Environmental Law Professor Robert Glicksman
Characteristics of Environmental Risk Problems
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- Four-Step Risk Assessment Process
- Comparative Risk Assessment
- Individual Standing/Special Damages
- Intentional and unreasonable
- Intention
- Threshold Approach to Determine Liability
- Constitutionally Rooted Environmental Claims
- Environmental Justice Theories
- Common Law, etc. During Statutory Environmental Era
Characteristics of Environmental Risk Problems Ignorance of mechanism. Potential for catastrophic costs. Relatively modest benefit associated with environmental risk gamble. Low subjective probability of catastrophic outcome. Internal transfer of benefits associated with risks. External transfer of costs. Collective risk, related to environmental transfer of effect. Latency, the extended delay between initiation of hazard or exposure to it and manifestation of its effect. Irreversibility. Risk Assessment – Process of deciding how dangerous a substance is. Ascertain nature of adverse effects of exposure and determine probability that an individual will experience those effects as result of a specified exposure. Questions Is a risk serious enough to warrant public or private action? What criteria should agency use in answering this question? Four-Step Risk Assessment Process – Hazard Identification Exposure Assessment Dose-Response Assessment Rick Characterization Dose-Response Assessment – Create a graph with “dose” along the X axis and “response” along the Y axis. Functions First Function – Screening function. Must determine which risks are worthy of consideration, considering our limited pool of resources. Second Function – Prioritization. Risk ranking. Sometimes referred to as comparative risk assessment. [See Comparative Risk Assessment below.] Involves scientific evaluations. Risk perception comes into play. Experts and laypersons perceive risks differently. Role of Public Perception of Risk in Regulatory Decision-Making Experts should set the agenda. The public does not have the necessary expertise to make such determinations, and if we over-rely on public perception of risk, we will misallocate resources. Stephen Breyer recommends a centralized panel of experts. If public perception of risk is heeded, the public may be more willing to support its actions. Public buy-in. We should promote public participation in the democratic process because elected officials are the ones that appoint experts. Policy choices are value choices, and value choices should reflect the will of the people. Limited Resources Must identify and prioritize risks. Risk Management – Process of deciding what to do about an assessed risk/group of risks. Questions If a risk is serious enough to warrant public or private action, how should it be managed? What standards should determine manner and extent of regulation? Governed mainly by policy considerations, as opposed to risk assessment, which is governed mainly by science. Considers law, economics, politics, sociology, etc. Conducting Risk Assessment – Like Pascal’s Wager False Positive – You think that you have identified a very serious problem, but more research reveals that it is not a serious issue. Regulatory Result – Unnecessary regulation. Better safe than sorry. Regret – Lost dollars. Most environmental regulatory agencies adopt this policy, rather than preferring false negatives. False Negative – Current research does not seem to indicate a problem, but more research shows that you were facing a very serious issue. Regulatory Result – Failure to regulate in the face of serious risk. Regret – Lost lives. Which is the best side on which to err: neutrality, false positive, false negative? A: False Positive. Lost dollars are less of a concern than lost lives. If an environmental harm wreaks havoc during a False Negative period, we may not be able to fix it when we realize that we have made a mistake. It may take a long time to identify harms during a False Negative period, e.g., cancer, genetic mutations, etc. Imbalance in Information – Regulated industries have more relevant information that the EPA. We can assume that there is a bias against regulations because industry has an interest in not revealing dangers. Better to err on the side of False Positives. Why might it be better to err on the side of False Negatives? New regulation might create greater risks than those that we are attempting to eliminate. Regulation can be counterproductive in other ways. E.g., in order to accommodate increased costs of operation, companies may terminate employees. It is possible that, because of their terminations, these people will experience a lower quality of life. Criticisms of Risk Regulation – Breyer. See p. 738. By seeking to eliminate 10% of risk, regulators impose enormous costs without achieving significant incremental risk reduction. EPA lacks rational agenda selection mechanism. Different agencies use different risk assessment methodologies and ignore effects of regulation of one environmental medium upon another. Comparative Risk Assessment – Process by which scientists determine which environmental risks are most serious. Assign priorities to environmental problems. Limited resources to most serious risks first. Higher rate of return on regulatory investment. Societal Risk Reduction – Considering all health and safety risks, not just environmental. Ideal form of CRA. Criticisms – See p. 751 Criticisms – See pp. 749–53. Uncertainties involved in measuring and quantifying health and environmental risks constitute a real problem. Information often is unreliable. This causes misallocation of resources. Efforts to minimize uncertainties are not effective. Generating sufficient data would cripple EPA. Not enough resources to assess all risks. Environmental Justice – Measuring the quantified magnitude of an environmental risk does not reflect how that risk affects groups of people. Costs of compliance are overstated because estimates do not take into account economies of scale, cost savings attributable to technological innovation, etc. Public perception of risk is not irrational. Disregards equitable considerations. Assumes that only existing solutions are available; disregards possibility of new, innovative solutions. Risk-Risk Analysis Agencies should compare risks attributable to and avoided by regulation to ensure that former does not exceed latter and that regulation is not counterproductive. Both doing nothing and regulating carry risks, and we must compare those risks to determine the best course of action. Criticisms – See p. 751. Undeveloped theory. Confuses correlation with causation with regard to health and wealth. Incorrect assumption that regulation creates no jobs. Common Law Baseline of Environmental Law Background Environmental law builds on existing common law framework and often explicitly preserves state law. Statutory and regulatory laws have overtaken common law as main environmental protections. Statutory law: Is more complex than common law. Presents more cutting-edge environmental protection issues than common law. Sometimes has displaced common law strategically or legally. Most environmental statutes preserve space for environmental common law remedies. Few environmental statutes create a right to damages. Some federal statutes create limited rights to pollute, and although a polluter may be acting within the confines of a statute, it still may be liable on common law bases. Government agencies are not always diligent in enforcing statutes. Statutes may become outdated, but the common law has ability to evolve. Common law may impose higher standards on actors. Statutes reflect approaches first developed in common law litigation. Tort Law Designed to shift losses from culpable defendants to meritorious plaintiffs. Several Common Features of All (Relevant) Tort Claims Liability Causation Sometimes, difficult to determine because of scientific uncertainty. Long exposure periods, and an injury does not manifest until long after an individual first encountered the risk (i.e., 20 or 30 years). Individual would have been exposed to many risks during the intervening years. Witnesses may have passed away. Evidence may have degraded. Injury/Damage Factors Relevant Only to Some (Relevant) Tort Claims Duty of Care Damage must be foreseeable. Strict Liability Relevant Torts Negligence Public Nuisance Private Nuisance Trespass Strict Liability Public Trust Doctrine Negligence Many companies are in full compliance with existing federal statutes and regulations. Plaintiffs have a difficult time showing that defendants acted unreasonably. Benefits May offer longer statutes of limitations. May provide damages. Elements Injury Duty of Care Breach Actual Cause Proximate Cause Damages Relevant Contexts Personal injuries due to environmental pollution. Harm arises out of obvious accident, e.g., oil spill. Remedies sought are available only under negligence doctrine. Defendants’ insurance may be the only possible source of damages. Insurance providers sometimes will cover damages resulting from negligent conduct, but not damages resulting from intentional conduct. Therefore, plaintiffs must sue to show negligence. Nuisance Generally Most frequently invoked common law claim for environmental harms. Intent – Harm-producing activity must have been undertaken intentionally. Foreseeability – Harms could have been reasonably foreseen by polluter. Goal – Internalize costs to polluter. Public Nuisance Definition – Unreasonable interference with rights of the public. Often filed by (state) governments on behalf of citizens. See Georgia v. Tennessee Copper Co. Private individuals also may be able to bring claims, provided that they have standing. Individual Standing/Special Damages – Harm that is different in kind (qualitative) and not simply greater in magnitude (quantitative). Often exhibited through property damage. Some courts allow injunctive relief without a showing of special injury but will allow recovery of damages only with special harm. Objective – Protecting public health, welfare, safety, morals, parks, common resources, etc. (interests common to general public). Elements “A public nuisance is an unreasonable interference with a right common to the general public.” Rest. 2d Torts § 821B(1). See E&E 23. Unreasonable – Balancing of interests. Almost the same as with private nuisance. Conduct prohibited by statute is unreasonable. “Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: “Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or “Whether the conduct is proscribed by a statute, ordinance or administrative regulation, or “Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.” Rest. 2d Torts § 821B(2). Climate Change – State and private actors have had some success in public nuisance actions against GHG emitters. See p. 33. Private Nuisance Most common environmental law tort. Definition – “Nontrespassory invasion of another's interest in the private use and enjoyment of land.” Rest. 2d Torts § 821D. Interest Protected – Use and enjoyment of private property. Protects against non-trespassory interferences with use and enjoyment of land. Different than public nuisance. Intentional_and_unreasonable'>Intentional or unintentional tort intentional nuisance and negligent nuisance. Elements Defendant’s conduct is unreasonable and causes substantial interference with use and enjoyment of land or causes bodily injury. “One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either “Intentional and unreasonable, or “Unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.” Rest. 2d Torts § 822. Unreasonableness Focus – Reasonableness of activity’s effects in a particular place, not general reasonableness of conduct. Compare effects to surrounding land uses. “An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if “The gravity of the harm outweighs the utility of the actor's conduct, or “The harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.” Rest. 2d Torts § 826. “An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.” Rest. 2d Torts § 829A; see also Petsey v. Cushman (“In the common-law private nuisance context, the determination of whether a defendant's interference with a plaintiff's use and enjoyment of the plaintiff's property is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable. Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated.”). Balancing of hardships, using the Comparative Hardship Doctrine along with a public-interest test at the remedy stage. Would the public interest suffer substantially if an injunction were issued? If so, plaintiffs receive damages, and defendant may continue its nuisance-creating activity. Unreasonableness of Unintentional Negligence – Demonstrate negligence or recklessness on part of defendant; negligent conduct, by definition, is unreasonable. See Rest. 2d Torts § 822 (above). Intentional Negligence – Intention and unreasonableness are distinct elements. Intention – Harm-causing activity must be intentional. Harm need not be intentional. Unreasonableness – Should you focus on the conduct or the interference? Walsh (Court didn’t know which to use.); Petsey v. Cushman (“While an unreasonable use and an unreasonable interference often coexist, the two concepts are not equivalent, and it is possible to prove that a defendant's use of his property, while reasonable, nonetheless constitutes a common-law private nuisance because it unreasonably interferes with the use of property by another person.”). Interference – Lawful conduct should not be able to impose an unreasonable interference on another’s land. Walsh (“A municipality which creates a nuisance causing damage to the land of another is not excused from liability on the ground that the act is lawful in itself if, under all the circumstances, it is unreasonable.”). Location-specific standard. Walsh (“A fair test of whether a proposed use constitutes a nuisance is the reasonableness of the use of the property in the particular locality under the circumstances of the case. The test of unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests in various situations according to objective legal standards.”). Balancing of Interests Between Parties – May make it difficult for a plaintiff to succeed. Interests of a socially beneficial activity may always outbalance the relatively minor harm to one plaintiff. Walsh. Boomer v. Atlantic Cement Co. – Shows that a plaintiff whose harm is minor compared to the social benefit of the activity in question can be satisfied in the remedy stage. Cement plant, which was important, paid permanent damages to plaintiffs and was allowed to continue its operations. Petsey v. Cushman – Adopts the balancing test of the Rest. 2d Torts § 829A and emphasizes that the focus is on the unreasonableness of the interference. Threshold Approach to Determine Liability – Focusing on reasonableness of interference. Defendant is liable if harm crosses some level of significance. Seems to be reflected by last sentence of Petsey v. Cushman (“Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated.”) Differs from Rest. 2d Torts – Court is free to issue an injunction or damages, unlike Rest. 2d Torts, where injunctive relief is off the table. Most courts probably follow Threshold Approach, which gives them more leeway at remedy stage. Anticipatory Nuisance For Threatened Harms – If it’s clear that there will be a nuisance, there is no need to, e.g., allow defendant build factory that will only be shut down very quickly. Rarely brought because of high burden of proof. Difficult to assign damages because there is a great deal of speculation as to the magnitude of any expected harm, which is necessary to determining appropriate remedies. Easier for defendants to spend money to avoid harm rather than spend money to remedy harms. Coming to the Nuisance Defense – Discussed in Branch v. Western Petroleum Inc. (see below). Punitive Damages – See pp. 46–47. Trespass See p. 41; E&E 28. Intentional Tort Very similar to private nuisance. Elements – Plaintiff must show that defendant intended to act in a manner that produced an unlawful invasion. Tangible invasion requirement has been rejected as unscientific. Martin v. Reynolds Metals Co. Some courts require “actual and substantial damages.” Bradley. Air Pollution – Nuisance, not trespass, because there was no physical invasion. Strict Liability Rylands v. Fletcher – Origin of strict liability. Reasonable Care – Not a defense for ultra-hazardous activities. Used if someone changes land to use it for an unnatural use. Now, applied to abnormally dangerous activities. Sometimes, employed with ultra-hazardous activities. Possible foreseeability requirement. Rest. 2d Torts § 520. Branch v. Western Petroleum, Inc. – Strict liability was appropriate because the defendants had created an abnormally dangerous and inappropriate use of the land, which was unduly dangerous to the plaintiffs. Coming to the Nuisance Defense – Plaintiffs assume the risk if they come to an area where a nuisance-causing activity is preexisting. Even though the activity predated Branches’ purchase, the Branches could not foresee some of the nuisances that it exacerbated. Branches predecessors had been using the property for the same uses as them, i.e., groundwater for drinking. Should the Branches be allowed to step into the shoes of their predecessors? Neither property would have had a problem if the other weren’t there. Therefore, was it proper for the court to determine that Western had caused the harm? Or should the situation have been analyzed in terms of Coasian reciprocal harms? Coase – Party that can reasonably foresee the consequences should be required to incur the costs. Not all courts have defined the realm of abnormally dangerous activities as narrowly as the Branch court. Rest. 2d Torts § 519 – “(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.” Public Trust Doctrine See 47–51; E&E 31–32; Salzman 266–29. Core – Courts have treated some resources as public commons that belong to all and are irreducible to private ownership. Applied most explicitly to tidelands and other navigable waterways. Illinois Central R. Co. v. Illinois. Protects public uses such as navigation and fishing. Narrow – Cannot be applied to private parties acting without public assistance. Applied to different extents by different states. Origin – Roman and English common law. Oceans and shores, as well as running water and air, were by the law of nature incapable of exclusive private ownership. Incorporated into early American law. Gained prominence in scholarship and case law in 1960s. Not much litigation following Light v. United States (1911). Illinois Central R. Co. v. Illinois. Most famous public trust case. “The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace.” State must preserve property for future public use. Court did not specify origin of the doctrine but said only that the sovereign cannot act so as to infringe the integrity of these public resources. Two Environmental Interpretations Trust is a procedural doctrine that allows courts (a) to decide if political decisions to reallocate resources were made after a reasonable consideration of all alternatives and (b) to remand to the legislature if the political process failed to do so for reasons such as undue special interest influence. Sax. Purely procedural interpretation. Eschews indirect procedural-process route and posits that trust contains a hierarchy of values with ecosystem stability at the top. Substantive Interpretation Trust resources should be allocated to trust uses. States should prioritize environmental interests over other interests, e.g., commercial or developmental interests. Environmentalist Arguments Trust imposes domestic and international law stewardship duties to manage all resources, especially public ones. Slim precedent for extending trust to national parks, forests, wetlands, wildlife, etc. See Light v. United States (“All the public lands of the nation are held in trust for the people of the whole country.”) Congressional Role – “And it is not for the courts to say how that trust shall be administered. That is for Congress to determine.” Light v. United States. Limited role for courts in enforcement. National Audubon Society v. Superior Court of Alpine County Public Trust Doctrine restricts amount of water that can be withdrawn from navigable waterways. Applies as much to waters in a navigable waterway as to the lands underlying the waterway. “The public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the state to protect the people's common heritage of streams, lakes, marshlands, and tidelands surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.” Reflects procedural PTD because CA legislature must take public trust resources into account. Soft Procedural Account – Court stated that CA legislature must protect public trust resources whenever feasible. Court did understand decision to have some substantive component because on remand trial court required water level to remain at or above a certain level. Baseline – Just ordering government to consider alternative courses of action does not require the court to decide on a baseline. Possible Baselines State of nature pre-government-intervention. State of nature pre-human-intervention. Atmospheric Trust Doctrine Public Trust Doctrine applied to climate change and carbon emissions. Atmospheric resources are resources held in trust, and governments have a fiduciary duty to protect those resources for future generations. Some argue that this is the only way to protect atmospheric resources. Borne out of failure of legislatures to tackle climate change in any meaningful way. Chances of theories prevailing are slim. Constitutionally Rooted Environmental Claims Plaintiffs have been 100% unsuccessful at convincing courts to recognize constitutionally based environmental rights. Argument – Even if there is no explicit provision, courts should recognize one through the 5th Amendment, 14th Amendment, or the 9th Amendment. No courts have accepted these arguments. United States v. 247.37 Acres. No affirmative constitutionally based right to clean environment. Constitution is comprised mostly of negative rights, rather than affirmative government duties and public entitlements. Supreme Court is unlikely to change its mind. Separation of powers considerations have acted as an obstacle. Tanner v. Armco Steel. Three increasingly important constitutional dimensions to environmental law serving as resistance to environmental protection: Supreme Court’s active redrawing of federalism doctrine in recent years. Environmental protection can clash with long-recognized property entitlements and lead to regulatory takings claims. State efforts to protect state amenities—and especially regulate and encourage safe handling of waste—can run afoul of Dormant Commerce Clause doctrine. State Constitutions – May provide citizens with right to a clean environment, and some state constitutions do so explicitly. E.g., Pennsylvania. Foreign Constitutions – Sometimes include right to a clean environment. Only Hope – Constitutional amendment, which itself is unlikely. Impact of Constitution on Environmental Law Constitution authorizes federal government to protect environment. Are there limits on that authority? If so, where do they come from? Constitution limits steps that state and local governments can take to protect the environment. Federalism questions. Dormant Commerce Clause Supremacy Clause Defines jurisdiction of federal courts to hear environmental law disputes. Supreme Court has been vigorous in narrowing standing requirements for environmental claims. Constitution recognizes individual rights upon which environmental law may not infringe. Violates due process rights. Amounts to taking of private property without payment of just compensation. Creating Environmental Protections in Constitution Equal Protection Clause/Environmental Justice or Equity or Racism – Government may impose different levels of environmental protection on different segments of the population, but if these are based on, e.g., race, there may be equal protection claims. Executive Order 12,898 – Every government agency must make environmental justice part of its mission. However, as with most executive orders, it is not enforceable in court. Issued by Clinton. Takings Clause – For those whose property rights have been infringed upon due to government authorization of environmentally damaging activity. Easement was created for a private use, not a public use. Even if community has benefited, my property has been taken, and I have not been compensated. Iowa Supreme Court has accepted this view. Environmental Justice Theories 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. Concerns for minorities, poor, at-risk groups, etc. People living in areas with insufficiently stringent environmental protections or near “hotspots.” Legal Bases Title VI – Actionable claims for recipients of federal funds. EPC, Affirmative Constitutional Claims – Not met with success. Executive Order 12,898 – Every government agency must make environmental justice part of its mission. However, as with most executive orders, it is not enforceable in court. Issued by Clinton. Disproportionate Impact – Only substantive standard for measuring existing regulatory programs. All federal agencies must develop agency-wide strategies to identify and address “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” Common Law, etc. During Statutory Environmental Era Reasons Common Law Claims Remain Most major federal environmental statutes contain explicit “savings” clauses that preserve common law remedies. Although a polluter may be acting within the confines of a statute, it still may be liable on common law bases. Economic incentives for less harmful polluting conduct are created when previously externalized harms are internalized. Western Petroleum. International Paper Co. v. Ouellette Facts – The property owners filed suit under Vermont state law against the paper mill operator for creating a continuing nuisance caused by pollutants discharged into the lake. CWA established a federal permit program to regulate the discharge of pollutants. Under the CWA, a regulatory partnership was created between the federal government and the state that was the source of the pollutant. Decision – Clean Water Act held to pre-empt private suit under Vermont common law, but not suit in Vermont Federal District Court under New York law, where New York water pollution allegedly caused Vermont injury. Affected state common law remedies are preempted by Clean Water Act, but source state common law remedies are not. Common Law Environmental Claims Still exist but are rare. Why environmental tort claims are rarely brought and often unsuccessful: High transaction costs. Difficulty in proving that environmental harm caused injury. See pp. 61–62. Regulatory Design of Environmental Law Background Laws reflect goals of different policy actors, different states of knowledge about efficacy of particular regulatory designs, and different responses to events prompting statutory enactment or amendment. Pragmatic, incremental adjustments. True of environmental laws. Protect dispersed citizens and environmental interests, often to detriment of industry. Environmental Law Goals, Triggers & Strategies Common Statutory Elements Environmental protection goals. Rejection of exclusive reliance on common law remedies. Common law system has shown itself to be inadequate. Avert environmental risk rather than just react to harm, as common law remedies do. Common law is inadequate to prevent harm in the first place. Rely on administrative agencies for statutory implementation—agencies that have responsibilities to develop, administer, and enforce regulations. Different statutes are geared toward different environmental goals. Public health, e.g., CAA, CWA. Protect natural ecosystems or components thereof, e.g., ESA. Compensate adversely affected persons, e.g., CERCLA. Not the focus of most environmental laws. Force policymakers’ consideration of adverse environmental effects before policy action is taken, e.g., NEPA. NEPA – Stop-and-think law. Goals Clean Environment – CWA, CAA, ESA, CERCLA. Public Health – CAA, CERCLA, Safe Drinking Water Act, pesticide and food laws and chemical regulations. Fairness or Remedying of Damages – Most laws focus on reducing certain risks and preserve right to bring common law actions, but do not include their own separate right to damages. Triggers Triggers (Risk Assessment) v. Standards (Risk Management) Trigger – Factual finding or evidence that is necessary to trigger an agency’s authority to act or a regulated entity’s compliance responsibilities. Standard/Strategy – Mechanism that an agency with authority to act will use to move toward the statutory goal. Standard in turn determines nature of the obligations imposed on regulated entities. No Threshold – Impose action even in the absence of assessed risk. Congress already has made a determination that risk exists and forces entity to act. E.g., prohibition of food additives known to be carcinogenic in humans or animals. Risk-Based Thresholds – Allow government action only upon determination that risk exceeds statutory threshold—usually a risk to health or environment. E.g., CAA, CWA. More common than no threshold. Degree of risk varies from statute to statute. Thresholds Any Risk Threshold Significant Risk Threshold – NEPA with its significant environmental harm threshold. Unreasonable Risk Threshold – Trend to reflect balancing of factors, including economic costs and environmental benefits. Regulatory Designs & Strategies (or Standards) Economic Incentives & Market-Based Awards of damages to cause polluters to internalize costs; taxing harmful activity; subsidizing desirable conduct. E.g., cap-and-trade program of CAA. Health-Based (or risk-based or ambient-quality-based) Agency must identify a level of cleanliness that it wants to achieve, e.g., air clean enough to breathe without getting sick. Agency adopts controls or authorizes another agency to adopt controls to achieve its goal. E.g., CAA and its ambient-air-quality standards; CWA. Technology-Based Agencies demand that regulated agencies achieve a level of performance equal to the best technologically feasible at a point in time. “Do the best you can” approach. Industry-wide, not individual. Does not require reverse-engineering of ambient-quality-based approaches. It just entails picking the best option and mandating that across the board. Criticism – May not go far enough toward achieving your goal. E.g., CWA. Technology-Forcing Legislature may require certain pollution reduction standards without knowing about the technology to achieve them. E.g., CAA Technology Mandates Mandating use of a particular technology. Usually, a fallback mechanism. Open-Ended Balancing Striking a balance that an agency deems to be appropriate. Give administrative agencies a lot of discretion in prioritization. E.g., CWA. Cost-Benefit Balancing Goal – Economically efficient environmental protection. Very few environmental statutes adopt this standard. Generate and Disclose Information E.g., NEPA, which mandates that entities must prepare EISs and disclose them before taking action; Emergency Planning and Community Right to Know Act, which requires companies to disclose chemical components of toxic substances to a government agency, which then posts it on a website to inform the local residents. No direct regulation. Liability-Based E.g., CERCLA, which imposes huge cleanup costs. Phase-Outs Require phasing out of risky products or activities. Implementation & Enforcement Design Choice Whom does the statute regulate or affect? Who is the target? E.g., ESA targets more than one group. What are the consequences of noncompliance? Payment of damages to those adversely affected? Almost no environmental statutes work this way. Payment of civil penalties or criminal fines? Almost all environmental statutes work this way. Are we trying to compensate anyone, or are we trying to force polluters to internalize costs? Jail? Does the statute dictate or induce? If it dictates, how? Prohibitions? Emissions trading? Does it allow the use of incentive-based techniques such as emissions trading? What are the roles of the federal government and the states? Is state action preempted? May state action supplement federal action? Does the allocation of authority raise any constitutional, federalism concerns? Are provisions self-implementing or delegated to agencies, and how are requirements imposed on polluters? Most laws delegate implementation to governmental institutions. Some laws delegate presumptive implementation authority to states. Government-issued permits. Enforcement authority? Enforcement occurs by all levels of government (federal authorities and states) and by citizens. How are legal obligations created? Federal agency promotes regulation, and states may be able to assume implementation or enforcement roles. Legal obligations are rolled into permits that are themselves subject to challenge. Violations of permit obligations are separately subject to challenge. Constitutional Federalism Issues Introduction Federal Power to Protect Environment – Usually concerns federal power under Commerce Clause. Delegated Program Federalism See pp. 125–26. A form of cooperative federalism, which is reflected by the fact that most federal laws, especially pollution laws, carve out significant roles for states. Some statutes delegate to federal agencies standard-setting responsibilities, but leave it to states to implement those standards. E.g., CWA (NPDES); CAA (SIPs). Savings Clauses – Preserve existing law—typically state common law and parallel or completely independent, non-conflicting bodies of state law. Sovereign Immunity Doctrine – May immunize states from monetary liability. State Sovereign Immunity – Rooted largely in 10th and 11th Amendments, as well as pre-constitutional understandings of state power. Dormant Commerce Clause – Prohibits state action that could impede interstate commerce, even in the absence of any expressly conflicting federal law. Preemption Doctrine – Limits what kinds of state actions are permitted in areas addressed by federal law. Rationales for Federal Environmental Regulation Interstate Externalities – Desire to avoid interstate pollution. Most well accepted, least controversial justification for federal environmental protection. Air and water pollution move interstate. Upstream and upwind states enjoy the benefits of environmental protection and economic activity but have little incentive to control the environmental harms that their activities produce. Downstream and downwind states have strong incentives to regulate pollution but would have no means to do so without federal environmental protection statutes. Thus, federal policy is needed to resolve interstate pollution disputes. Matching Principle – Regulator with jurisdiction most commensurate with pollution’s effects should have regulatory primacy. Other Justifications – Interstate business dynamics; resources exceeding a single jurisdiction; and inter-jurisdictional competition. Economies of Scale & Resource Pooling Economies of Scale – Gathering necessary information to adopt effective and efficient environmental regulations. It is silly to have 50 state governments doing research on the same environmental questions. No need to reinvent the wheel. Federal government can effectively research environmental questions. It develops expertise over time, which promotes efficiency. Free Rider Problem – Many states would sit on their hands and do nothing and would utilize the research done by other states. This could result in all states doing nothing, each expecting to rely on the work of other states. Resource Pooling – Relates to implementing environmental protections. It would be more difficult for private businesses to circumvent regulations if the federal government implemented them. Think: collective bargaining. Race to the Bottom Origin of Problem – Each state wants to have a thriving economy. To have a thriving economy, a state must attract businesses and not scare them away. One way to attract businesses is to deregulate and reduce operation costs. Hence, the race to the bottom. Solution – Federal government establishes a floor to environmental regulation, thus reducing the length of the race to the bottom. States then may adopt stricter standards if desired. Whether the race to the bottom actually exists, Congress has acted on the belief that it does. Some scholars argue that an absence of federal regulation does not promote the race to the bottom. See pp. 86–88. Centralization v. Decentralization Most environmental laws contain both centralized and decentralized elements. Hybrid Schemes – E.g., CAA. Numerical Standards – Whether for ambient environmental levels or category of industry, they usually are federally established. Decentralization Arguments Better reflects geographical variations in preferences for collective goods. Facilitates experimentation with different policies. Encourages self-determination, public participation, and collective education. Diseconomies of Scale – Regulators are not sensitive to small-scale variations and differences in priorities. Competition among states will lead to more efficient delivery of government services. Centralization Arguments Need for federal regulator to internalize costs of environmental harms. Desire for environmental protection across the country. Rooted in belief of a right to a clean environment. Will reduce the number of venues in which policy and legal battles occur. Administration problems with decentralization – Confusion regarding responsibility; misdirection of demands for regulatory protection Political, Economic & Historical Rationales for Federal (or State) Regulation Public Choice Rationale – Uses assumptions about the economic “rational actor” to predict how political and market actors will behave in political settings to further their goals. Used to advocate state or federal regulation. First Mover Advantage – Actors perceive federal legislators as the first place to turn to for environmental protection. Greater attention to issues, press coverage, and surveying of citizen preferences at federal level. Arguments for State Regulation – See p. 91. Achieving Uniform Regulation & Minimizing Transaction & Compliance Costs Uniform standards reduce transaction costs, especially for actors in interstate commerce. This is why Congress adopted uniform standards for vehicle emissions in the 1960s. Different state standards would produce chaos. Industry may prefer federal regulation for these reasons: certainty, predictability, and uniformity. Usually, industry will accept federal regulation only if more stringent state standards are preempted. See CAA. Avoiding Not in My Backyard Policies States impose stringent, exclusionary regulations so that, e.g., nuclear waste sites will not be located within their borders. Result: no nuclear waste sites are built anywhere. Illustrates need for federal regulation to address this matter. Federal government will force states to accept, e.g., nuclear waste sites but will support those states with money and technology. Process-Based Justifications Federal law will better balance environmental protection and economic growth than state law. Organizations like the Sierra Club are able to direct their arguments to one governmental agency rather than 50 different ones, thus achieving a better balance. [See “Political, Economic & Historical Rationales for Federal (or State) Regulation” above. See also pp. 90–91.] Rationales for State Environmental Legislation Rationales Individuals have greater access to state and local policymakers than federal policymakers. Thus, individual action may be more effective on the state level. State and local governments are more familiar with local needs. States can adapt regulations more easily to local conditions. Some states, e.g., CA, have taken the lead in adopting environmental regulations when the federal government has been reluctant to do so. E.g., climate change. This shows that states are capable of enacting meaningful environmental regulations. Also undercuts Race to the Bottom argument in favor of federal regulation. Reasons for States to Act as Environmental Leaders CA is a big market, and if it implements progressive environmental regulation, this will affect how manufacturers, e.g., build cars. The effects of CA’s regulations will be widespread. Car manufacturers will not want to avoid the CA market. Encourage “green” business. Politicians may want to market themselves as environmentalists. State may be more susceptible to a certain kind of environmental harm. E.g., MA and rising ocean levels. Mass. v. EPA. Encourage tourism. E.g., CA, FL. Purely economic reason. Qualify for Federal Resources – Federal government sometimes distributes unrestricted funds if states take certain environmental protection actions, and states want these. Restore useless property to productive use. E.g., brownfields. Minimize intrusive federal regulation. States think that, if they don’t act, federal government will eventually. Two reasons: Federal regulation may be more onerous than state regulation. States want to maximize their own discretion. Practical Limits on Federal Environmental Regulation Money – Federal government has a limited amount of money to spend on environmental protection. Hence, federal government attempts to enlist states in environmental protection. States resist for a number of reasons: different proprieties; state interests are not served by environmental protection; etc. 10th Amendment is a big obstacle to the federal government strong-arming the states into implementing environmental protection programs. [See below; New York v. United States.] Constitution & Environmental Policy Commerce Clause, art. I, § 8, cl. 3 – “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” Source of federal power to regulate environmental policy. Most important constitutional provision in adopting federal environmental regulatory statutes. Most modern federal environmental laws were passed pursuant to Commerce Clause power. Imposes implicit limits on state regulatory power, i.e., Dormant Commerce Clause. Property Clause, art. IV, § 3, cl. 2 – “The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Authorizes Congress to implement rules and regulations relating to property owned by federal government, e.g., national parks. Treaty Clause, art. II, § 2, cl. 2 – “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” E.g., Migratory Bird Treaty and then Congress passed Migratory Bird Treaty Act; portions of 1990 Amendments to CAA and its prohibition on use of chemicals that deplete ozone layer. Treaty Clause would be important if U.S. ever adopted a treaty geared toward climate change. 14th Amendment, § 5 – Gives Congress power to adopt legislation guaranteeing equal protection of laws. Supremacy Clause, art. VI, cl. 2 – Explicitly subordinates state law when it conflicts with federal law. Limits on Scope of Federal Government to Protect Environment Background Concepts Curtailing Federal Power – E.g., federal government is one of limited powers and may act only when such action is affirmatively prescribed. Takings Clause, 5th Amendment – “[N]or shall private property be taken for public use, without just compensation.” Some regulations might amount to takings of private property. 10th Amendment – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” A truism. Powers not delegated to the federal government are reserved to the people. Two Interpretations of 10th Amendment Federal government is a government of limited powers. Cannot act without a specific grant of authority in the Constitution. A statute would be constitutional if its exercise were supported by a specific constitutional provision. Question – Is the contested statute supported by an enumerated power, e.g., the Commerce power? If so, then the 10th Amendment has nothing more to say. Beyond that, questions become political. If people are unhappy with a statute, then they should attempt to change it through the democratic process. No role for the courts in protecting state sovereignty. 10th Amendment imposes independent limits on the scope of federal power. That a statute is supported by an enumerated power does not end the matter. It still may violate the 10th Amendment if it encroaches on core state sovereignty. First Question – Is the contested statute supported by an enumerated power, e.g., the Commerce power? If not, it is unconstitutional. Second Question – Does the statute infringe on a traditional area of state sovereignty? If so, it is unconstitutional. Significant Role for Courts – Courts must answer both questions, especially the second one. Criticism – Some have argued that this model is nonsensical on a textual level. If federal government acts pursuant to a delegated power, 10th Amendment does not apply. Look closely at the language. Response – Even enumerated powers are governed by Necessary and Proper Clause. A necessary act may not be proper if it infringes on a traditional area of state sovereignty. Both interpretations have been advanced in recent times. New York v. United States exemplifies the inherent confusion. A few federal environmental statutes have been invalidated on 10th Amendment grounds. Acorn v. Edwards, 81 F.3d 1387 (5th Cir. 1996) – Invalidating law forcing states to remove lead from schools or face civil liability. Impermissible forcing the states to implement a regulation of private conduct, rather than regulating the private conduct directly. Otherwise, the 10th Amendment has played a minor role in federal environmental regulation. New York and Printz extended the scope of the 10th Amendment in invalidating federal legislation, but Reno soon limited their reach. See pp. 119–20. Cases Gibbs v. Babbitt (4th Cir. 2000) Facts – Concerned taking of red wolves, protected under the ESA, on private lands and whether Congress can regulate that activity. Lopez and Morrison reestablish that commerce power contains “judicially enforceable outer limits.” Opponents of federal environmental legislation now see a whole new day. In the wake of these cases, they may be more successful in arguing that federal environmental statutes exceed Congress’ authority under the Commerce Clause. Deference to legislature—unless it has plainly exceeded its constitutional bounds. Morrison. Three Categories of Activities That Congress May Regulate Under Commerce Power – Lopez Channels of interstate commerce. Instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. Look to aggregate effects of interstate activities. Wickard v. Filburn. Court rejected first two Lopez prongs. Applied third prong, however: killing of red wolves on private land has substantial effects on interstate commerce when the intrastate effects are aggregated. Two reasons: Implicates a wide variety of commercial activities. E.g., interstate tourism related to red wolf viewing; “howling” events; scientific and research community; interstate trading of wolf pelts; etc. Protecting red wolves on private land will allow for research and development that will be beneficial to interstate actors. Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97 outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. 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