Introduction to Environmental Law Glicksman Fall 2010

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