Environmental Law Outline

Environmental Outline

Course Overview Outline

Envt’l Policy

different perspectives on envt’l law and optimal policy

Science (especially ecology) and ethics
Economic Analysis (the main critique id the cost of envt’l protection so this is really important)

****Core of the course is Public Law****

Focus is on the principal envt’l protection statutes

NEPA-National Environmental Policy Act
CAA-Clean Air Act
CWA-Clean Water Act
RCRA-Resource Conservation and Recovery Act
CERCLA-Comprehensive Environmental Response, Compensation and Liability Act of 1980

Regulatory Policy

alternative regulatory approaches to envt’l problems
Optimal regulatory approach for specific problems (context specific)

Limits of the course-not natural resource use, more on pollution prevention.

Introductory Materials

Envt’l Policy

Precautionary Principle-uncertain of envt’l effect, so have regs. and policy that manages the risk so that you control yourself now b/c of the catastrophic and irreversible injury

introduced in Lazarus p3 on ecological injury.

Lazarus sees 6 causes of injury

Irreversible, Catastrophic, and Continuing Injury
Physically Distant Injury
Temporally Distant Injury
Uncertainty and Risk
Multiple Causes
Noneconomic, Nonhuman Character

US law is the source of the Precautionary Principle.
You come to see this policy as you study the law.
Principally in the area of toxic preservation-can be irrationally precautionary.
Now is very prominent in the international community.
US law reflects the idea but the statute doesn’t have the words “precautionary principle,” and the Bush admin. claims that there is no precautionary principle.

Insights from Ecology-Meyer p7

Historical Ecology-Nature was considered in equilibrium, we need to be careful not to throw off that balance.
Modern Ecology-we understand that there is not equilibrium but it is always in flux and the humans are not generally factored into this, they are however, part of nature.
How does this affect the precautionary principle or how we should approach envt’l law?

NEPA from the 70’s under the understanding that science could tell what would happen and how to act (under the old ecology, then they thought they could predict how things would turn out).
How to act now that we don’t think we can predict, by science, the outcome (two experts can say to completely mutually exclusive results will come from a planned action)
Some of the neg. effects would have happened regardless or without human.
This may give an agency power, they have more options, when science can argue both ways, and there are many effects and some are good and some are bad

Ethical approach-Leopold p22, Baxter p24

Leopold says we can define right and wrong by the effects on the envt.

Minimal interference in natural processes.

Right when preserves. “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community.”
Wrong when otherwise. “It is wrong when it tends otherwise.”

Does this help in a particulater situation? Whether to extinguish a forest fire.

Baxter says envt. is only worth preserving to the extent it benefits man.

Endangered Species Act is based on this premise.
If the benefit to man is the only reason to preserve the envt. it seems that is a very proud and unrespecting position.

Doesn’t nature have some intrinsic value?

This rests the question of whether there is a difference in pollution and preservation.

If we say the intrinsic value of is in the trees and animals and we should preserve them what of pollution. All pollution control measures are based on benefit to man (balance b/t industry and health). Does the air and water have intrinsic value that needs to be respected (regardless of human benefit)? if so does that lead to the conclusion that no pollution should be allowed?

Insights of Law and Economics.

Tragedy of the commons-Hardin p12

With commonly owned property there is less incentive to conserve the property. Individual econ. benefit is greater then individual cost. It depletes the common less than the benefit to the individual.
Solutions to the Tragedy

Redefine the individual to a more community environment, education. (yeah right!)
CREATE AN INDIVIDUAL PROPERTY RIGHT.
Mutual coerce, mutually agreed upon-Force an internalization of the externalities ie, private property, tax, right to sue on behalf of the community.

Econ. Model, Coase-Handout and p59

Assumption-no transaction costs (efficient marketplace) (never the case)
Competing interest in land b/t the farmer and the rancher. The crops would be eaten by the cattle w/ regulation. Key concept is that the parties should be able to have the more efficient level of use for the two activities.
The more efficient outcome depends on one or the other having a right.

This will come about despite who (farmer or the rancher) has the right to sue the other. There will reach an efficient level of activity, by market forces.
The right controls the who pays but the end result would be in the same efficient position.

Handout-Coase on polluti