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

Environmental Law Outline
Fall 2009
What’s the problem?
·        What’s the legal response?
·        What’s the regulation?
·        What has the reviewing court said about the regulation?
Pervasive Concepts
1.  Introduction.
·        Introduction to regulatory strategies.
o       Regulations: such as taxes, statutory limits on emissions, etc.
§         Emissions limits: could adversly impact industry.
·        Ex. Limits on coal industry could reduce available power and lead to outages
·        How do you decide where to set limit?
o       Could use teach based std.  What is possible? But may not reduce enough
o       Look at total concentration- Ambient std. How much do you want in the air?
o       Cap and Trade System- allow companies to trade emission rights
o       Tax- make everyone pay a tax to produce emissions- creates incentive to use less and cleaner methods- BUT new taxes unlikely to get passed.
o       Liability Standards: would be difficult to work – would be hard claim to prove structure of lawsuit would be unweidly
o       The Reg/Polict stratedgy needs to fit the problem. Usually trying to find mix of tools that will lead to change you want.
·        Economic perspectives
o       We have pollution because we’re consumers and its profitable.  Bad b/c they’re harming another w/o paying, they’re using a resource w/o paying for it.
o       “Tragedy of the Commons” by Hardin
§         If I use more of a common resource I get all the gains but only part of the cost.
§         We all have incentive to use the commons but may exhaust the commons = tragedy
§         analogizes the commons to pollution
§         herdsman =  pollution
§         air and water heavily polluted b/c no one owns them
§         problem very related to population
§         legislation is difficult and may not solve the problem
o       “Problem of Social Cost” by R. Coase
§         can hurt both sides- have to try to avoid the more serious harm
§         when the assumptions are satisfied it doesn’t matter which party has the legal right
§         Has many assumptions…
·        no transactions costs
·        Doesn’t take into account public values
o       ie in factory and laundry example public wouldn’t want 3 emission units, would want less
§         Encourages placing a monetary value on everything- hard to do this for environment and nature
2.  Philosophical and ethical perspective
·        Non-Economic Perspectives
o       Human Centered Approach: based on the interests of ppl
§         Pollution is bad b/c it harms ppl, we also value having clean resources and environment.  Get pollution b/c ppl have bad values and will have to change behavior
§         Sagoff Excerpt pg 22
·        wan

s seen as so important that its favored even though it may harm basic interests of non-humans
o       distributive justice – conflict of human and non-human interests- each party must get equal share of good- involves basic interest of both
o       restitutive justice- making up wrongs caused by last 2 principles
3.  Risk assessment: process of analyzing info to determine if an envir hazard might cause harm to exposed ppl and ecosystems. How much risk is present?
·        3 Principles:
o       Feasibility and desirability of insulating risk assessment from politics
o       Uncertainities inherent in risk assessment
o       Implications of the divergence b/t expert and lay perceptions of risk.
·        William Ruckelshaus Article pg 53
o       a sharp distinction should be drawn b/t risk assessment and risk managment
o       want to keep RA as scientific as possible. Should keep politics out of risk assessment- political considerations are more appropiate at the risk mgmt stage
o       With RA will usually be asking a scientific type question
RM should include policy considerations