Environmental Law Outline

Environmental Law & Policy

Kristina Daugirdas, Winter 2015

Introduction

History

Lazarus, Greening of America and Graying of U.S. Environmental Law

Pre-1970s, no strong federal laws; just state efforts and CL property law / tort doctrines

NEPA (1970): procedural requirements for fed agency decision-making: environmental assessments
Media Statutes: CAA (1970), CWA (1972), ESA (1973):substantive controls on pollution and endangering animals

Based on demanding environmental norms, not economic feasibility – focused on technology-forcing to eliminate pollution / reduce risks

E.g., Tough CAA NAAQS, CAA fishable / swimmable goals, etc. and tight deadlines

Pollution Statutes:

TSCA, RCRA : comprehensive prospective regulations

Technlogy-based, health-based w/ some cost considerations

CERCLA: hazardous substance liability

Cleanup haz waste sites / assign responsibility for costs

Regulatory Reform:

Reagan deregulation efforts met w/ public disapproval and more specific statutory amendments, taking discretion from agencies to achieve legislative goals
1990 CAA amendments embraced market-based regime for acid rain, but most statues remaned in command-and-control form

Greening of other laws: administrative law, tort liability, property law, corporate liability, bankruptcy rules, and civil rights law
Environmental law boom: CERCLA

Policy Considerations

Political dynamics impact on policy formation

E.g., CAA grandfathers in old sources (less stringent controls); but controls for new sources disincentivizes updating dirty facilities (so more pollution?)

Role of administrative agencies in deciding priorities / values
Role of courts in interpreting / enforcing policy
20 year dry spell for Congresional action: ineffective laws remain that way; state of art laws (e.g., cap and trade) developing in other countries

Setting Allowable Pollution Levels / Standards

Pollutant characteristics

Threshold pollutant: harmful only at certain level

Compare w/ pollutants that are harmful in all quantities

Dose-response curve uncertainty (esp. at low levels)

Linear? Non-linear?
Extrapolation from known data points?

Harm targets: humans, agriculture, non-human lifeforms like plants / animals?

Secondary effects:

Cure worse than disease – e.g., substitute chemicals worse than originals
Pollute other media – e.g., desposit waste collected from scrubbers elsewhere

Allowable levels

Cost Benefit Analysis (CBA)

Set std where MBA = MCA

But hard to monetize costs / benefits – e.g., lives

Rights-based perspective: people should be pollution free (but doesn’t help set standard?)
Science-driven perspective:still involves value judgments – e.g., acceptable risk, harm, uncertainty

Pollution sources: stationary or mobile and which sould be regulated?

Regulatory Options

Emissions limitations (per unit emissions)

Doesn’t cap total emissions
Doesn’t control source quantity / distribution

Regional concentrations; may locate in disadvantaged communities (pollution v. job benefit tension)
Hotspots (if doesn’t disperse) make thresholds hard to achieve

Emissions cap (total emissions ceiling)

Doesn’t inform burden allocation; but prevents hotspots

Cap and trade

Allocate by market process

Hotspots?

But geographical limits hurt efficacy (min # mkt players)

Firm cap
Allows differential reductions:firms will reduce until more expensive than buying permit
Gov’t revenue?

Pollution tax (tax per unit production)

Reduce until more expensive than tax
Change tax based on pollution quanities?

Doesn’t control hotspots

Gov’t rev?
Political non-starter (but tax and trade also a cost…)

Environmental Worldviews / Perspectives: Nature-centered, Human-centered & Economics

Human-centered v. Nature-centered

: protect nature b/c humans value it – e.g., health, wealth, aesthetics, spirituality
: protect nature for its own sake; have obligation for other life-forms
Twain, Was the World Made for Man?

Encourages humility, given how profoundly small a part humankind has played in long history of earth

Leopold, The Land Ethic (nature-centered)

Ethic, ecologically, is a limitation on freedom of action in struggle for existence; a mode of guidance for meeting ecological situations so new or intricate…that the path of social expediency is not discernible to average individual
Community has interdependent parts, including soils, waters, plants, animals: the land

Affirm rights of natural resources / animals to continued existence – “biotic right”

A thing is right when it tends to preserve integrity, stability, and beauty of biotic community

Cautionary examples – e.g., deterioration of New Mexico grazing lands from overuse
Conservation based solely on economic self-interest will fail

Taylor, Respect for Nature: Theory of Environmental Ethics (nature-centered) (32)

Humans are members of earth’s community of life; all species are integral parts of interdependent system and survival depends on maintaining these relations; all organisms are teleological centers of life (each has its own purpose); humans not inherently superior

Decision-making / policy roadmap (competingclaims / priorities)

Self-defense, principles of proportionality, minimum wrong, distributive justice, and restitutive justice
Self-defense: can protect self against harmful organisms (so not exact equality)
Basic (essential to existence for all) v. non-basic interests (less essential requirements for individual development)

Basic requirements of all organisms trump non-basic requirements for other organisms except when rational, enlightened people agree otherwise
Resources vital to basic interest should be shared equally by all except where so doing would conflict w/ protecting those vital interest; then nobody is required to self-sacrifice (e.g., can consume animals for food)
Restitution principle requires compensation for harm – e.g., setting aside wilderness areas for animals to thrive in their natural conditions

Does Taylor’s framework lead to extreme outcomes?

E.g., tension b/t curing oneself of bacterial disease and intrinsic value of bacterial survival

Other biocentric views: deep ecology, ecofeminism (linking patriarchal societies w/ environmental destruction); vegetarianism (compare Taylor who views all lifeforms as equal and Singer who ranks species – OK to eat lower life forms, but not higher ones)
Nature-centered regulations

Weigh non-human harm more heavily
If harm, find ways to compensate for it
Large margin of safety of account for inherent uncertainty
Intergenerational equity, s o avoid irreversible decisions / pollutions

Economics

Descriptive economics is “value neutral,” but still assumes self-interested decision-making, so very human-centric

Wilderness = luxury good?
Tension from squeezing