I. Tools and Techniques of Environmental Protection
A. Technology Forcing Standards
1. Technology-forcing – Improve air and water quality levels to a minimum acceptable standard, regardless of current available technologies. Intent was to force industries to use technologies believed to be readily available, but not widely in use, as well as force them to develop new technology.
2. Compliance-forcing – Time schedules for compliance, mandates to clean up or shut down production without regard to cost.
B. Regulations of Existing v. New Emitters
1. Existing – Those open when stringent standards are enacted are beneficiaries of grandfather clauses whereby they are exempted or granted a transition period before they must comply with more stringent standards.
2. New – Tied more to the best technology available, whether or not widely deployed.
C. Taxes and Subsidies – treat the environment as a commodity and allow the free market to allocate resources efficiently.
1. Environmental Externalities – Industry must internalize the cost of the environmental impact into the cost of goods, problem though is that impact can be unquantifiable.
a. Pollution tax system – Government would set a tax rate for each type of pollution at levels that encourage self-imposed pollution reduction.
b. Problems – admin costs, could be worth high cost of tax, no adequate margin of safety.
c. Best system may be a combo of regulation with market incentives.
D. Flexible Market Incentives – Cap n’ Trade
1. Mandate that a polluter offset proposed pollution with reductions of hat same or similar pollutants in the same geographic region. Regulations set a ceiling on the total levels of pollution allowed in a given region, and the private sector bargains for the distribution of these pollution rights amongst themselves.
2. Allows polluters who can reduce their levels of emissions at low cost to do so, while permitting those who cannot do so cheaply, or refuse to, to pay others for the right to pollute.
3. As long as pollutants are reduced, doesn’t matter who is doing it.
4. “Bubble” concept.
E. Risk Assessment – The objective weighing o f scientific data to estimate the risk to a human population from exposure to a given substance.
1. To what level of stringency should a pollutant be regulated.
2. Used to determine the level of remediation required at a particular site where pollution poses a long-term risk to the local population.
3. Process of RA
a. Hazard is identified by determining the pollutant at issue and its likely concentration.
b. Response to a particular dose or level of the pollutant is identified.
c. Assessment of likely exposure through various environmental media.
d. Likely incidence of disease or damage is calculated.
F. Environmental Equity – Certain communities can experience disparate environmental impact. Executive order in 1994 requires all federal agencies to have an environmental justice strategy that identifies the distributional impacts of existing programs and to collect data on demographic outcomes of agency decisions.
II. Common Law Environmental Remedies and Development of Modern Law
A. Commons
1. Hardin – Tragedy of the commons – establish agencies to regulate and control.
a. Intended community – If you don’t do as we ask, we will openly condemn you for not acting like a responsible citizen.
b. Unintended community – If you do behave as we ask, we will secretly condemn you for a simpleton who can be shamed into standing aside while the rest of us exploit the commons.
2. John Locke – humans act in own rational self-interest
3. Coase Theorem – laws purpose is to create property rights that are capable of being traded via market exchange.
4. Private and Public causes of action
a. Private
i. Nuisance Interfere substantially with reasonable use, enjoyment or value of another’s property. Elements:
– Suffered substantial, unreasonable interference with purpose.
– Interference is caused by ∆ use of his land
– ∆ acted intentionally
ii. Injury to life or health.
iii. Trespass – physical intrusion causing injury
– Intent/knowledge
– Causation
– Damage – public property destruction or diminution of property value.
b. Public
i. Offend the senses or violate principles of decency.
ii. Obstruct free passage or use of highways, navigable streams, public parks/beaches and other public rights.
B. Modern Development
1. Reasons for:
a. Commons operates retrospectively
b. Remedies inadequate
c. Rules vary among states
d. Gap of science in the law
e. Don’t have traditional burden of proof in public law
f. Lack international scope
2. Federal vs. State: Who Creates Environmental Policy?
a. Federal Government (advantages):
i. Economies of Scale: scientific data is expensive to gather and process; centralize collection, dissemination, and application of new technologies makes it cheaper and easier.
ii. Race to the Bottom: fear of states attempting to attract businesses by offering lenient environmental/pollution rules, making the cost of doing business less expensive.
iii. Uniformity: some issues might be some important – or widespread – that they must be regulated consistently across state boundaries. This is particularly true when political boundaries are not respected (e.g., air pollution, endangered species, etc).
b. State Government (advantages):
i. Local Values & Priorities: different jurisdictions value goods (including environmental good
ndex
iii. Judicial overrule or interpretation
f. Negotiated rulemaking – agencies gather reps of interested parties to bargain collectively toward a consensus rule.
2. Process of Judicial Review – Judicial review of most agency actions, including final rules and orders. Unless expressly addressed by statute, any admin action is reviewable by a court.
a. Types of cases against agencies:
i. Agency as actor
ii. Π private attorney general. Sue because agency is not doing what it is supposed to do.
b. Standing:
i. Article III Case and Controversy, Three Constitutional standing requirements:
– Actual Injury: Injury in fact.
i. Concrete and particularized
ii. Imminent
– Causation: Injury suffered must be fairly traceable to the defendant’s alleged conduct.
– Redressability: Injury suffered must be redressable by judicial order or judgment.
2. Note: Satisfying Article III
– The amount of evidence required to satisfy the Article III requirements is different depending on the stage of the trial.
– E.g., at the pleadings stage mere allegations will suffice; at the summary judgment stage (which is where Lujan takes place) there must be enough evidence for a reasonable jury to find standing; at the trial stage standing begins to merge with the merits.
c. APA § 702 – Claimed injury is within the zone of interest. Requirement that claimants be within a class that Congress intended to benefit when it passed the underlying law.
d. Citizen Suit Provision
i. Storm King – No economic interest, but don’t just need economic interest.
ii. Sierra club v. Morton – Any harm, but don’t get because no personal injury. Must show at least some nexus between the two.
iii. SCRAP – π allege sufficient individual harm to demonstrate standing. Through an attenuated line of causation, π demonstrated to the court that the alleged injury of increased use of non-recyclable commodities would eventually occur, and that injury of greater litter ultimately could affect them.
iv. Lujan I § 702 – court denied standing because must show personal injury and a highly particularized injury.
v. Lujan II – fails to show injury and failed to demonstrate redressability. Future harm is not enough.
