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Environmental Law
Temple University School of Law
Anderson, Mark F.

Environmental Law

ENVIRONMENTAL VALUES & POLICIES

Economic Perspective
–          Market systems generate pollution because many natural inputs, such as air and water, into the production of goods are “underpriced”
–          Because no one owns the air and water, they are free to use and, in the absence of governmental regulation, businesses will use them freely, passing off the external costs to others
–          The absence of governmental regulation creates a “free-access problem”
–          Under the free-access problem, where resources are commonly held, people will overexploit these resources when weighing private benefit against the public interest.
–          The free-access problem is demonstrated by the “tragedy of the commons”
–          Some solutions to the free access problem include:
a.       Allow companies to purchase “allowances,” which would permit them to emit a certain amount
b.      Establish quotas (limit the amount of fish caught, pollutants released, etc.)
–          “Free market environmentalists” have proposed the following private alternatives to government regulations:
a.       Make public goods private ones, thereby making it in the owner’s best interest to use the resource efficiently
b.      Deregulate public goods, but allow parties injured by the externalities to sue the polluter
–          Such private remedies to degradation run into what is known as the “public goods problem”
–          The public goods problem contain two aspects:
a.       Free riding
b.      Transaction costs
c.       Proving causation
–          Free riding occurs when several parties are affected but each is counting on the other to intervene because they don’t want to incur the costs
–          Second, there are transaction costs to filing a lawsuit and there is no guarantee that the party will be compensated
–          Third, it is often difficult to prove that the polluter caused the injury sustained
–          When measuring externalities, in order to test whether any proposed governmental policy actually improves overall welfare, the policy should be subjected to a “cost-benefit analysis”
–          A cost-benefit analysis seeks to compare the social benefit of a policy to its opportunity costs
–          The opportunity costs of a policy include:
a.       The costs of developing or manufacturing an alternative
b.      Implementing the policy
c.       the nature and effects of the proposed alternative
–          Social benefits may include:
a.       Health benefits
b.      Lives saved
c.       The conservation of a resource or ecosystem

The Ecological Perspective


SOURCES OF ENVIRONMENTAL LAW

Common Law
Madison v. Ducktown Sulfur
Missouri v. Illinois
Georgia v. Tennesee Copper
–          Prior to the explosion of environmental legislation in the 1970s. the common law was the primary vehicle for responding to environmental problems
–          The overarching question in these cases was how to harmonize conflicts that inevitably occur when human activity interferes with others in the quality of their physical surroundings
–          The common law relied largely on nuisance law doctrines to resolve environmental controversies
–          There are two types of nuisance laws:
a.       Private
b.      Public
–          The Restatement of Torts defines private nuisance as:
a.      a nontrespassory invasion of another’s interest in the private use and enjoyment of land
–          To constitute a private nuisance the invasion of property rights must be either:
a.       intentional and unreasonable or
b.      unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct
–          “Intentional” is ultimately determined by foreseeability
–          For example, pollution of groundwater is deemed to be less foreseeable than pollution of surface water
–          Discharges to lakes and streams are therefore typically held to be intentional, because they are almost certain to cause an invasion
–          In Aldred’s Case, a pig sty was held to be a private nuisance because the stench that it generated interfered with Aldred’s enjoyment of his property
–          This case established that if a nontrespassory invasion of property rights was sufficiently great, air pollution was actionable as a private nuisance
–          The principle espoused is that no one has the right to use their property in a manner that causes harm to another; A.K.A the sic utere principle
–          Early nuisance law such as this performed a kind of zoning function by encouraging noxious activities to move away from polluted areas
–          But as the Industrial Revolution progressed, environmental insults became more difficult to avoid simply by relocating them
–          Thus, courts began to temper private nuisance doctrine by increasing the severity of harm required and by adjusting notions of reasonableness
–          Judges observed that one was not entitled to pollution-free air, but to air not rendered incompatible with the physical comfort of hu

air pollution by the company was unreciprocated

Regulation
–          There are four institutional mechanisms that may be used to control environmental risk:
a.       Market forces
b.      Governmental regulation
c.       Liability
d.      Social insurance
–          When consumers are well-informed and free to choose, market forces can generate pressure to stop practices that cause environmental damages
–          For instance, a boycott of tuna succeeded when major seafood processors announced that they would no longer purchase tuna that had been captured using practices that cause harm to dolphins
–          To attract environmentally friendly consumers, firms which purchase only dolphin-safe tuna began labeling their products as “dolphin-safe”
–          But monitoring compliance with corporate pledges of voluntary action can be difficult when highly visible practices are not involved
–          Therefore, government sponsored programs, such as labeling regulations, establish standards which must be followed before a product is labeled environmentally friendly
–          Governmental regulation is undertaken in response to a perception that a problem exists that requires a collective response
–          Once it has bee determined that a problem deserves some form of collective action, three important issues must be confronted:
a.       What entity or conduct should be targeted for regulation?
b.      What is the basis or reason for the regulation?
c.       What form of regulation should be employed?
–          Environmental statutes generally define what activities, products, pollutants or entities can be regulated:
a.       Pollutants: Virtually all damaging residuals from industrial, commercial, and some domestic activities fall within the jurisdiction of some environmental statute.
b.      Industrial Facilities: Federal regulation of industrial facilities is perhaps the easiest form of regulation to enforce because the regulation of a few facilities can regulate the emission of large amounts of pollutants