I. Enviromental Values and Policies. 1-26
A. Environmental Values and Policies: An introduction
1. Ensuring future generations have healthy environment and prosperous economy is a universal aspiration. Now called “sustainable development.”
2. Roots in:
a. Torts
b. Property
c. Constitutional law
3. Facing two simoultaneous problems
a. Reforming tools at hand to make them stronger
b. Building the institution necessary to cope with climate change
B. Problems and Progess
1. Impact (I) that human behavior has on the environment results from the combined effect of population size (P), the level of affluence (A), and the type of technologies (T) that enhance our abilities to consume resources.
2. Have had some success. Air quality in U.S. has improved even though GNP and population has gone up. Per capita ecological footprint is now growing slower than population. U.S. consumes more than twice its own biocapacity though.
3. Environmental progress will be increasingly difficult because progress from here on confronts tougher problems than we have currently dealt with. So far we have tackled only the obvious environmental problems where remedial steps were relatively manageable. See “unfinished business” list figure 1.2, p. 6.
4. Battles over further environmental initiatives focus on whether they are effective, as well as whether they come at too high a cost to other values, including private property rights, economic growth, and individual freedom.
C. American Environmentalism: Sources and Values
1. People interact w/world physically and through their values. Values provide the lens through which people view the environment. Two people may value forest, one to cut down and replant and the other to preserve wildlife.
2. Environmentalism reflects these mix of values.
a. Human Centered
b. Bio-centered
c. Eco-centered
3. Ecology science is a unifying aspect, showing the interrelation of mutually dependent components of environment.
4. Religious values can play a part.
5. Preservationists are another group – want to preserve historically significant buildings and environments.
6. Center for Progressive Reform: Perspective on Environmental Justice
a. Communities of color and poor have been disproportionately affected by environmental problems, but didn’t become issue until 1980s.
b. Because not measured for cumulative effects, problems may be underestimated in minority communities.
c. Pollution trading may excacerbate problem by concentrating pollution.
d. Enforcement less in minority communities.
e. Clean up less in minority communities, probably because less power.
f. Minority communities don’t have strong voice when regs being made.
7. Notes on Enviromental Justice
a. In 1994, Clinton issued Executive Order 12,898. Ordered agencies to “make achieving environmental justice part of its mission by identifying and addressing” impacts of policies and activities on minority and low income populations.
b. EPA has been criticized for not following order.
c. All agencies did review of the procedures b/c of order and made strategy to implement.
d. Civil Rights Act (section 602, title VI) allows administrative complaints for actions with discriminatory effect which environmental justice advocates are using. Don’t have to prove discriminatory intent. Complaints heard by EPA’s Office of Civil Rights.
e. Section 601 of Civil Rights Act requires showing of discriminatory intent. So can’t bring lawsuit for enviro justice issues without showing intent.
f. Split in Circuits whether § 1983 allows enviro justice suits.
g. Not giving minority and poor communities a voice in enviro planning also fails ideals of participatory democracy.
h. Fact that it is discussed so much now shows progress.
II. Economics and the Environment 26-38; 49-53
A. Econmics and the Environment, Goodstein
1. The Role of Prices and Markets
a. If company has to pay for “underpriced” goods such as air or water, it “internalizes the externalities” and pays for the true costs of production.
b. Free access problem—If people weigh private benefits against private (as opposed to social) c
Resources
1. Garrett Hardin, The Tragedy of the Commons
a. Tragedy of the Commons—Each person is locked into a system that compels him to increase his herd without limit in a world that is limited.
b. The tragedy of the commons might be avoided by private property, or something formally like it. But the air and waters surrounding us cannot be readily fenced, and so the tragedy of the commons as a cesspool must be prevented by different means, by coercive laws or taxing devices that make it cheaper for the polluter to treat his pollutants that to discharge them untreated.
c. The prisoner’s dilemma and “individually rational and collectively deficient” decisions—An act may be individually rational because each player chooser her dominant strategy, which is the rational thing to do. It is collectively deficient because there exists another outcome that would leave each better off. This individual rationality and collective deficiency identifies the problem of collective action, namely that “it may be in everyone’s individual interest not to cooperate in a collective effort even though everyone would be better off if everyone cooperated.
III.Common Law Roots (pp. 61-88; 99-104)
A. Environmental Law: A Structural Overview
1. Sources of Environmental Law
a. Common Law Roots
i. Generally
One. Seeks to protect people & property from harm caused by others
Two. Internalize the externalities (Boomer Atl. Cement case)
1. Pay for the damage caused to surrounding communities’ air, water, etc. (the free stuff)
Three. Polluter pays: Boomer Atl. Cement
Four. Beneficiary pays: buying & retiring acid rain credits
