into account the probability of catastrophic results to balance the decision out
  • Yes its potential of catastrophe, but low potential
  • “Zero Infinity Dilemma”
  • 5) Internal Transfer Benefits
  • When benefits of product are internally transferred to its price
  • 6) External Transfer of benefits
  • Adverse effects usually transferred to environment
  • Market doesn’t internalize externalities
  • Go’s back to need of regulation in economics
  • 7) Collective Risk
  • Borne by many people; society is risk-averse, more so to collective than individual risk
  • 8) Latency
  • Environmental risks have extended delay between start and effects
  • 9) Irreversibility
  • Risk may be effectively impossible to reverse
  • Plutonium’s half life is 24,000 years
  • Mutagens effecting generations of people
  • Criticisms To Risk Assessment:
  • 1) Lack of Information
  • Unreliable data, and difficult to quantify risk
  • Too much assuming in data, and makes #’s meaningless
  • Science is Uncertain, and can’t assess risk correctly
  • Getting Reliable data, from industry would delay action because they have every incentive to delay to paralyze regulation
  • 2) Evidence does not support idea that resources are misallocated
  • 3) Environmental Justice Problems
  • Like that in Cost Benefit Analysis, distribution of the risks assessed may be difficult if they are concentrated harms
  • 4) Depending on Who is assessing makes big difference:
  • Everyone has different perceptions
  • Experts Look at expected annual mortality
  • Deaths/10,000
  • Public looks at more subjective things
  • Outrage Factors
  • Public looks at voluntarily assuming risk versus involuntary risk
  • Common/Difuse among population is seen as less serious than an exotic/concentrated one
  • Dread of ailment
  • Everyone hates cancer
  • Public Versus Expert
  • Because both disagree on what to assess, they will disagree as to what is dangerous
  • This was evident in an 1987 EPA Study of what perceptions were
  • Experts Said Radon Gas was Horrible, Public Had never heard of it
  • Public Hated hazardous waste disposal site, but EPA experts said it was not bad
  • Should We Listen to Public?
  • They don’t have expert knowledge to evaluate and technical nature of CRA discourages it
  • No Process/Procedure to hear everyone’s idea
  • Perhaps, in more local harm, get more democratic view?
  • Perhaps democracy is represented by voting for who you want, who then chooses EPA people who will make decision
  • Policy of Scientific Risk Assessment and Management
  • Scientific Uncertainty is occurring, so in assessing and managing, do we want to err on side of caution, or on side of conserving finances
  • False Positive:
  • Precautionary Principle
  • Spending resources on benign things, thinking they’re bad, when they turn out not to be
  • Better safe then sorry
  • EG: BPA’s seem to have horrible consequences, so we take precaution, and if we’re wrong, all we’ve lost is money
  • False Negative:
  • Not spending resources on something that looks innocuous, but turns out deadly
  • Argument: that, we don’t know enough, so we are spending unnecessarily, when we could have spent on something beneficial
  • Burden should be on those who want regulation
  • Neutral Argument/Risk-Risk Approach:
  • We should make sure that in our risk assessment, we don’t do more harm then good
  • Regulate the risks that regulation causes/versus risks of no regulation
  • EG: regulation can decrease disposable income, reducing the ability to spend on healthcare, good food, etc…The Regulation’s negative effects counter the positive ones
  • Very debated
  • Very controversial
  • Overall:
  • Should we be rather safe then sorry, regulating and leaving open to these criticisms (of using CBA, Risk Assessment, and regulating accordingly)or
  • Conserve our resources, and hope failure to regulate is not wrong or
  • Do we stay in the middle, understanding some of both may occur through Risk/Risk approach, forcing those who want regulation to have the burden of proof
  • Principle 2- Science can provide practical science based solutions
  • Step 2- Risk Management
  • Once the Risk has been assessed, as dangerous and in need of regulation
  • What do we do about the risk
  • The Policy Response if the Risk Assessed is Dangerous

The Common Law Baseline of Environmental Law