Environmental Law Professor Robert Glicksman

Professor Robert Glicksman

1. 
   Environmental ills are very pervasive & market actions are unlikely to deter or correct such harms  environmental law.
   
2. 
   Two Main Branches of Environmental Law
   
   1. 
      Pollution Control
      
      1. 
         Protects public from health risks associated with toxic exposure.
         
      2. 
         Applies most strongly to private entities, but also to government.
         
   2. 
      Natural Resource Management
      
      1. 
         Protects biodiversity and ecological integrity.
         
      2. 
         Promotes sustainable development.
         
      3. 
         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.
            
   3. 
      Commonalities Between Branches
      
      1. 
         Government agencies play important roles as regulators or resource owners.
         
      2. 
         NGOs play important roles. Assure that federal agencies assign responsibility properly and carry out duties.
         
      3. 
         Courts – Oversee administration of and compliance with environmental laws. Handle citizen suits.
         
      4. 
         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
   
   1. 
      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.
      
      1. 
         Understand the consequences, and impose the costs appropriately.
         
   2. 
      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.
      
      1. 
         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.
         
      2. 
         Three Spheres of Sustainability – Environmental, economic, and social. See Glicksman’s Power Point slides.
         
      3. 
         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.)
   
   1. 
      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?
   
   1. 
      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.
   
   1. 
      Three Objectives – See p. 3.
      
      1. 
         Glicksman – Seeks to change people’s ways of viewing environment.
         
   2. 
      Should value ecosystems for utilitarian or ethical reasons.
      
   3. 
      Frustrations
      
      1. 
         Sustained industry and development opposition to all forms of government regulation.
         
      2. 
         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
   
   1. 
      Old – Source of untapped resources.
      
   2. 
      New – Intrinsically valuable.
      
9. 
   History of Environmental Law
   
   1. 
      History of Environmental Law Generally – See pp. 62–76.
      
   2. 
      Preservation Movement
      
      1. 
         Concerned with preserving large areas of public land that remained wilderness areas as national parks and curbing use of public lands.
         
      2. 
         Ultimately lost out to the Conservation Movement.
         
   3. 
      Conservation Movement
      
      1. 
         Wanted to make science compatible with democratic values and this counter social Darwinism.
         
      2. 
         Concerned with moderating the rate of present resource use to ensure plentiful future supplies.
         
      3. 
         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.
            
   4. 
      Environmental Decade (1970s)
      
      1. 
         Most major federal environmental statutes passed.
         
         1. 
            Most environmental law is positive law.
            
      2. 
         Catalysts
         
         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.
            
      3. 
         1969 – NEPA; first major federal environmental statute.
         
   5. 
      Scenic Hudson Pres. Conference v. FPC (1965)
      
      1. 
         First environmental law case.
         
      2. 
         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.
            
   6. 
      Clean Air Amendments Act of 1990 – Last major federal environmental legislation.
      
   7. 
      Second Era of Environmental Law – Highly politicized.
      
      1. 
         Recent Roadblocks and Logjams in Environmental Law – See pp. 72–76.
         
   8. 
      Dramatic events often trigger rapid responses in the form of new environmental regulation.
      
      1. 
         E.g., BP oil spill, tsunami in Japan, Exxon Valdez oil spill, Chernobyl, etc.
         
      2. 
         BP oil spill and tsunami in Japan did not spur any new legislation, unlike previous environmental incidents.
         
10. 
    Controversy Surrounding Environmental Law
    
    1. 
       Equity – Imposes constraints on current activity for benefit of future generations.
       
    2. 
       Ingrained Mindsets – “A swamp is a swamp, not a valuable wetland, and I won’t hear otherwise.”
       
    3. 
       Redistributes wealth.
       
    4. 
       Cause – Difficult to trace a clear causal connection between a potentially harmful activity and an environmental harm. Difficult to take action without that connection.
       
    5. 
       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.
       
    6. 
       Costs – Do costs of environmental protection exceed its benefits?
       
    7. 
       Law may impose costs in a controversial way, e.g., restricting private property owners from building in particular ways. Frustrates commercial and industrial development.
       
       1. 
          Property rights movement is a strong opponent of environmental law.
          

1. 
   Economic Rationale for Pollution – Lack of clearly assigned property rights in common resources. Scarcity and resulting discipline and market change may not be perceived if environmental amenities and their destruction are off the books.
   
2. 
   Three contexts in which economic analysis is relevant to environmental law:
   
   1. 
      Explains why environmental harms occur.
      
   2. 
      Justifies government intervention and determines appropriate level of intervention when free market fails.
      
   3. 
      Identifies optimal methods for preventing environmental harm.
      
3. 
   Premises
   
   1. 
      All resources are scare and should be allocated efficiently.
      
   2. 
      Efficient Allocation – Maximizes value of resources.
      
      1. 
         Adam Smith – Individual actors acting in self-interest will benefit the public interest through the machinations of the “invisible hand.” Should allow private deals.
         
         1. 
            Counterargument – Analysis is valid only if free market works perfectly, and free markets are not perfect. Economists have identified flaws, which justify government intervention to achieve efficient allocation of resources.
            
      2. 
         [See Flaws of Free Market below.]
         
4. 
   Flaws of Free Market
   
   1. 
      Incomplete Information – Concerns availability of accurate information. Without complete information, people may buy goods that they would not buy with complete information.
      
   2. 
      Transaction Costs – Costs imposed on uninvolved third parties following a deal between two other parties.
      
      1. 
         E.g., negotiations, figuring our appropriate solutions, finding people that will cooperate, etc.
         
      2. 
         Hurdle to market solutions.
         
      3. 
         [See Collective Action Problems below.]
         
   3. 
      Externalities
      
      1. 
         E.g., Air Pollution – Factor is emitting greenhouse gases.
         
         1. 
            Air – A commons.
            
         2. 
            Pollution – An externality.
            
            1. 
               Defining Characteristic – Polluter is not forced to bear any adverse consequences (or even the bulk of the adverse consequences). Cost of the pollution (1) is external to its decision-making process and (2) is imposed on people external to the transaction between producer and consumer of polluting product.
               
      2. 
         Negative Externality – A human-made, un-bargained for, adverse consequence.
         
         1. 
            When Negative Externalities Occur – Companies fail to factor costs of pollution, adverse health consequences, etc. into prices of its goods. Because its goods are cheaper to produce, its goods will be overrepresented in the market.
            
            1. 
               Where there are systematic externalities, price does not accurately reflect public preference for goods.
               
         2. 
            Internalize cost of pollution  no longer a negative externality.
            
            1. 
               Methods of Internalizing Negative Externality
               
               1. 
                  Consensual Bargaining
                  
               2. 
                  Regulations
                  
               3. 
                  Common Law Causes of Action
                  
      3. 
         Positive Externality – Party may create a good enjoyed by many but for which the creator is unpaid.
         
      4. 
         Externalities are pervasive, and government regulation is needed to minimize them.
         
5. 
   Problems with Pollution/Groups – Collective Action Problems
   
   1. 
      Example – Factory’s pollution is harming many neighboring properties.
      
      1. 
         $1500 = Factory owner’s cost of control
         
      2. 
         $10 = Harm to each neighboring property
         
   2. 
      Because of the low level of individual harm and the transaction costs, the property owners are unlikely to work together.
      
   3. 
      Free Riders – Each neighbor thinks that another neighbor will do something that will help him or her, and so, he or she does nothing.
      
   4. 
      Opposite Effects for Polluters
      
      1. 
         Lower transaction costs.
         
      2. 
         Fewer actors  easier to cooperate.
         
      3. 
         Higher potential cost of collective inaction.
         
6. 
   Tragedy of the Commons (Hardin) – See pp. 5–10.
   
   1. 
      Without legal constraints, those with the ability to pollute will do so.
      
   2. 
      Because of the benefits of doing so, all rational actors attempt to impose costs on the environment, but any one actors bears only a fraction of the environmental costs. They want to pollute for free.
      
      1. 
         Refutation of Adam Smith – Individual actors acting in self-interest will not benefit the public interest.
         
   3. 
      Logical Result – Environmental catastrophe.
      
   4. 
      Solution – Use legal system to remove externalities.
      
      1. 
         Coercive laws (tort liability, e.g., nuisance).
         
      2. 
         High taxes, e.g., carbon taxes.
         
      3. 
         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.
            
   5. 
      Morality – TOTC shows that morality is “an act that is a function of the state of the system at the time it is performed.”
      
   6. 
      Regulatory Commons Problem – See p. 9.
      
      1. 
         No one regulator can effectively regulate environmental harms.
         
      2. 
         Every regulator thinks that every other regulator is doing the job.
         
7. 
   Coase
   
   1. 
      Reciprocal Nature of Harm – Harmful effects arise when two parties whose resource uses are incompatible compete for right to use same resource.
      
   2. 
      Primary Goal – “Avoiding the more serious harm.” On which party is it more efficient to impose costs?
      
      1. 
         “The real question that has to be decided is: should A be allowed to harm B or should B be allowed to harm A?”
         
      2. 
         Parties will bargain for an efficient result regardless of the initial distribution of rights.
         
   3. 
      Transaction Costs
      
      1. 
         Always exist.
         
      2. 
         Often the key determinant in whether consensual bargaining will result in socially efficient outcomes.
         
   4. 
      Fundamental Insight – Presence of externalities does not automatically justify government regulation.
      
      1. 
         Detracts from “polluter pays” principle.
         
8. 
   Values – See pp. 15–16.
   
   1. 
      All costs, including opportunity costs, can be monetized.
      
      1. 
         Can be measured by individual preferences (proxy for market preferences).
         
      2. 
         No dichotomy between monetized and non-monetized costs.
         
   2. 
      Total Economic Value = Use value + Non-Use Value.
      
      1. 
         Resource Economists
         
9. 
   CBA – Role of Economic Analysis in Determining Optimal Level of Regulation
   
   1. 
      Key Costs – Are the costs of environmental regulation worth its benefits?
      
      1. 
         Cost-benefits analysis (CBA) often is used.
         
      2. 
         Typically, regulation should stop at the point at which the costs it imposes are greater than the benefits that it yields.
         
   2. 
      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.
      
      1. 
         Proponents – CBA is neutral. Does not prefer or disadvantage regulators.
         
      2. 
         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.
         
         1. 
            But under statutes like CAA, Congress requires actors to achieve the highest technologically feasible levels of protection. This shows that Congress is concerned with cost and has not disregarded it.
            
         2. 
            But some executive orders mandate use of CBA, but they may do so only to the extent that the statutes allow. STATUTES TRUMP EXECUTIVE ORDERS.
            
   3. 
      Why has Congress not embraced CBA more fully? – CONTROVERSIAL
      
      1. 
         Its accuracy with regard to regulatory costs and benefits is questionable. Accurate valuation of costs and benefits is difficult—if not impossible.
         
         1. 
            Agencies’ figures frequently come from regulated companies themselves. Of course, these companies will skew the quotes.
            
         2. 
            How much is it worth saving the life of people or plants or animals? Some sources have said that one human life is worth $7 million. Is a young person’s life worth more than an elderly person’s life?
            
            1. 
               Suggests that it is ludicrous to place a monetary value on benefits of environmental regulation.
               
            2. 
               Monetizing value of human life is morally objectionable. It commodifies people.
               
         3. 
            Environmental regulation seeks to prevent future environmental harm, and so, some benefits often are speculative. Present benefits and future benefits often are not of equivalent, one-to-one value.
            
            1. 
               Discounting of benefits is biased against environmental protection. Comparing present costs and future benefits overemphasizes the size of the costs.
               
               1. 
                  E.g., at a discount rate of 6%, value of 100 lives in 2111 is approximately 0.002 lives in 2011. Thus, value of any environmental regulation is negligible.
                  
      2. 
         CBA ignores distributional concerns, creating environmental justice problems. Some regulatory options may distribute a disproportionate share of costs to one group and a disproportionate share of benefits to another. CBA does not take account of these inequities.
         
         1. 
            Standard Measure of Value – Willingness to pay for environmental improvement. Thus, environmental benefits protecting the rich are valued higher than those protecting the poor because the rich are willing to pay more.
            
      3. 
         Lack of transparency.
         
         1. 
            Why is transparency beneficial?
            
            1. 
               Promotes legitimacy and accountability.
               
            2. 
               Maximizes opportunities for public participation and input.
               
         2. 
            Why does CBA not promote transparency?
            
            1. 
               CBA is understandable to a tiny percentage of electorate. Opponents of CBA prefer decision-making policies that allow participation by members of the general public.
               
   4. 
      CBA can help society make better regulatory decisions and choose the most efficient regulatory options.
      
10. 
    Emission Trading – Emission trading schemes are more effective at achieving environmental regulation than traditional, uniform regulations.
    
    1. 
       [Random note from Glicksman.]
       

1. 
   Ecology – Concerns structure and function of nature, considered in a grand perspective.
   
   1. 
      Initially thought of great utility to environmental policymakers.
      
      1. 
         Initially promoted idea that ecosystems had natural equilibrium states.  Normative basis for environmental law. Environmental regulations were geared toward maintaining these equilibriums.
         
      2. 
         Current View
         
         1. 
            Natural equilibrium states are no longer accepted.
            
         2. 
            Nature is in flux.
            
            1. 
               Fencing off nature from human contact is insufficient.
               
         3. 
            Question – Are changes in nature caused by nature itself or human activities? (E.g., climate change caused by greenhouse gases.)
            
         4. 
            Not clear whether environmental change is beneficial or harmful. How will climate change impact the earth?
            
   2. 
      Not useful during 1970s.
      
      1. 
         Non-prestigious branch of science.
         
      2. 
         Application of smaller units of analysis detracted from its holistic view of nature.
         
2. 
   “Silent Spring” (Rachel Carson)
   
   1. 
      Paradigm-shifting book. Milestone for environmental law.
      
   2. 
      Called for caution in economic development.
      
   3. 
      Must account for ecological life forces.
      
3. 
   Science Generally
   
   1. 
      Uses
      
      1. 
         Provide solutions to environmental problems.
         
      2. 
         Identify thresholds above which there exist risks to human health.
         
   2. 
      Advocates of environmental regulation always cite scientific evidence; critics of environmental regulation argue that regulations are not based on sound science.
      
4. 
   Philosophy
   
   1. 
      Antiquated View – Nature exists for humans to dominate and exploit.
      
      1. 
         Aldo Leopold contested and emphasized that humans are members of a biotic community. Holistic view.
         
   2. 
      Eastern religions have not safeguarded the environment. E.g., Chinese air quality is terrible.
      
   3. 
      Ethical Argument – Humans have a responsibility to preserve, rather than destroy, the environment. Leopold’s land-ethic. Stewardship.
      
      1. 
         Legal Consequence – Supporting assertions of police power to protect environment.
         
      2. 
         Private Property – Stumbling block to environmental stewardship.
         
         1. 
            But Green Property Theory – Incorporates stewardship into individualistic, property theory.
            
   4. 
      Present generation has a responsibility/duty to future generations.
      
      1. 
         Do future generations have rights? Major philosophical controversy. See p. 27.
         
      2. 
         [See Public Trust Doctrine below.]
         
   5. 
      Ecosystem Rights – Begins from premise that humans are members of a biotic community. See p. 26.
      
5. 
   Public Trust Doctrine – Certain resources are preserved for public use, and government is required to maintain them for the public's reasonable use.
   
   1. 
      Basis for limiting resources, sales, and consumption to protect future generations.
      

1. 
   What is risk?
   
   1. 
      Definition – Probability that a particular activity will cause harm to health or the environment multiplied by the severity of the harm if it occurs.
      
   2. 
      R = P * S
      
   3. 
      Experts measure risk differently than laypeople do. Experts take a utilitarian, numerical view. E.g., how many people will die? (Annual mortality.) Laypersons take account of a broader array of values. E.g., did an actor assume the risk voluntarily?
      
      1. 
         People find risks more outrageous if an individual is helpless to control it or has not voluntarily assumed it. Familiar risks are less distressing than exotic ones. Diffuse risks are viewed as less serious than concentrated ones.
         
   4. 
      Different environmental risks can influence policy outcomes.
      
2. 
   
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