Environmental Law Outline

ENVIRONMENTAL LAW COGLIANESE SPRING 2013

FRAMEWORKS

A. History of the Environmental Movement

– The successes of environmental regulations may have lessened the sense of urgency felt by the public when it comes to less palpable, but potentially no less serious, environmental concerns such as global warming.

→ NY Times blog, “Environmental Warning Fatigue”: Global poll released in late Feb showed that “global concern for major environmental issues is at an all-time low.” While the scientific evidence is stronger than ever, “economic crisis and a lack of political leadership mean that the public are starting to tune out.” The sharpest decrease in global concern occurred over the last two years. BUT the issue of climate change, which 49 percent of respondents rated last year as “very serious,” was the only exception to the general trend. Pollsters found that there was less concern between 1998 and 2003 than today.

– 14 major environmental statues passed 1970-77; since then only four.

– Current American environmental policy lacks a “coherent vision of the common environmental good that is sufficiently compelling to generate sustained public support for gov’t action to achieve it.” Public opinion has not been so radically transformed as to propel the environmental agenda toward further social and legal transformation.

– In 2001, only 68% of Americans are “sympathetic with or active in” the environmental movement (81% in 1992).

– Americans’ broad acceptance of environmental values does not translate into strong support for government policies to change citizens’ behaviors, particularly re: energy consumption and driving habits.

– Even when a crisis does occur, the fact that gov’t institutions exist to respond to it tends to reassure the public and allay its concerns. (As meaningful today as when it was written in 2001?)

– EPA, “Reducing Risks” (1990): “In this country the most obvious controls already have been applied to the most obvious problems. Yet complex and less obvious environmental problems remain, and the aggregate cost of controlling those problems one-by-one is rising.”

B. Analytical Frameworks

– Environmental rights (ethics): Humans have a right to environmental protection

→ Tends to push policy towards absolute positions: only a zero pollution standard would ensure everyone a safe environment, but that would seriously undermine the economy.

→ Do not always favor greater environmental protection: landowners often assert that regulations of their land use intrude on their “property rights”; businesses argue that regulations interfere w/ their “rights” of employment or of a local community to determine for itself how to use local resources and determine its own future.

– Sustainable Development: Both environmental protection and development interests are meaningfully addressed

→ Development cannot be abandoned: Poverty must be reduced and standards of living raised throughout the developing world, as well as in the poorest sections of industrialized nations.

→ Focus both on intragenerational and intergenerational equity.

→ Contradicts the common assumption that growth is good. Central to the concept is the importance of limits: that we must develop within the constraints of natural systems.

– Utilitarianism: Empirical approach to balancing the risks posed by environmental problems against the cost of controlling them

→ Federal agencies must quantify, to the extent feasible, both the benefits and costs of potential regulatory actions and “propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” Agencies must adopt the most cost-effective approach where different regs could accomplish the same goals.

→ BUT in many environmental instances (e.g. setting NAAQS) Congress has forbidden agencies from considering costs.

– Environmental Justice: Examination of whether the costs and other burdens of environmental harms and solutions are equitably distributed among individual and group throughout our society and future interests

→ Local communities should have a significant if not controlling voice in decisions and activities that impact their residents’ lives. Decisionmaking processes should be open to all residents, and everyone should have access to the scientific and other resources needed to understand and assess policy proposals.

→ Runs counter to the modern emphasis in American environmental policy on federal decisionmaking by expert agencies

→ E.O. 12898 (Clinton, 1994): all federal agencies required to incorporate environmental justice into their decisions “by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects.”

→ EPA prohibits disproportionate impacts, whether or not caused by intentional discrimination, in EPA-funded programs.

C. Environmental Quality and Economic Growth

Club of Rome: Limits to Growth (1972) Kuznets Curve

Estimated Annual Costs & Benefits for Major EPA Rules (before adoption)

– 1993-2003 (OMB, 2004 Report to Congress; 2001 dollars)

→ Benefits: $38 to $132 billion

→ Costs: $22 to $24 billion

– 2001-2011 (OMB, Draft 2012 Report to Congress; 2001 dollars)

→ Benefits: $85 to $565 billion

→ Costs: $23 to $29 billion

Public Policy

1. Overview

– “Mismatched scale challenge” for environmental issues

→ Political boundaries do not align w/ ecosystems, watersheds, etc. Who should manage the resources and control pollution?

→ Locals are closer to the problem and must live with the consequences of environmental policies, but these are trans-boundary problems, thus locals do not live w/ the consequences of their pollution.

→ Not a given that jurisdictions will “race to the bottom”: Little evidence that firms make locational choices based on environmental regulatory burdens. Moreover, environmental quality is often seen as a benefit. More important concerns are proximity to markets, labor and raw material costs, political stability, etc.

→ The costs of environmental regulation falls on us in the present, but the benefits are enjoyed by others, far into the future.

– Reagan administration established White House Review process for new regulations

2. Market failures as justifications for regulation

– Prices of goods and services do not account for the total costs of production. But these externalities themselves are not sufficient to justify regulation. Must balance:

→ Benefits (health standards, e.g. “acceptable” or “significant” risk)

→ Costs (tech-based or feasibility-based standards, e.g. Best Available Technology)

– Common law cannot address pollution problems.

→ An individual suing a polluter must prove all four elements of tort; causation most difficult.

→ Serial defendants have better litigation capacities. Individuals have low incentives to bring suits b/c each individual has the incentive to free ride on the positive outcomes of the other person’s case

– Question re: aggregate social utility. A utilitarian perspective would support a solution in which a few people would be much worse off but society as a whole would be much better off. A deontological perspective would not support such a solution.

– Environmental regulations change incentives: When a possibility of a fine exists,