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

I.   Introduction
–        ANWR: Arctic National Wildlife Refuge, Northern Slope, on Prudhoe Bay: Drill? CBA
o   For: Less volatility, improve national security (but enough to offset destroying ANWR?); get oil (enough to make it worth it?); improved lifestyle for natives – education, jobs, etc.
o   Against: Not enough oil to make it worth it; reduce incentives to find alternates; U.S. strategy shifting away from oil; effect on wildlife; effect on people, natives – do they have special claim to maintain lifestyle?; loss of natural area, recreation
Tragedy of the Commons
–        Degradation of air, water, common lands
o   There is a point where the commons reaches its maximum sustainable use
§ If one person adds to the commons they will often reap the benefit and the cost is shared by everyone else (individually rational but collectively destructive)
o   How do we solve the tragedy?
§ Regulate at maximum sustainable yield and distribute accordingly: Make certain rights tradeable
§ Contractual Cooperation: Agree not to overuse the resources (tough for market economy, society – has worked in native fishing villages w/ no outside market)
§ Allocation/Division of Land: But then it’s no longer “the commons”
·         How do you divide some resources – air, water
§ Control Access: Like our national park systems
o   E.g., fisheries – 200-mile international zone; boats can sail, but you can halt fishing, rebuild fish populations; up 12 miles is territorial zone – you can defend
§ Nations have to decide how to handle commercial enterprise in international zone
·         U.S. has maritime councils of scientists, politicians, fishing industry: Allocate quotas to fishers, bad for fishermen
§ Beyond 200 miles – open season – any method (giant nets sweeping up the ocean); need international pacts – like the whaling pact in current events
–        Externalities: Putting things into air, water is also a commons issue
o   Driving car = spreads pollution burden to everyone; create driving rights – license plate number ends in odd/even, drive certain days
o   Property rights would internalize the externalities: How to do it for air, water, etc.?
§ We all benefit from no internalized costs, e.g. steel: Output is steel, pollution – paying to control pushes cost higher – control devices, electricity
§ Externalizing incentivized to make more $
–        Fighting externalities:
o   Common law suit; nuisance suit; trespass suit
§ Have limitations, problems: Free riders, transaction costs, causation issues, small recovery so no incentive to sue (not cost-free to get plant to stop polluting; damages might be low for one person – no incentive to sue)
o   Government intervention: How much pollution should be allowed? Should they just pay for what they pollute? How much is that? How to measure? (crop damage, aesthetics, health problems, value of animals killed)
Cost-benefit analysis
–        ID problem: Stop if it makes economic sense
o   ID options – do nothing, do a bit, total bar
o   What are net benefits for each option?
§ Can classify as variable, assign arbitrary value, list as a range
§ Some are hard to define – life, cognition, environment
–        (Page 31) Lead in gasoline since 1920s: Raised octane cheaply, cut knocking
o   Raised lead levels in children – not good; in 1975, catalytic converters required, which didn’t mix w/ lead – misfueling cars began – not good
o   Options – no change, low-lead, no-lead
§ Lead damaged engines – even w/o health benefits it made sense to get rid of lead
o   Cost-benefit justified: Net benefits far exceed costs, later discovered other benefits – blood pressure affected by lead – each 1 microgram reduction in average blood lead yields net benefits of $17.2B
Tough valuations – life, cognition
–        Ways to value: What will people pay?; regulated price – $7M; market price – value of risky jobs; extrapolate from known values
–        How to value loss of cognition? Remedial education – $4K; value of an IQ point – $1,100
o   Estimate of remedial education ($4k/kid benefitted)
–        How to value human life: $5M to $7M?
o   For regulatory law, all lives are equally valued: No preference for babies over elderly
·         7M/70 years (average lifespan): Life worth $1K a year; should the 65 crowd be valued at $5K or full value?
o   OMB attempted to go to life/year – Congress rejected – old votes
·         Another way to consider – productivity – peaks at 20s-60s, down after that; should the value of the life depreciate based on age?
o   Say cost of risk is $7K for 1 in 1,000 risk: What would cost of risk of 1,000 in 1,000 be? $7M – that’s what the life is worth
o   Extrapolate from known risks: If regulation saves 1,000 lives, measure saves $7B annually
–        Lives valued at different levels at different agencies: EPA says $7M – huge possible benefit
o   If something saves 1K lives, that’s $7B in benefit – program can cost a ton under CBA analysis
–        Not a lot of other things that have a quantified value – human life, therefore, important in CBA
o   If Program X saves 10 lives but Program Y saves 1,000 – for same $ – save lives efficiently – even the government likes efficiency
–        Value of the ecosystem? $33T estimate
–        Nonfatal cancer: See arsenic, below
–        In 1989, EPA banned all asbestos under Toxic Substance Control Act Section 6: No more manufacture, importation, processing, distribution because of unreasonable risks presented to human health by exposure to asbestos
o   Section 6: Gives EPA power to limit, prohibit a chemical’s use if there is unreasonable risk to human health or the environment
o   CBA analysis: Probability that harm will occur vs. potential harm to society from removal of product benefits
§ EPA’s math came out as worth it
Corrosion Proof Fittings v. EPA (5th Cir. 1991): Page 235 – Under TSCA the EPA must use the least burdensome regulations to prevent unreasonable risks – maybe not the case here, calculations not done; total ban is tough to do – even on deadly asbestos – have to stay w/in controlling statute
–        Was EPA’s CBA sufficient under the TSCA to show that the least-burdensome method to achieve goal of minimum reasonable risk was a total ban of asbestos?
–        Section 6: Regulates “an unreasonable risk of injury to health or the environment,” means must protect adequately against such risk using “least burdensome requirements.”
o   94 percent ban, some excepted uses; regulation challenged
–        Least Burdensome and Reasonable: Use of TSCA OK, but analysis was bad
–        Problems w/ EPA’s determinations:
o   Cost/life from total ban too great – $74M/life saved; when total numbers disaggregated, it’s worse – $200M-$300M to save seven lives over 13 years: NOT REASONABLE
§ Total cost/total benefit vs. marginal cost/marginal benefit: Should court look at the marginal costs or stick to total?
§ Court breaks down costs because much of the life-saving came from one group of products, but the costs were more evenly spread.
o   Replacements were a problem – they could be as toxic – known alternatives needed testing
§ Where no replacement existed, could get waiver – but in limited circumstances
o   No middle-option explored – just total ban; what about labeling (EPA said no one agency could do it – joint operations allowed)
o   Bad calculations: Discounted costs, not benefits – keep it apples to apples
§ No cost/benefit projections beyond 2000 – double counted costs of asbestos use, now tries to say lives saved past 2000 justify cost.
·         Cost discount – When doing CBA, say total is $5M, but it’s not – money spent in Y2, Y3, etc., is discounted – total might be $4.5M when discounted
·         Discount rate: Value used determines future benefit, costs; government uses 3 percent more today than a higher, more aggressive figure
o   At 7 percent: today life worth $5M; 23.5 years – $1M; 100 years – $5K; 500 years – nothing
o   At 3 percent: today life worth $5M; 23.5 years – $2.5M; 100 years – $260K; 500 years – $1.91
·         W/ a long-term problem, not worth doing anything at 7 percent – life is of such little value in today’s dollars; even at 3 percent, little incentive to look long-term
§ W/ latency period like asbestos, numbers might not reflect the CBA of spending: throw in unquantifiable things – peace of mind – to balance out the sides
Safe Drinking Water Act, Lead, Arsenic
–        (Page 249) EPA gets power to limit contaminants in public drinking water systems that have at least 15 service connections or regularly serve at least 25 individuals – states are the primary enforcers
o   Three-step process that EPA must complete:
§ Maximum contaminant level goals (MCLGs): Level w/o known/anticipated health effects, w/ adequate margin of safety
§ Maximum contaminant level (MCL): As close “as is feasible” to the MCLGs for actual regulation using best technology available – cost a consideration
§ Then, that’s the standard: Get reviewed every five years
o   Requires published list of contaminants not subject to regulation that are known to occur in public water systems, every 5 years, EPA must consider regulating at least 5 on list
–        Lead: MCLG of zero set in 1991; removal of lead pipes could costs tens of billions; EPA didn’t set MCL for lead, said Congress didn’t foresee corrosion problem/cost; dealing w/ lead could create new problems w/ other chemicals
o   “Treatment technique” approach used: Requires water suppliers to employ corrosion-control measures if more than 10 percent of water samples exceed 15 ppb lead at the tap; if that fails, water suppliers may have to replace lead service lines
o   Nonaction attacked: Groups said SDWA requires action if something could be measured
§ EPA: Feasible = “capable of being accomplished in a manner consistent with the Act,” technology based, not putting anyone out of business and raising other contaminants to cut lead wouldn’t work – court agreed
–        Cheaper options: New York found cheaper option than filtration system was buying open space, strict controls on land use – alternatives such as that have to have EPA’s OK
–        Variances: Allow EPA to OK smaller systems if they can’t afford compliance but otherwise comply w/ “treatment technology, treatment techniques or other means” that EPA finds “ensure adequate protection of human health”
o   Pre-1986 MCLs and MCLs for microbial contamination excluded from variance provisions
–        Arsenic: Human carcinogen, not clear at what level; causes other issues
o   WHO standard is 10 ppb: Even at 10 ppb, skin cancer risks estimated at 6 in 10K
o   In U.S., it was 50 ppb; proposed to be 10 ppb; Bush administration put 10 ppb on hold for short time, did some studying and then went w/ 10 ppb
§ 97 percent of water systems in U.S. have to do nothing – they get water from surface
§ Comes from well water, rocks – the 3 percent have to bear the cost
·         EPA noted 3 ppb lowest feasible level, but yields bad CBA result
o   Why 10 ppb?: As much as they could do w/ achieving costs equivalent to benefits
§ Risks of cancer w/ 10 ppb: 1 in 500 (cancer risk chart – page 257)
·         Double the protection of 5 ppb only reduces risk to 1 in 1,000
·         U.S. went on record in CAA to say that 1 in 1M could still warrant additional controls
§ Why 1 in 500 OK?: High cost for relatively little gains to go lower

son v. Ducktown Sulphur (Tenn. 1904): Where rights conflict, court must make best arrangement to allow each the largest measure of liberty possible under the circumstances.
–        Landowners sued for damages and injunction against sulfur company to halt operation of smelters, claiming that the SO2 from it was destroying their farms
–        Court finds no injunction available, but awards damages – it was a nuisance; allows sort of private eminent domain
o   CBA of company’s value w/ landowners: $2M vs. $1K (fair-market value of farms is $1K, current value is $0) – worst damages could be is $1K
§ Court doesn’t care about landowners’ ties, history, personal value – not a K case
§ Plant was operating lawfully, couldn’t be moved, employed everyone, huge benefit – reasonable activity, BUT landowners shouldn’t suffer burden w/o compensation
–        Decision against company could have been technology forcing, but Ds said they spent $200K looking for other options, but nothing was available; Injunction would mean they could negotiate
–        Trespass theory: No need for harm, doesn’t have to be unreasonable
o   Martin v. Reynolds Metals Co. (Ore. 1959): $91,500 damages OK’d due to fluoride emissions from aluminum plant that poisoned cattle; particles constituted trespass because they invaded property owner’s interest in exclusive possession.
§ Ps pursued trespass over nuisance because statute of limitations favored it
Public Nuisance: An unreasonable interference w/ a right common to the general public
–        Only unreasonable invasions of rights actionable – what’s unreasonable? Courts consider if conduct:
o   1) involves significant interference w/ public health, safety, comfort or convenience;
o   2) is illegal;
o   3) is of a continuing nature or has produced a long-lasting effect on the public right that the actor has reason to know will be significant
–        Private parties may bring public nuisance suits if they can show nuisance has harmed them in a manner not shared w/ general public – special injury requirement
o   Special injury requirement: From ancient notion that private parties shouldn’t be able to vindicate rights of the sovereign, desire to prevent a multitude of suits to redress same issue
o   BUT the broader the injury to the community, more P’s injury resembles injury suffered by others, less likely P can bring public nuisance suit
Georgia v. Tennessee Copper (1907): States aren’t treated as citizens, they have the right to demand quasi-sovereignty over air, land in their state from out-of-state folks.
–        States aren’t treated like average citizens, they’re quasi-sovereign – has interest in air, land in state; not required to give up sovereignty for pay
o   Tennessee doesn’t care, it’s getting benefit – Georgia does, SO2 killing forests, etc.
–        Case disappeared until Massachusetts v. EPA last year
–        Court doesn’t analyze this case based on the balancing of values – look at Georgia’s status as a state
o   But it would matter if Georgia had copper smelting in its own state – injunction is equitable remedy and requires P to come w/ clean hands
§ Compare to Missouri – it was dumping stuff in river too
–        Difference here vs. Missouri: Causation is clear, meets Missouri standard; Georgia not dousing itself w/ sulfuric acid
–        Court could grant full, limited injunction: Spectrum from 100 percent reduction to 0 percent
o   Companies settled by limiting operations to certain periods (See Notes 6, 7)
o   Limited dilution as solution to pollution under Constitution – funny
–        Georgia opens itself up to border suits w/ win here – what’s it doing that others don’t like?
–        Scotus no longer establishes emissions limits in federal common-law nuisance actions
o   New York v. New Jersey (1921): Court advises cooperation, conference, concession to settle issue – cooperation probably better serve everyone
–        Illinois v. City of Milwaukee (1972): Court says federal district courts proper forum for hearing nuisance action by Illinois charging four Wisconsin cities w/ polluting Lake Michigan, not high court under original jurisdiction
o   Soon after, federal statutes led court to slam door on most federal common-law actions
Missouri v. Illinois (1906): Causation needs to be clear AND the affected state cannot demand that the source state adhere to a higher standard than the affected state applies to its own citizens – clean hands
–        Chicago reverses flow of river, sewage in water: St. Louis notices, typhoid deaths increase.
St. Lo