Environmental Law Outline

Environmental Law Outline
Fall 2009 Infelise
 
 
I.                    Introduction and Perspectives
a.       Environmental law is concerned with impacts on the natural environment
                                                               i.      Although some environmental laws are concerned about human health effects, the laws are concerned only about human health effects resulting from impacts on the natural environment
                                                              ii.      common denominator for environmental law is ecological injury
b.       Features of ecological injury that render its redress through law especially difficult – Lazarus (p. 3)
                                                               i.      Irreversible, catastrophic, and continuing injury
1.       continuing nature Þ harm is dynamic, not static, e.g., an oil spill addressed quickly may be confined to manageable dimensions, but if not quickly addressed, may rapidly and exponentially increase in scope to overwhelming dimensions
                                                              ii.      Physically distant injury
1.       often not physically confineable, so actions in one location may have adverse effects in very distant locations
                                                            iii.      Temporally distant injury
1.       Harm is often not imminent, and may be realized only in the distant future
                                                            iv.      Uncertainty and risk
1.       Inability to know beforehand the environmental impact of certain actions, and to apprehend, after the fact, what precisely caused certain environmental impacts
2.       Thus environmental laws that seek to prevent harm are directed at risk rather than actual impact, and that environmental laws that seek to assign responsibility for harm that has already occurred are limited in their ability to do so
3.       Also unclear what preventive measures will be effective to deal with the problem
                                                             v.      Noneconomic, nonhuman character
1.       not readily susceptible to monetary valuation and may be unconnected to any human injury
c.        Precautionary principle—Principle 15 of the 1992 Rio Declaration on Environment and Development stated, “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (p. 6)
                                                               i.      Shifts the burden of proof from regulators to the proponents of environmentally risky activities
                                                              ii.      The question of who should bear the burden of proof in environmental decisions depends on the relative values you assign to economic activity and the environment
d.       Insights from Ecology – Meyer (p. 7)
                                                               i.      Classical paradigm of ecology: ideal ecosystem is either at equilibrium, stable, or moving toward stability
                                                              ii.      Contemporary paradigm recognizes that ecosystems are open and continuously changing
1.       not necessarily at equilibrium
2.       disturbance is a natural and necessary part of the process
                                                            iii.      Some things do not have substitutes
                                                            iv.      Linkages are extensive in the landscape
1.       Activities in one part of the landscape greatly influence other parts
                                                             v.      Indirect effects can be as significant as direct effects in natural systems
                                                            vi.      Organisms not only adapt to the environment, they modify it
                                                          vii.      Key concepts from “old ecology”
1.       Interconnectedness—lots of interconnections in the ecological landscape, not all obvious
2.       Complexity—ecosystems are complicated and poorly understood
3.       Importance of scale—disturbance on a small scale may be an integral part of ecosystem function, the same disturbance on a larger scale may drastically alter the system
e.        Insights from Economics
                                                               i.      Standard tool to resolve problems of allocating scare resources among conflicting demands
                                                              ii.      Efficient allocation maximizes individual preference satisfaction, aggregated across society
1.       Most stringent definition of efficiency is “Pareto efficiency,” where any change in that allocation would reduce at least one person’s preference satisfaction
2.       the market achieves levels of efficiency that would be very difficult to duplicate by central government regulation because individuals, who know their own preferences best, make the key decisions
                                                            iii.      Things needed for a market to allocate resources efficiently:
1.       Full information about all relevant characteristics of the goods or services exchanged
2.       No collusion or monopoly power, i.e., large numbers of buyers and sellers in the market
3.       No externalities- no costs or benefits of the transaction that are not paid or realized by the participants
a.       Internalize all costs and benefits
4.       Well-defined and enforceable property rights to the resources being traded
a.       But who owns the air?
5.       Low transaction costs to allow mutually beneficial transactions to occur
                                                            iv.      But markets are imperfect
1.       Tragedy of the commons
a.       consequence of market failure
b.       b/c people can externalize a portion of the costs of their use, while internalizing the full benefits, each person has an incentive to overuse the resource
c.        e.g., fishing in oceans, polluting the air
                                                             v.      Ways to correct market failure problems
1.       Command-and-control regulation
a.       Government can step in to create enforceable standards for use of or access to the commons
                                                                                                                                       i.      In the pollution context, the government sets standards for allowable emissions
b.       Predominant strategy employed by our current environmental system
c.        In other words, government tells people what they may and may not do
                                                                                                                                       i.      Substitutes for a market
                                                                                                                                      ii.      But can result in inefficient outcomes
1.       Government could be wrong in judging preferences
2.       Privatization
a.       Property owners who realize both the costs and the benefits associated with caring for and exploiting resources have incentives to use those resources efficiently
b.       Eliminates perverse incentive to over-exploit resources
c.        Some resources are more easily privatized than others
                                                                                                                                       i.      easy to privatize a pasture
                                                                                                                                      ii.      hard to privatize air
3.       Economic incentives and fines
a.       Negative incentives
                                                                                                                                       i.      Fines, taxes, and fees
                                                                                                                                      ii.      Forces producers of environmental costs to internalize those costs in their decisions
b.       Positive incentives
                                                                                                                                       i.      Subsidies
                                                                                                                                      ii.      Help producer of environmental benefits internalize the value of those benefits
c.        Leave the choice up to the individual but change the background in which the choice is made
d.       Less coercive than regulation
e.        e.g., raise the price of entry into parks – less people will go
                                                            vi.      Cost-benefit analysis
1.       Cost-benefit analysis provides, in theory, an objective mechanism for determining whether a proposed regulation is efficient
2.       Kaldor-Hicks efficiency
a.       Satisfied when the aggregate gains in preference satisfaction exceed the aggregate losses
b.       Less stringent than Pareto Efficiency criterion
c.        Cost-benefit analysis tests for KH efficiency by comparing the total societal costs of a policy with the total society benefits
3.       Cost-benefit analysis is straightforward and non-controversial when both costs and benefits are readily measured in dollars, but in the environmental context, many costs and benefits are not readily monetized
4.       Federal agencies have been required by executive order to prepare cost-benefit analyses before putting regulations into effect (since Reagan Administration)
a.       But some laws forbid the consideration of costs
                                                                                                                                       i.      If the statute forbids consideration of costs, the agency must prepare a cost-benefit analysis but may not base its regulatory decision on that analysis
                                                                                                                                      ii.      e.g., Clean Air Act
f.        Ecologist v. Economist
                                                               i.      Environmental protection regulation implicates a fundamental clash of deeply held values
1.       Ecologists view humans as members of a broader ecological community, so ethically humans should respect their other community members and the community itself
a.       don’t ignore elements of the community that lack commercial value
2.       Economists believe that we should respect the “balance of nature” or “preserve the environment” only to the extent that it benefits man
                                                              ii.      Key points
1.       No one discipline has the answer for environmental issues
a.       disciplines include political science, economics, biology, etc.
2.       Shouldn’t turn over environmental issues to a single discipline
3.       Environment problems are profound political problems
a.       Nothing happens if you don’t get the law through Congress
b.       Also environmental justice issues
g.        Environmental Justice
                                                               i.      Def: Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies
1.       meaningful involvement does not necessarily mean successful involvement
                                                              ii.      environmental hazards and access to environmental benefits are not evenly distributed
1.       racial minorities are disproportionately likely to live near hazardous waste facilities
2.       racial and cultural minorities are sometimes forgotten when general standards are set to control environmental risk
a.       e.g., in setting standards for acceptable amounts of toxins in water, state and federal agencies make certain assumptions about the amount of contaminated fish people are likely to consume, but Native Americans consume relatively larger quantities of fish
                                                            iii.      Why built near poor communities?
1.       Zoning
2.       Residents have less political clout, so they are less likely to be able to block the proposed facility
3.       Property values are lower, so cheaper to obtain the land
                                                            iv.      Is there anything inherently wrong with buying the cheapest land to build a facility? No
1.       The environmental justice problem, i.e., the site-ing decision to build near a poor community, is a symptom of classism, not a cause
                                                             v.      Is there anything inherently wrong with picking a location where the community cannot effectively organize to oppose the facility? Yes
1.       Makes sense economically
2.       But unjust by exploiting the powerlessness of the poor community
                                                            vi.      Suggested solutions
1.       Economic compensation for the poor residents near the facility
2.       Require the city to construct public facilities, like hospitals, in the community
 
 
Environmental Common Law
 
II.                  Common Law Environmental Doctrines
a.       With regard to law to apply, Supreme Court has held that the law of the state of discharge applies
b.       Nuisance
                                                               i.      Overview
1.       Potentially covers pollution of air, water, or land by almost any route
2.       Protects the right to use and enjoyment of land
3.       If you don’t have a property interest, you can’t bring a nuisance cause of action
4.       Typically do not have to show that the act was intentional
5.       Most common action
                                                              ii.      Remedies
1.       Injunctive relief
a.       courts typically “balance the equities” to determine if injunctive relief is justified, because the polluters may performing valuable economic activities
2.       compensatory damages
c.        Private Nuisance
                                                               i.      Def: private nuisance—an unreasonable and substantial interference with the use and enjoyment of land
1.        “unreasonable” = gravity of the harm outweighs the utility of the conduct, or the harm is serious and the economic burden of compensation would not make the conduct infeasible
a.       balancing test
b.       “test of unreasonableness is ‘essentially a weighing process, involving a comparative evaluation of conflicting interests in various situations according to objective legal standards’” (Walsh v. Town of Stonington Water Pollution Control Authority(SC Conn., 1999, p. 54)
2.       “unreasonableness” factors
a.       extent and character of the harm
b.       social value of the plaintiff’s use of land and defendant’s conduct
c.        suitability of each to the character of the locality
d.       burden on plaintiff and defendant, respectively, of avoiding the harm
                                                              ii.      Liability for acts that are either:
1.       Intentional and unreasonable
a.       Intentional = knowingly