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Environmental Law
University of Connecticut School of Law
Strasser, Kurt A.

″ 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