Environmental Law – Lyndon 2013
Ecological injury has several recurring features that render its redress through law especially difficult:
1. Irreversible, Catastrophic, and Continuing Injury
2. Physically Distant Injury
3. Temporally Distant Injury
4. Uncertainty and Risk
5. Multiple Causes
6. Noneconomic, Nonhuman Character
The precautionary principle: if an action or policy has a suspected risk of causing harm to the public or to the environment, in the absence of scientific consensus that the action or policy is harmful, the burden of proof that it is not harmful falls on those taking the action.
Psychological harm: should there be a cause of action for psychological harm related to environmental law, such as resultant fear from exposure to chemicals of unknown toxicity?
1. Natural systems are open and continuously changing, they are not in equilibrium.
2. Linkages are extensive in the landscape.
3. Indirect effects can be significant as direct effects in natural systems.
4. Organisms not only adapt to the environment, they modify it.
Economics and Policy Tools
Pareto efficiency: An allocation is Pareto-efficient if any change in allocation would reduce at least one person’s preference satisfaction.
Pareto superior: A change that makes at least one person better off and no one worse off (because the winners compensate the losers).
Kaldor-Hicks efficiency: An allocation decision where the aggregate gains in preference satisfaction exceed the aggregate losses. A change that imposes heavy losses on a small number of people will nonetheless be efficient if it provides a very small benefit to a large number of people.
Coase theorem: describes the economic efficiency of an economic allocation or outcome in the presence of externalities. The theorem states that if trade in an externality is possible and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights.
For highest efficiency: buyers and sellers must have full information about all relevant characteristics of the goods or services exchanged, there must a large number of buyers and sellers (so that there is no collusion or monopoly power), there must be no externalities (costs or benefits to transaction that are not paid or realized by participants), there must be well-defined and enforceable property rights to the resources traded, transaction costs must be low to allow mutually beneficial transactions to occur.
Tragedy of the Commons: Each person is locked into a system that compels him to increase his herd without limit, in a world that is limited. Ruin is the destination towards which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.
Solutions to the Tragedy:
Mutual Coercion Mutually Agreed Upon.
1. Command-and-control regulation.
2. Privatizing the commons.
3. Economic incentives.
Assuming that the proper goal of regulation is the correction of a market failure, the achievement of efficient distribution of resources in the absence of an ideal market. Cost-benefit analysis provides (in theory) an objective mechanism for determining whether a proposed regulation is efficient. “Except in extreme cases, the result of a cost-benefit analysis often turns on a series of discretionary judgments; competent, reasonable analysts can come up with quite different but equally defensible answers.” Contingent valuation, Hedonic pricing, Discount rate.
Costs and burdens.
1. Assurance of meeting environmental goals.
3. Environmental equity and justice.
4. Cost-effectiveness and fairness.
5. Demands on government.
7. Technology innovation and diffusion.
Product bans and limitations.
Ecological versus economic.
Land based ethic: “A system of conservation based solely on economic self-interest is hopelessly lopsided. It tends to ignore, and thus eventually to eliminate, many elements in the land community that lack commercial value, but that are (as far as we know) essential to its healthy functioning.”
Anthropocentric: “I reject the proposition that we ought to respect the 'balance of nature' or to 'preserve the environment' unless the reason for doing so, express or implied, is the benefit of man. I reject the idea that there is a 'right' or 'morally correct' state of nature to which we should return. The word 'nature' has no normative connotation…. We should divert our productive capacities from the production of existing goods and services to the production of a cleaner, quieter, moral pastoral nation up to– and no further than– the point at which we value more highly the next washing machine or hospital that we would have to do without than we value the next unit of environmental improvement that the diverted resources would create.”
Failings of economic approaches: “The things we cherish, admire, or respect are not always the things we are willing to pay for. Indeed they may be cheapened by being associated with money. It is far to say that the worth of the things we love is better measured by our unwillingness to pay for them. Consider love itself. A civilized person may climb the
4. Causal relationship between breach and harm.
Liability for damages caused to persons or property by abnormally dangerous activities, without showing of fault.
Factors for finding that activity is abnormal:
1. Whether activity poses a high degree of risk of some harm to people, land,or personal property.
2. Likelihood of grave harm.
3. Whether risk can be eliminated by the exercise of reasonable care.
4. Whether activity is common or not.
5. Whether it is appropriate to the place where it is carried on;
6. Extent to which is value to the community is outweighed by the danger it poses.
Justifications: internalization of costs, spreading the cost of devastating individual costs to a large group, avoiding unfairness by imposing costs on the person who benefits from the injurious activity, deterring highly dangerous activities, reducing administrative costs of proving negligence.
Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.
• “The baseline common law regime of tort liability is negligence. When it is a workable regime, because the hazards of an activity can be avoided by being careful (which is to say, nonnegligent), there is no need to switch to strict liability. Sometimes, however, a particular type of accident cannot be prevented by taking care but can be avoided, or its consequences minimized, by shifting the activity in which the accident occurs to another locale, where the risk or harm of an accident will be less…, or by reducing the scale of the activity in order to minimize the number of accidents caused by it…. By making the actor strictly liable—by denying him in other words an excuse based on his inability to avoid accidents by being more careful—we give him an incentive, missing in a negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps to the vanishing point) the activity giving rise to the accident… The greater the risk of an accident…and the costs of an accident if one occurs…, the more we want the actor to consider the possibility of making accident-reducing activity changes; the stronger, therefore, is the case for strict liability.”