I. BASIC THEMES IN ENVIRONMENTALISM
The Environmental Prospective
Nature Capital: resources and services provided for free or far below true market value, without which the marketplace and human life would be impossible
Laws can prohibit directly and indirectly some forms of environmental carnage, as with attempts to protect endangered species.
This is not easy to do: finding laws capable of effecting larger behavioral changes, such as reducing global emissions of greenhouse gases produced by fossil fuel consumption and deforestation, are problematic.
All global environmental degradation can be traced back to three major human phenomena:
1. Population (most devastating)
2. Unwise consumption of resources
3. Pollution (the first two are too hard, so governments focus on pollution, the least important of the three)
Modern environmentalism seeks to implement the concept of sustainability as its societal goal.
Thoughtfulness, planning, and luck will enable successive future generations to sustain and improve the quality of life
Ecosystem Services Market: the currency is changing. Now things from the ecosystem have been monetized and traded for other goods, etc.
Neo-classical economists: this is the older way of thinking. It asks, why should we pay anything at all for ecosystem services?
There is an economic equation for exploiting natural resources
Labor, machinery, rent, or royalty costs
No payment for ecosystem services lost
Environmentalists: who will evaluate? Who measures? Who will value the service?
Environmental Economists: how much are we willing to pay? Where does the payment go?
Three Economies: since the human marketplace economy generates virtually all environmental problems, environmental law is understoof as a comprehensive attempt to control and guide the dynamics of the marketplace economy on behalf of the other two economies
1. The traditional Marketplace Economy
2. The Civic-Societal Economy: comprises actual social costs, benefits, resources, energy, inputs, outputs, qualities and consequences that are not accounted for in the marketplace, but impact human society.
3. The Economy of Nature
II. CROSS-CUTTING THEMES IN ENVIRONMENTAL LAW
Decades of Environmental Law Development
The modern Statutory Array in the Years Since Kepone
Federal Statutes: most of these have state and local counterpart regulations
Clean Water Act: administered by EPA
Federal-state partnership where EPA sets permissible levels of discharge for different industrial categories based on the performance of best available technology.
Protects chemical, biological, and physical integrity of waters in the US
Prohibits discharges without a permit
Criminal prosecutions for violations of CWA and other laws, lying on pollution reports, and knowing endangerment can send an executive to jail
Clean Water Act § 404: the federal dredge and fill regulation program also falls under CWA, restricting the elimination of the wetlands
EPA and Corp of Engineers also require permits for installing in-stream structures like sewerage outfalls.
Clean Air Act: administered by EPA.
It has special provisions regulating hazardous air pollutants and holds new air pollution sources to cleanliness levels of best available technology.
The basic structure requires enforcement of state implementation plans (SIPs) to prevent ambient levels of pollution from exceeding federal “primary standards” set according to harm-based safety criteria.
FDCA: federal Food, Drug, and Cosmetics act administered by the EPA and the Department of Health and Human Services
EPCRA: federal Emergency Planning and Community Right-to-Know Act administered by EPA.
RCRA: federal Resource Conservation Recovery Act administered by EPA.
Update of the Solid Waste Disposal Act
Regulates waste disposal in general and certain hazardous wastes in particular, tracking the wastes (not the original chemicals) beginning with their generation and ending with their treatment, storage, or disposal.
Called “cradle to the grave” regulation
Authorizes EPA to take corrective actions to prevent or remedy contamination
Special provisions apply to leaking underground storage tanks and medical wastes.
CERCLA: the 1980 federal Comprehensive Environmental Response, Compensation, and Liability Act administered by EPA.
Provides for EPA investigations and supervised cleanups of hazardous contaminated sites, paid for by the parties who own or who contaminated the sites, with backup funding from a federal Superfund combining taxes from chemical production, penalties, and taxpayer dollars.
SDWA: Safe Drinking Water Act administered by EPA.
Sets water quality standards for drinking water supplies and protection of underground dinking water sources
Regulates the deep well injection of wastes
Deep Well Injection: common industrial practice of pumping chemicals into old wells and drill holes as a method of disposal
NEPA: National Environmental Policy Act administered by the President’s Council on Environmental Quality
It is a generic procedural statute
Significant, litigatable requirement that all federal agencies must prepare an environmental impact statement (EIS) before taking any major federal action significantly affecting the human environment.
ToSCA: federal Toxic Substance Control Act administered by EPA.
“Market access” regulation that authorizes EPA to require manufacturers to test chemical substances for hazards to human health and the environment before they are permitted to be manufactured and sold.
FIFRA: Federal Insecticide, Fungicide, and Rodenticide Act administered by EPA.
Requires persons distributing, selling, offering, or receiving any pesticide to register the poison with the EPA after testing for unreasonable risks to humans and the environment
Themes and Contexts
· Polluter-Pays Principle: Absorbing environmental costs is a responsibility of marketplace industries, not a cost to be absorbed by public subsidies paying for prevention and cleanup, nor by the unpaid subsidy of public toleration of pollution
· Precautionary Principle: taking early policy action to avoid uncertain or poorly understood risks, particularly in situations where the harm may be catastrophic
· Common Law and Public Law: the structures of the modern administrative state are built upon the flexible and evolving foundations of common law
III. THE COMMON L
Parties may be liable for the acts of the independent general contracts in spite of the general rule that one who hires an independent contract usually will not be vicariously liable for the contractor’s acts.
Three ways to get around a defendant hiding being an IC:
Unqualified: Claiming that the party was negligent in hiring that particular contractor.
Non-delegable duty: When subject matter of the actions of the IC is sufficiently important and risk-laden for the community, the court will term it a nondelegable duty and hold the hiring party vicariously liable for the failings of the IC.
Collusion: the party who hired the IC was cooperating in the performance of a wrongful act
Strict liability involves abnormally dangerous activities.
Brach v. Western Petroleum, Inc: Western built a pond into which it dumped wastewater from oil wells, knowing that the water in the pond would dissipate into the air and ground. The contaminated water killed 100 of branches chickens. Branch sued for strict liability. Should strict liability apply to Western for pollution to the Branches’ wells? The facts of the case support the application of strict liability because the ponding of toxic waters constitutes an abnormally dangerous and inappropriate use of the land. There is no common law right to pollute water.
Strict liability is useful if the activity is not foreseeable.
It appears Western did not initially foresee that the water would reach the wells.
The court rejects the importance of defendant’s actual foreknowledge of events.
Highly capitalized waster disposers should foresee whatever thorough testing would have revealed
Defendants should have known that liquids tend to percolate down to aquifers
The concept of a non-delegable duty applies in strict liability context as well.
Causation, and Joint and Several Liability in Conventional Environmental Tort Suits
Plaintiffs must prove that injuries suffered were caused by defendants’ tortious conduct.
Cause-in-Fact, Basic Doctrine
Cause-in-fact assures that the loss is being shifted to an appropriate party, i.e. the one whose act or omission is in some tangible way responsible for the injury.
It is based solely on facts, but it requires conjecture about what would have happened in the absence of the act or omission.
It seeks to establish a but-for relationship
But-for the defendant’s tortious conduct, the plaintiff’s injury would not have happened.
In many environmental cases, the cause-in-fact relationship is relatively easy to observe and prove.
When more than one cause of pollution is at work, matters become more complicated.