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Environmental Law
St. Johns University School of Law
Lyndon, Mary L.

ENVIRONMENTAL LAW

LYNDON

FALL 2012

1. Ecological injury that serves as the law’s threshold and often exclusive focus

a. Irreversible, Catastrophic, and Continuing Injury

b. Physically Distant Injury

i. actions in one location may have substantial adverse effects in very distant locations

c. Temporally Distant Injury

i. sometimes actions now may trigger the injury, but the injury itslef will be realized only in the distant future

d. Uncertainty and Risk

i. Sheer complexity of the natural environment and how much is still unknown about it. This uncertainty expresses itself in our inability to know beforehand the environmental impact of certain actions. (laws therefore directed to risk rather than actual impact)

e. Multiple Causes

i. Environmental harms are more typically the cumulative and synergistic result of multiple actions, often spread over significant time and space

f. Noneconomic, Nonhuman Character

i. many ecological injuries are not readily susceptible to monetary valuation

2. Insights from Economics

a. Allocating Scare Resources: Efficiency and Markets

i. Natural resources are scarce compared to human demands, we must make choices about their allocation.

ii. Under certain circumstances a well-functioning decentralized market, driven by the self-interested decisions of individual participants, will allocate scarce resources efficiently

iii. Efficient allocation – maximizes individual preference satisfaction, aggregated across society.

iv. Pareto efficiency – if any change in that allocation would reduce at least one persons preference satisfaction

1. A change that makes at least one person better off and no one worse off is Pareto-superior

v. In order for a market to allocate resources efficiently, it must meet several criteria:

1. Buyers and sellers must have full information about all relevant characteristics fo the good or services exchanged

2. There must be large numbers of buyers and sellers in the market, so that there is no collusion or monopoly power

3. There must be no externalities, that is costs or benefitsof the transaction that are not paid or realized by the participants

4. There must be well-defined and enforceable property rights to the resources traded

5. Transaction costs must be sufficiently low to allow mutually beneficial transactions to occur

3. The Role of Prices and Markets

a. Market systems generate pollution because many natural inputs into the production of goods and services (e.g.,air and water) are underpriced. Because no one owns these resources, in the absence of govt. regulation or legal protection for pollution victims, businesses will use them up freely, neglecting the external costs imposed on others.

b. “Internalizing the externality”: forcing businesses to compensate the people for the damages it imposed, such that the resource is no longer “underpriced.”

c. Because all resources in an economy cannot be privately owned, market systems will generate too much pollution by either efficiency or safety. à

i. Free access problem: arises when property is commonly held

1. If people weigh private benefits against private (as opposed to social) costs, they will overexploit common resources when given free access.

ii. Public goods problem: Public goods (goods which are held in common) are a problem for the free market because of free-riding and transaction costs (the cost of undertaking legal action).

1. Without government intervention (i.e. nuisance law), public goods will be undersupplied.

d. Free-market environmentalists: have advocated eliminating many environmental regulations, then relying on lawsuits by injured parties to “internalize” externalities.

e. Polluter Pays: having the polluter pay for the externalities or damages caused by its pollution ensures that the costs of production reflect the costs of environmental damage.

f. Beneficiary pays: usually comes into play with international environmental problems—if they imposed polluter pays, nations would decline to participate.

g. Coase Theorem: Polluter pays and beneficiary pays would, if bargaining were costless, each lead to efficient allocation of resources. Under either approach, the pollution will be abated only if controlling it is cheaper than the damage it causes its victims. In principle, either solution will result in solving the environmental problem, economically viewed, because it will eliminate the undesirable externality.

i. Application of Coase’s argument: urges that sometimes pollution problems can be left to private market solutions, where polluter and pollutee can bargain for the appropriate level of polluting activity relatively free from gov’t interference.

h. Efficiency criterion: if the environment as a resource were priced properly, markets would ensure it was used by whoever valued it most, as measured by a person’s willingness to pay for it.

4. Criticism: if the efficiency criterion had a normative basis in the ethical theory of utilitarianism, it would have a demonstrable connection with the happiness or a related normative conception of the good, and it would judge the value of actions and decisions according to those consequences (it does not).

5. Market Failure & Market Correction

a. Garret Hardin, The tragedy of the Commons

b. We overuse our environmental resources b/c they are available w/out cost to us, so there are no price mechanisms to make us aware of the harm we are causing to other humans or the environment

c. Tragedy of The Commons (herdsmen sending sheep to graze)

i. Sending another sheep to graze has a positive and negative component

1. Positive: herdsman receives all proceeds from the sale of an add’l animal; so his interest it to have more sheep (+1)

2. Negative: one more sheep will contribute to overgrazing (but since overgrazing is a problem shared by all herdsmen, the negative utility for 1 herdsman is a fraction of -1)

ii. Result: If positive utility is +1 and negative utility is a fraction of –1, each person is locked into a system that compels him or her to increase his or her herd without limit in a world that is limited.

d. Possible Options[/solutions]:

i. (1) sell off the commons as private property

ii. (2) keep the commons as public property, but allocate the right to enter them (on the basis of wealth, merit, lottery, first-come/first-serve).

e. Notes:

i. Leopold’s land ethic–thing is right when it tends to preserve the integrity, stability, and beauty of the biotic comm. And wrong if it tends otherwise

ii. Small communities are likely to be more successful at avoiding the tragedy through informal controls so long as there are no external markets for the resources.

iii. The tragedy occurs only when use of the commons reaches a level where congestion develops or where the resources are used so intensively that it exceeds the carrying capacity of the commons.

iv. Common pool of resource problem (CPR). Prisoner’s dilemma. It is individually rational because each player chooses her dominant strategy, which is the rational thing to do. It is collectively deficient because there exists another outcome that would leave each suspect better off than the all-testify outcome.

v. Argument: organizing collective action to prevent tragedies of the commons should constitute a primary function of government.

vi. Argument: privatizing the commons by creating property rights in common resources is a solution superior to government regulation of access.

1. Counter-argument: proponents of this approach are implicitly arguing that a community plagued by non-cooperation can improve its condition by cooperating. Krier finds no reason to believe that the same governmental failures that plague regulatory programs will not plague the establishment and oversight of new natural resources markets.

vii. Sagoff – the things we cherish, admire, or respect are not always the things we are willing to pay for (these things have a dignity rather than a price)

viii. Tarlock – Ethics can bridge the gap between scientific uncertainty and the risks fo inaction pending further research through the adoption of the cautionary principle.

6. Cost-Benefit Analysis

a. CBA provides (in theory at least) an objective mechanism for determining whether a proposed regulation is efficient.

b. CBA seeks to compare the social benefit of the policy to its opportunity cost (the social value foregone when the resources in question are moved away from alternative economic activities into the specific projects).

c. How do you estimate costs and benefits?

i. Some costs and benefits are harder to estimate in dollars than others

1. Ex. how do you place a value on lost recreational opportunities?

ii. Willingness to Pay: Fairly standard practice has been to estimate benefits according to what people would be willing to pay.

d. Criticism: the basic problem w/narrow economic analysis of health and environmental protection is that human life, health, and nature cannot be meaningfully described in monetary terms; they are priceless!

7. Valuing Ecosystem Services

a. Ecological Injury – serves as the law’s threshold and often exclusive focus.

b. Value of everything projects: ecologists have been attempting to place monetary values on the services that entire ecosystems perform for the benefit of humankind.

c. Ecosystem services: provide the conditions and processes that sustain human life (e.g., purifying air and water).

i. Research has shown the extremely high costs of replacing many of these services should they fail.

ii. Investing in natural capital (i.e. ecosystem services) can prove more efficient than using built capital to deliver key services.

iii. Even so, ecosystem services are rarely considered in CBAs, EIAs or wetland mitigation. à

d. An explicitly ecosystem services perspective provides two benefits:

i. Political – understanding the role of ecosystem services powerfully justifies why habitat preservation and biodiversity conservation are vital, though often overlooked, policy objectives

ii. Instrumental – efforts to capture the value of ecosystem services may spur institutional designs and market mechanisms that effectively promote environmental protection at the local, regional, national, and international levels. (if given the opportunity natural systems, can, in many cases, quite literally “pay their way.”)

e. If ecosystem services provide valuable services, why don’t more payment schemes exist?

i. Ignorance

1. We take ecosystem services for granted

2. This lack of knowledge is due to the lack of relevant data and the complexity of the task of analyzing how ecosystems provide services

ii. Institutional inadequacy

1. Legal protection of ecosystems was not a primary objective when the relevant laws were drafted.

a. Pollution laws rely on health based standards.

b. Conservation laws are species-specific.

iii. Problems inherent in public goods (*most important)

1. There are so few markets for ecosystem services because they are free—no markets exist in which they can be bought or sold (e.g., water purification & pollination)

a. As a result, there are no direct price mechanisms to signal the scarcity or degradation of these public goods until they fail.

f. Key challenge in implementing an ecosystem services approach: creating a market where none exists.

g. Notes:

i. Criticism of the “value of everything project,” compensation measures of different ecosystem elements are not compatible (i.e., a measure/calculation used for one wetland might not be accurate for another)

ii. Ecosystem services cannot be marketed until the functional linkages between different elements of the environment and valuable services are well enough understood that realistic values can be ass

TESTED. PP: P’s alleged through operation of Leaf Mill – they discharged toxic chemicals into the river causing injury to the Ps based on negligence, strict liability, nuisance, and trespass. Issue: 1) Whether the emotional distress verdict below must be reversed. 2) Whether the nuisance verdict below must be reversed. Holding: 1) Yes 2) Yes. Rationale: There is a lack of evidence proving exposure of appellees to a dangerous or harmful agency and the record is devoid of evidence pointing to possible or future illness. Ct has never allowed or affirmed a claim of emotional distress based on a fear of contracting a disease or illness in the future, however reasonable. No evidence of any damage to the property except for the condition of the river and the resulting stigma. Evidence insufficient to constitute significant interference w the Fergusons’ use and enjoyment of their property.

j. Notes

i. Economic Welfare Analysis – nuisance cases present a reciprocal conflict

1. Ultimate Q: Which of the conflicting activities (mill’s right to pollute vs. Fergusons’ right to block pollution) should prevail?

2. Efficient result – the most valuable activity prevails

ii. Coase – private bargaining against a background of clear legal rules will produce the economically efficient result no matter who begins with the entitlement, provided there are no barriers to a voluntary transaction between the parties.

iii. Transaction Costs – costs of surmounting these barriers (can include costs of gathering info, making contact w other affected parties, conducting negotiations)

iv. Remedies

1. Cts typically “balance the equities” to determine if injunctive relief is justified in a nuisance case

2. Punitive damages may be awarded in pollution cases if the D’s conduct is sufficiently wrongful, but the size of the punitive damages award may be limited by statutory CL or constitutional doctrines.

II. Toxic Torts

a. Personal injury acitons based on exposure to subtances that present an unusually high risk to human health or the environment.

b. P’s must show:

i. That they were exposed to chemicals released by the Ds

ii. That those chemicals can cause the types of harm they suffered; and

iii. That the chemicals in fact did cause their harm

c. In re “Agent Orange” Product Liability Litigation (DC Eastern Dist NY 1985) Facts: Veterans of Vietnam war filed class action alleging that exposure to agent orange manufactured by the chemical company Ds had caused them various health problems. Assigned to Chief Judge Weinstein who brokered 180 million settlement (this limited each to collect $12,700 max). Therefore some opted out of class so they could collect more. Issue: Can these members opt out of brokered class action and bring separate suits? Holding: No Rationale: Failure to present credible evidence of a causal link between exposure to agent orange and the various diseases from which Ps are allegedly suffering. Ps inability to exclude other possible causes of their illnesses. NO POSSIBLE METHOD OF RECOVERY HERE bc they chose to opt out of class action.

III. The Interplay of Statutes and Common Law

a. Federal pollution laws impose substantive standards on polluting sources.

b. Compliance with statutory and regulatory standards, is not an automatic bar to a tort action.

c. Statutes may explicitly displace or explicitly allow concurrent operation of common law nuisance doctrine.

d. Often, environmental statutes are not entirely clear about the role nuisance may or may not continue to play.

e. AMERICAN ELECTRIC POWER COMPANY, INC. v. CONNECTICUT (SCOTUS 2011) Facts: 8 states, NYC, and 3 land conservation groups filed suit against 4 electric companies and TN Valley Authority, five entities that they claimed were the largest sources of greenhouse gases. They alleged that the utility companies are a public nuisance bc their carbon-dioxide emissions contributed to global warming. Issue: 1) Can states and private parties seek to curb emissions on utilities for their alleged contribution to global climate change? 2) Can a cause of action to reduce CO2 emissions be implied under federal CL? Holding: No and No. Rationale: The CAA and the EPA displace any federal common-law right to seek abatement of CO2 emissions from power plants. Until and unless the EPA acts inappropriately or errs (e.g. when it finally issues its mandated regulations in 2012), the EPA (and the equivalent agencies at the state and local level, to the extent allowed under the law) is responsible—not the courts—for overseeing and enforcing any regulations or changes to the regulations regarding climate change. Federal courts could resolve the issue of curtailing greenhouse gas emissions, the imminent release of EPA regulations designed to implement Congressionally enacted legislation would displace the court’s opinion