Roots & Rationale for Environmental Law
1. Environmental ills are very pervasive & market actions are unlikely to deter or correct such harms à environmental law.
2. Two Main Branches of Environmental Law
a. Pollution Control
i. Protects public from health risks associated with toxic exposure.
ii. Applies most strongly to private entities, but also to government.
b. Natural Resource Management
i. Protects biodiversity and ecological integrity.
ii. Promotes sustainable development.
iii. Applies to government and private actors.
1. Government – National parks, wildlife refugees, developmental agencies (e.g., those building dams and highways, which much be constructed so as to protect the environment).
2. Private – E.g., ESA § 9 prohibits taking of endangered species. If government reduces amount of timber that may be harvested from national forests, this will affect private actors.
c. Commonalities Between Branches
i. Government agencies play important roles as regulators or resource owners.
ii. NGOs play important roles. Assure that federal agencies assign responsibility properly and carry out duties.
iii. Courts – Oversee administration of and compliance with environmental laws. Handle citizen suits.
iv. Procedure – Some environmental laws are wholly procedural, e.g., NEPA, which requires agencies to consider environmental impact of action before undertaking action. But NEPA imposes no substantive constraints. If an agency prepares an environmental impact statement per NEPA, it may do whatever it wants.
3. Goals of Environmental Law
a. Cost Internalization – EL is designed to internalize the costs of different resource choices. Any adverse consequences should be borne by the actors, not third parties.
i. Understand the consequences, and impose the costs appropriately.
b. Sustainable Development – Promote sustainable resource development. Do not want to deplete the resource pool. Meet present needs without comprising ability of future generations to meet their needs.
i. Moral/Ethical Considerations – Present generation has a moral duty to turn over to future generations an environmental stock just as rich as that which it received from its predecessors.
ii. Three Spheres of Sustainability – Environmental, economic, and social. See Glicksman’s Power Point slides.
iii. Dichotomy between sustainability and economic growth is a false dichotomy.
4. 20th Century Focus on Environmental Law – Explicable partially in terms of changing social attitudes toward environment (i.e., more conservation-mindedness; skepticism of rapid industrialization; etc.)
a. Environmental law is about making choices regarding how finite resources are used.
5. Principle Questions – Should limited pollution or environmental harms be allowed? How do we best assess and limit those harms?
a. Tension between human/economic development/energy security and environmental protection.
6. Environmentalism – Unrestrained modification of natural systems through resource exploitation and development and the unchecked application of technology has substantial, accelerating, and potentially adverse consequences for humankind.
a. Three Objectives – See p. 3.
i. Glicksman – Seeks to change people’s ways of viewing environment.
b. Should value ecosystems for utilitarian or ethical reasons.
i. Sustained industry and development opposition to all forms of government regulation.
ii. Growing disconnect between environmentalism and traditional concepts of rationality and our modern technology-based civilization.
7. Environmental Justice – The fair treatment and meaningful involvement of all people regardless of race, color, sex, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations, and policies.
8. Attitudes Toward Environment
a. Old – Source of untapped resources.
b. New – Intrinsically valuable.
9. History of Environmental Law
a. History of Environmental Law Generally – See pp. 62–76.
b. Preservation Movement
i. Concerned with preserving large areas of public land that remained wilderness areas as national parks and curbing use of public lands.
ii. Ultimately lost out to the Conservation Movement.
c. Conservation Movement
i. Wanted to make science compatible with democratic values and this counter social Darwinism.
ii. Concerned with moderating the rate of present resource use to ensure plentiful future supplies.
iii. Two Principles
1. Resource management is a legitimate public function and should be based on science to promote efficient allocation of resources.
2. State may legitimately restrain use of private property when private initiative wastes and degrades natural resources.
d. Environmental Decade (1970s)
i. Most major federal environmental statutes passed.
1. Most environmental law is positive law.
1. Post-WWII affluence and suburban development.
2. Growth of synthetic organic chemical industry.
3. Transfer of political energy from bitter and divisive Civil Rights Era and Vietnam War to a movement enjoying more widespread support.
4. Heightened civic-mindedness.
5. Incrementally changing state and local laws.
6. Softening industry opposition.
7. “Silent Spring” by Rachael Carson – Detrimental effects of chemical pesticides on birds.
8. Increasing scientific information.
9. High-profile environmental events. E.g., Santa Barbara oil spill; Cuyahoga River fire.
iii. 1969 – NEPA; first major federal environmental statute.
e. Scenic Hudson Pres. Conference v. FPC (1965)
i. First environmental law case.
ii. Established pattern of environmental litigation.
1. Initiated by ad hoc citizens’ group, which had exhausted other remedies.
2. Standing was a major barrier, but overcome.
3. No legal theory under which to argue a violation of a right.
4. Plaintiffs crafted a procedural, rather than substantive, administrative law argument hoping for reverse and remand.
5. Illustrated potential of more intrusive judicial review.
f. Clean Air Amendments Act of 1990 – Last major federal environmental legislation.
g. Second Era of Environmental Law – Highly politicized.
i. Recent Roadblocks and Logjams in Environmental Law – See pp. 72–76.
h. Dramatic events often trigger rapid responses in the form of new environmental regulation.
i. E.g., BP oil spill, tsunami in Japan, Exxon Valdez oil spill, Chernobyl, etc.
ii. BP oil spill and tsunami in Japan did not spur any new legislation, unlike previous environmental incidents.
10. Controversy Surrounding Environmental Law
a. Equity – Imposes constraints on current activity for benefit of future generations.
b. Ingrained Mindsets – “A swamp is a swamp, not a valuable wetland, and I won’t hear otherwise.”
c. Redistributes wealth.
d. Cause – Difficult to trace a clear causal connection between a potentially harmful activity and an environmental harm. Difficult to take action without that connection.
e. Benefit – Regulations may benefit a small species of fly, but why should people care about that? Difficult to demonstrate benefits to humans. Some claim that it puts the welfare of plants, animals, and mountains over that of people, but that is false.
f. Costs – Do costs of environmental protection exceed its benefits?
g. Law may impose costs in a controversial way, e.g., restricting private property owners from building in particular ways. Frustrates c
i. Coercive laws (tort liability, e.g., nuisance).
ii. High taxes, e.g., carbon taxes.
iii. But see liberal tradition seeking the least invasion of private property and individual liberty possible. See p. 9.
1. U.S. environmental regulation has focused on prohibitions on major pollution and landscape degradation. Has not concentrated on prohibitions on small, cumulative consumer choices. See p. 10.
e. Morality – TOTC shows that morality is “an act that is a function of the state of the system at the time it is performed.”
f. Regulatory Commons Problem – See p. 9.
i. No one regulator can effectively regulate environmental harms.
ii. Every regulator thinks that every other regulator is doing the job.
a. Reciprocal Nature of Harm – Harmful effects arise when two parties whose resource uses are incompatible compete for right to use same resource.
b. Primary Goal – “Avoiding the more serious harm.” On which party is it more efficient to impose costs?
i. “The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A?”
ii. Parties will bargain for an efficient result regardless of the initial distribution of rights.
c. Transaction Costs
i. Always exist.
ii. Often the key determinant in whether consensual bargaining will result in socially efficient outcomes.
d. Fundamental Insight – Presence of externalities does not automatically justify government regulation.
i. Detracts from “polluter pays” principle.
8. Values – See pp. 15–16.
a. All costs, including opportunity costs, can be monetized.
i. Can be measured by individual preferences (proxy for market preferences).
ii. No dichotomy between monetized and non-monetized costs.
b. Total Economic Value = Use value + Non-Use Value.
i. Resource Economists
9. CBA – Role of Economic Analysis in Determining Optimal Level of Regulation
a. Key Costs – Are the costs of environmental regulation worth its benefits?
i. Cost-benefits analysis (CBA) often is used.
ii. Typically, regulation should stop at the point at which the costs it imposes are greater than the benefits that it yields.
b. Cost-Benefit Analysis – Formal method of comparing costs and benefits of public action to determine if public actions or funds result in a net efficiency gain or represent an unjustified subsidy or dead-weight loss.
i. Proponents – CBA is neutral. Does not prefer or disadvantage regulators.
ii. Virtually no environmental statutes dictate that EPA use CBA in making regulatory decisions. (Most prohibit CBA. None mandate it.) In some circumstances, Congress has forbidden the EPA from using CBA to make regulatory decisions.