″ I. Environmental Law
″ A. Exam
• 1. old ones available online
″ 2. May ask us a ? about statutes (i.e., Sec. 301 of CWA to see definition of formula (?) and discuss it)
• a) pay attention to ones he specifically assigned on syllabus
″ B. Course Overview
• 1. Basic Concept (2.5 classes)
″ 2. Air Pollution (3.5 classes)
• a) to what extent do we want helath based rules?
• b) to what extent do we want technological rules?
• c) do we want tighter rules for new sources or old sources?
″ 3. What about using a trading system
• a) with clean air, more then anything else we’ve used it
• 4. Water Pollution (2 classes)
• 5. Hazardous Substances (3 classes)
• 6. Superfund
• 7. Endangered species
• 8. NEPA
• 9. Enforcement of all this stuff
• C. Look through course as what is the environmental problem and what was done about it?
″ D. Basic/Pervasive concepts
″ 1. Controls we use in EL
• a) Mostly pollution control law (w/ some exceptions)
″ b) Core ?s
• (1) how much protection do we want?
• (2) how do we want to go about getting it?
″ c) What are different ways we might do something about this?
″ (1) Most conventional approach:
• i) set limits on emission
″ ii) how do you regulate it?
″ (a) first set acceptable level (problem is there is no health effects to CO2)
• i) a level where nobody gets hurt
• (2) So, say you set it at 450 parts/million you then need to figure out how much pollutant can be put into atmosphere and still be under that #
″ d) Schemes
• (1) Cap and Trade
• (2) Ambient standards
• (3) Tax
″ (4) Straight forward emission limit
• i) gets rid of complexity that above schemes have
• ii) where do you set it in first place and how often do you change it
″ (5) Liability Based
• i) through Superfund
• ii) it is a global problem so seems unfair to just go after local US based companies
″ e) What level of gov’t?
• (1) federalism issues
″ 2. Economics
• a) economic idea that theere is an efficient amount of pollution
• b) necessary evil: usually just a by-product of economic rational behavior
• c) net social welfare: the benefit we get is greater than teh cost
″ d) Tragedy of the Commons
″ (1) Lobster fishermen in CT
• i) now there is a moratorium for 5 years
• ii) why didn’t they just agree to lessen the catch limit? no incentive for individuals to do it on their own; everyone wants to get theirs
″ (2) Why may we not have to regulate the commons?
″ i) COASE theroem (p. 18)
″ (a) doesn’t matter whether you give factory the right to polute or the laundry the right to be free of pollution: you’re going to wind up at 3 either way
• i) so, you don’t need any rule about it, the parties will sort it out
″ (b) Problem in real world: is that there are tons of polluters and tons of laundries; not just 1 of each who can bargain 1:1
• i) there are many pollution sources and then are incentivized to say they are small polluters and people should look to bigger companies to curb their emissions, etc.
″ (3) Sagoff: human centered view
• i) we have different preferences and it is okay to pursue the citizen preference as well as teh consumer preference and they may be very different
• ii) not an economic/consumer oriented view but rather a human cnetered view of the sources and things that tell us what is good in EL and what is not good in EL
• (4) Taylor: Biocentric outlook (nature-centered)
″ 3. Risk Assessment: Class 2
″ a) CN
″ (1) everybody has a risk of illness but not at the same tolerance level
• i) we would like to hold down the # who get sick and we want to reach in and prevent harm before it happens
″ (2) easy way to regulate risk is to wait until a bunch of people get poisoned and then step in and stop it
• i) but we want to intervene before it gets to that point
″ (3) Risk Assessment v. Risk Management
• i) Assessment Management
20% chance rain Poncho
60% chance rain Poncho, change route, cancel
80% thunderstorm Waterproof boots, cancel
Hurrican Warning Cancel
″ (4) What we should strive for in risk assessment?
• i) we should make it as nonpolitical as possible
• ii) expect it to be science based and done as well as they can do it
″ iii) asking a science question but
re level to 1 ppm
• (a) OSHA says that benzene is a known carcinogen and industry never demonstrated what a safe level is
• (b) in absense of a safe level it must be assumed that any level above zero presents some increased risk of cancer
• (2) Issue: Whether such a showing is a sufficient basis for a standard that places the most stringent limitation on exposure to benzene that is technologically and economically possible?
• (3) Holding: No
″ (4) Rationale:
″ i) statute not designed to require ERs to provide absolutely risk-free workplaces
• (a) Act intended to require the elimination, as far as feasible, of significant risks of harm
• ii) safe not equivalent of risk free
• iii) Sec is required to make a threshold finding that a place of employment is unsafe
• iv) burden is on agency to prove unsafe
″ (5) Dissent
″ i) Sec decision was reasonable and in full conformance of Act
• (a) experts said no safe level has ever been sohown
″ (6) CN:
• i) Start with the Statute: Sec. 3(8) ad Sec. 6(b)(5) on p. 60
• ii) OSHA used assumptions and set it real low
″ iii) How did we establish no safe threshold?
• (a) Sec. saw it is a carcinogen and set it low; used no facts; set it as low has he could w/o putting company out of business
″ iv) What does Ct do to supervise the agency?
• (a) Ct interprets the statute and separates both parts of the statute
″ (b) Court adds that it has to be a “significant” risk and says that OSHA doesn’t demonstrate a “significant” risk and reverses
• i) court doesn’t substitute own judgment; sends it back to agency for another look at it
″ v) plurality looks at statute differently and gives reason
• (a) makes no sense for Congress to give unrestrained power to