Environmental Law Outline

Infelise
Environmental Law
Fall 2015
 
Requirements for Judicial Resolution
Plaintiff is harmed in an obvious and legally-recognized manner
Alleged responsible party is identified and represented in the proceeding
A legally-recognized remedy is available
 
These requirements stand in the way of our courts’ abilities to deal with environmental issues, especially ones that don’t immediately harm someone (standing requirements are complicated)
Damages – Default of giving money in lawsuits can undermine environmental protection; no clear “market price” for environmental issues (e.g. damaged redwoods)
Remedies often fall short (money can’t replace the loss of redwoods)
Lesser-of rule: plaintiff recovers the lesser of the cost of repair, or the diminution in value (requires looking at the fair market value of the land if it had not been damaged, which is super hard to do)
US v. CB & I Constructors – defendant caused fire, jury awarded cost of fighting fire + $30 million for “intangible environmental damages;” remarkable 9th Circuit outcome
Requirements for Legislative Resolution
Consensus that a present problem exists
Consensus that the proposed course of action is likely to solve the problem
In the absence of this, Congress tends not to act
Proposed course of action must at least not be manifestly unpopular (or more realistically, must be really popular)
Popularity – one that doesn’t greatly interfere with the economics in the US (cost/benefit analysis)
Note also that most environmental problems are likely to most greatly impact the poor, who are often underrepresented in the legislature
Legislatures and courts almost always are reactive, even with respect to problems (such as environmental problems) requiring proactive strategies
Environmental Policy Perspectives
Characteristics of Ecological Injury – Lazarus (p. 3)
Physically distant injury
Irreversible, catastrophic and continuing
Temporally distant injury
Leads to lots of jurisdiction and standing problems – generally the further an injury is removed from the conduct creating liability, the more difficult it is to prove the cause and effect necessary for Ps to succeed
Uncertainty and risk
Multiple causes
Noneconomic, nonhuman character
Note – many environmental problems often disproportionately impact the poor, who are often underrepresented in the legislature
Insights from Economics
An “efficient” allocation maximizes individual preference satisfaction, aggregated across society
Pareto Efficiency
An allocation of resources regime in which it is impossible to make one more person better off without making at least one more person worse off
Perfect markets should achieve Pareto-efficient allocation of resources because transactions are voluntary
Kaldor-Hicks Efficiency
An outcome is more efficient if those made better off could, in theory at least, compensate those made worse off by the outcome
Aggregate gains exceed aggregate losses
Cost-Benefit Analysis
Tests for Kaldor-Hicks efficiency by comparing the total societal costs of a policy with the total societal benefits
Future costs and benefits are usually discounted to present value
Discounting is easy when talking about $$, but controversial when applied to non-monetary benefits such as years of life saved by restricting use of a toxic chemical (it’s difficult to assess future costs/benefits in the environmental context)
Market Shortcomings
Imperfections in the availability of information
Property rights
High transaction costs
Externalities
Tragedy of the Commons (Hardin, p. 12)
Pollution – the rational man finds that his share of the cost of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them
Solution – mutual coercion; mutual social arrangements that produce responsibility (think of taxes)
The Role of Values
Leopold piece (p. 23)
“Land ethic” – an ecological conscience, affirming the land’s right to continued existence
We should try to protect what’s esthetically and ethically right, and not focus on what’s economically right (w/ current system, “when one of these non-economic categories is threatened, and if we happen to love it, we invent subterfuges to give it economic importance”)
Baxter (p. 24)
“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”
“We should divert our productive capacities from the production of existing goods and services to the production of a cleaner, quieter, more 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.”
But my counter-argument—why do human preferences take priority over animal ones?
Sagoff (p. 25)
Criticizes cost-benefit analysis—“the things we cherish, admire, or respect are not always the things we are willing to pay for;” some things have a dignity rather than a price (example of Disney versus retaining undeveloped wilderness; public had no desire to visit that wilderness and would’ve visited it had Disney’s project gone through but still felt Disney’s actions were wrong)
Tarlock (p. 27)
Environmental law and management should derive from science, not ethics [would make environmental decisions more rational] Environmental Justice
EPA: Environmental justice “will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”
Many problems inherent in the environmental movement
Racial minorities in the US are disproportionately more likely