Environmental Law Outline

ENVIRONMENTAL LAW
Healy—Spring 2009

· POSSIBLE EFFECTS OF POLLUTION:
o Human Health Effects
§ Affected media (e.g. air or water)
§ Immediate effects
§ Long-term effects
§ Acute exposure impacts
§ Low level impacts
§ Distribution impacts
o Environmental/ Welfare Effects
§ E.g. Impacts on agriculture
o Economic impact of pollution control

· ENVIRONMENTAL POLICYà Different perspectives on environmental law and optimal policy
o Science (especially ecology) and ethics
o Economic analysis (main critique of environmental policy is the cost)

· REGULATORY CONTROL ISSUES
o Control on emissions (based on production levels)
o Market based controls
o Liability based approaches (Common law liability regimes—tort law, nuisance, negligence, strict liability)
o Ambient pollution standards (based on health and welfare effects)

· ECONOMIC PERSPECTIVE ON ENVIRONMENTAL DEGRADATION
o Tragedy of the Commons (Garrett Hardin)
§ “Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in freedom of the commons. Freedom in a commons brings ruin to all…”
§ The tragedy is caused by individuals pursuing their own economic welfare because they don’t look at the aggregate effect and are not accounting for the full negative impact.
§ Hardin’s argument is that rationally, herdsmen will continue to add o their flocks and destroy the land.
§ SOLUTION—“Mutual coercion, mutually agreed upon by the people affected”—force an internalization of the externalities (i.e. private property, tax, right to sue on behalf of the community, etc.)
ú Create individual property rights in the commons
o The Problem of Social Coat (Ronald Coase)
§ This analysis is an attempt o find a level of efficient production where different uses of resources are in conflict
§ Those advocating for market-based approaches say that there is an efficient level of production and that it is inefficient to take the approach that all pollution should be stopped or regulated to the most stringent degree possible
§ Assumption—no transaction costs (efficient marketplace)
§ Graph—Parties will come to an agreement that ‘z’ is an appropriate point of regulation. Past this level, it would be more expensive for them to pay for the additional part than pay for the injuries case.
ú What does the graph tell us about environmental regulation? That as long as you internalize all externalities, parties that have incompatible uses of resources should be able to arrive at an efficient point where their interests are maximized
ú PROBLEMS—Difficult to grasp the receptor curve and what goes into it (aesthetic value, etc.)
o Cost-Benefit Analysis
§ KALDOR-HICKS EFFICIENCY—Those who win by the change are able to compensate those who lose by the change and still get a profit/ gain (aggregate gains exceed aggregate losses); easier standard than Pareto, more utilitarian
§ PARETO EFFICIENCY—At least one person is better off and no one is worse off (much more difficult to accomplish than Kaldor-Hicks)

· NON-ECONOMIC PERSPECTIVE ON ENVIRONMENTAL DEGRADATION
o Human-Centered Approach (Sagoff article)
§ Nature is protected only because it is of value to human beings
§ Environmental regulation is about public values that our society chooses collectively.
§ GOAL is to weigh ends and means together in order to set targets and standards that are reasonable in relation to the efforts necessary to achieve them; this appraisal needs to be done to begin with rather than make compromises later at the level of enforcement
o Nature-Centered Approach (Taylor article)
§ The human species has independent obligations toward other forms of life; nature must be protected for its own sake
§ 4 beliefs that form the core of the Taylor’s biocentric outlook on nature:
ú (1)that human beings are members of the earth’s community of life on the same terms as other living things
ú (2) that all living species, both human and non-human are interconnected
ú (3) that each organism is a unique individual pursuing its own good in its own way, and
ú (4) that human beings are not inherently superior to other living things
§ 5 principles for resolving conflicts:
ú Self defense
ú Principle of proportionality
ú Principle of minimum wrong
ú Principle of distributive justice
ú Principle of restitutive justice
§ **NOTE: Healy says that both of these approaches seem to say more about preservation than pollution control

· RISK ASSESSMENT
o DEFINITION—Risk assessment is a process in which information is analyzed to determine if an environmental hazard might cause harm to exposed persons and ecosystems
o 3 PRINCIPAL THEMES:
§ 1) Feasibility and desirability of insulating risk assessment from politics (whether its possible/ appropriate to do so)
§ 2) The uncertainty inherent in the risk assessment process
§ 3) The implications of the divergence between expert and lay perceptions of risk
o PROCESS OF RISK ASSESSMENT:
§ (1) Hazard Identification—whether a pollutant or substance poses a risk to environmental health
ú Typically determined by a consideration of available scientific studies various sorts.
ú Most important studies are:
w (a) Epidemiological data/studies (of human health effects),
w (b) Animal-bioassay studies (with rats, etc.)–potential problems–> comparing humans to animals, dosage issues (animals will be exposed to large doses over small periods of time), other factors pertinent to humans not looked at
w (c) Studies of mutagenicity
w (d) Comparisons of molecular structure (between unknown hazard and known hazardous chemical)
§ (2) Dose-Response Assessment—objective here is to make use of those studies to come to some conclusion about the risk that is posed to human beings with particular level of exposure to the substances that are of concern
ú Difficulties–you are trying to use data that is not all that helpful; trying to account to latency periods
ú Fair amount of controversy because they are being made without a lot of good scientific data; great deal of uncertainty associated with it
§ (3) Exposure Assessment –looks at the extent to which human populations will be exposed to the hazardous substance/ the pollutant and at what levels
§ (4) Risk Characterization—(most important part of risk assessment for lawyers) this acts as a summary of the risks posed by the substance that includes a description of the degree to which the risk is uncertain (including gaps in information or studies)
o PRECAUTIONARY PRINCIPLE—The idea that we don’t know the full impact of these substances but environmental protection measure should be taken without waiting for the final proof that certain outcomes are going to occur

· RISK MANAGEMENT
o

· 4 REGULATORY APPROACHES TO ENVIRONMENTAL PROBLEMS
o (1) Information-Based Regulation
§ This is generally seen as the least intrusive form of environmental regulation. It usually takes either of two forms.
ú (a) Information standards require that information be provided to particular parties to describe a hazard that may be too difficult or costly to limit or eliminate. The theory is that people may alter their conduct when they are provided sufficient information.
w Application in Federal Environmental Law: The Community Right to Know law, adopted as part of the amendments to CERCLA in 1986, as well as OSHA take this approach. The recent amendment to the Safe Drinking Water Act also takes this approach.
ú (b) The rational planning approach is based on the principle that environmental decisions should be reached through a planning approach that permits those to be affected by a decision to deliberate with the decisionmaker about the effects with the expectation that those effects will be considered and the best approach taken in view of all impacts.
w Application in Federal Environmental Law: This is the regulatory approach of NEPA and the nonpoint source provisions of the CWA.
§ STRENGTHS: Consistent with democratic values and does not necessarily elevate certain effects over other effects.
§ WEAKNESSES: Relies on good-faith, open-minded decisionmaking and thus may be unrealistic given theories of agency capture and agency agendas. Because this allows political decisionmaking, it may reinforce the imperfections of the political system, which disadvantages those who are less organized.

o (2) Command and Control Regulation
§ Technology-based regulation. This form of regulation imposes controls on the basis of the technology of the regulated industry. There are two bases for the standard that is imposed and the standard may take one of two different forms.
§ Bases for the standard.
§ Technology-based regulation may be based on available technology or adequately-demonstrated technology, both of which require that the technology be shown to be available to the regulated industry.
§ Technology-based regulation may be based on a technology-forcing requirement, which imposes a standard that compels the regulated industry to develop a new control technology in order to meet the command and control requirement.
§ Forms of the standard.
§ Performance standards state a level of control without specifying a particular compliance technology or method. This standard may state a mean or maximum permissible discharge into the air or water. The regulated party may comply with that performance standard using any available, feasible technology.
§ Application in Federal Environmental Law: Most technology-based standards are in the form of performance standards.
§ Design standards specify production processes or how equipment must be constructed or arranged. These standards are problematic because the industry may be in a better position to identify the design that will be most efficient in meeting the relevant environmental goal.
§ Application in Federal Environmental Law: Design standards are used in some provisions of the CAA, the CWA, and RCRA.
§ Health-based or environmental-quality-based regulation.
§ These are pollution-control standards that are based on the public-health or environmental-quality impacts of the activities of regulated industry. They depend on amb