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DEPARTMENT OF PUBLIC POLICY

POL 661: Environmental Law


Lecture 6: Pollution: Overview and Private Controls Introduction
Pollution comes in many forms and from different sources. For example, the Clean Air Act, a federal statute created to control air pollution, identifies certain criteria pollutants as a means of determining air quality. One criteria pollutant for air quality is particulate matter; loosely translated as the concentration of stuff in the air that can get into our lungs and cause ailments. This stuff can come from a variety of sources; it can certainly come from human activities such as the burning of coal to create electricity, or from the combustion of gasoline and diesel to move automobiles. However, particulates can come from other places as well, for example through a volcano eruption or high winds carrying sand and dirt over a particular area. While humans might not be able to do too much to prevent natural background rates of air pollution via particulate matter, we can do something about our own activities contributing to air quality issues. This is the heart of what we might call pollution control, controlling the human aspects of creating and distributing pollution. What we will see over the next two learning modules is different ways of attempting to control pollution. Categorically those ways are separated into public (government initiated) and private (citizen initiated) control mechanisms. Private controls hail mainly from our common law tradition (like nuisance and negligence), while public controls are centered in our statutory law tradition (like the Clean Air Act). Private controls will be discussed later in this module, while public controls will are taken up in the next module. First, an overview of the problem of pollution is summarized so we might gain greater insights into the ways in which different forms of environmental law work to solve pollution as a problem. As you move through these materials remember to bring along your policy hats, particularly any conceptual frameworks that help you understand how these different legal frameworks (private and public) are applied to solve the problem of pollution; we might find certain frameworks are more comprehensive in their approach to the problem, and we might also find some equity issues with the application of certain legal frameworks.

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Overview to Pollution
We are primarily concerned with those sources of pollution that create an imminent threat to human health.1 This history behind pollution controls in the United States has evolved from preventing disease from unsanitary conditions (the basic concept of human health concerns) to a deeper appreciation of the interconnections between human activities and the impact of pollution on baseline environmental conditions. To help place this evolution of environmental regulation into perspective, let us consider two principles of systems theory as applied to the environment. The first principle focuses on the idea that a system operates (and is impacted) by focusing on the flows of energy through the system. A basic example of these flows is presented in the following figure:

Note the system component in the model above and the three flows that can impact the component (inflows, outflows, and feedback loops). If the system component were a specific area, like a town, and we were interested in monitoring the waste flows generated by humans in the town, then we can model the flows by looking at the waste inflows into the town, and the outflows from the town. If a town did not have a sewage treatment system, for example, then we might expect the inflows to exceed outflows (the waste
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Recall the priority listing in environmental laws generally (from Module 1):

Highest Priority: Immediate threats to human health (Hazardous Substances Act, Clean Air Act, Clean Water Act); Secondary Priority: Secondary effects to living conditions/sustainability (National Environmental Policy Act, National Forest Act); Lower Priority: Environment for environment sake (Endangered Species Act, Marine Mammal Protection Act, Wilderness Act).

Page 3 of 14 would be kept in the system component (the town). This can lead to a feedback loop that includes increased disease from unsanitary conditions (historically one of the problems of not having a waste removal system). Thus, a solution to the problem may be to increase the outflows of waste from the town to match the inflows (by creating a separate sewage transport system for example). Doing so would change the feedback loop by showing a decrease (we hope) in the amount of disease and unsanitary conditions in the town. Thus, by thinking systematically (focusing on the flows, interactions, and feedbacks) one can see the seeds of environmental law take place.2 The second principle has to do with equilibrium theory: the idea that a natural system has limits. When the limits of natural system are exceeded (threshold crossed), there is a potential that the system can move to a new equilibrium state. This concept was identified and explained earlier in this course and is visually recreated here:

One can also see a Tragedy of the Commons scenario unfold as the precursor to the need for government intervention (sanitary standards, creation of a public sewer system). Prior to a sewer system in place, each resident of the town has an incentive to remove their individual waste from their immediate zone of influence (dwelling and adjacent area). The goal, individually, is to move waste away from this immediate area, but there is a lack of concern of what happens to the waste after it is removed from this immediate area. As such, each individual wishes to externalize the cost of the waste to somewhere else; the individually rationale decision to remove waste leads to a collectively irrational result. When all members of the town do this, the waste problem becomes a collective problem that cannot be solved by any one person. Thus, government must often step in to correct this failure of the commons and through this need to correct these failures we find the seeds for environmental laws to exist.

Page 4 of 14 Concerning pollution, the goal of regulation has expanded in recent times from focusing solely on immediate human health issues (still a priority of course) to thinking about the impacts of pollution (in the aggregate) on human health and wellbeing both today and in the future. The idea that a stress to the system can result in an equilibrium shift has become part of environmental planning and thus is increasingly represented in our environmental laws as an outgrowth of expanding policy goals. In many ways this expanded role of environmental law is based on an increase in our understanding of the science behind natural systems and the impacts (feedback loops) that can occur when a system is out of balance with background rates.3 Understanding this evolution in thought is an important part of connecting what we currently see in terms of environmental laws and where we think those laws might be headed in the future (policy directions). Considering these differences is important as you review the two major categories of pollution control discussed in the text: private and public controls. For example, which category of controls do you think will play a dominant role in our future management of environmental issues? Think about this as you move through the materials and reflect upon them.

Kinds of Pollution: Water and Air Water Pollution


Today water quality is primarily controlled in the U.S. through the Clean Water Act (CWA), a public control mechanism.4 The CWA focuses on water quality as the goal. So in some sense the CWA takes a systems approach to ensuring clean water; the Act focuses on determining the quality of the water (the current state of the system component) and then, depending on the quality of the water found, looks at potential inputs, outflows, and feedback loops to determine what is impacting water quality of the particular component (water body) under examination. Most of control mechanisms established in the CWA are focused on the inputs into the system (human-based inputs particularly). Roughly these inputs are categorized in two ways: point sources and nonpoint sources. Point sources are things that we can identify with some precision, like a pipe discharging unwanted waste material from an industrial factory into a river; the pipe
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Today, pollution control is taking on a whole new meaning. In fact, the US Supreme Court has recently determined carbon dioxide (a major component to climate change) should be considered a pollutant under the Clean Air Act. EPA has followed this lead in 2012 establishing rules (regulations) that would limit the amount of carbon dioxide capable of being released by major industrial facilities, particularly electricity generators. This suggests that our interpretation of pollution is changing to encompass things that may not be a direct threat (immediate harm), but a threat sometime in the future. We will go over water and air pollution, and save trash and hazardous substances for a later discussion. http://www.epa.gov/apti/course422/ap2.html
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http://cfpub.epa.gov/npdes/cwa.cfm?program_id=6

Page 5 of 14 is a discrete (specific) source of the waste that is being discharged into the water system.5 Non-point sources are things that are not easily identifiable to a specific source, for example there is no pipe leading from a building to the waters edge. Runoff that occurs from rain events is a prime example of non-point sources of pollution. Rain moves over land surfaces (like roadways, driveways, backyards, farmland, etc.) and carries the materials on those surfaces (oil, gas, debris, fertilizer, animal waste, etc.) to water bodies. The wastes aggregate in the water system and can degrade the quality of specific bodies of water over time. The steps involved in controlling water pollution under the CWA (the statutory scheme) between point and non-point sources is as follows: Establish Water Quality Standards The first step is to establish water quality standards (WQS).6 Each body of water is supposed to be reviewed by states in which they exist and a water quality standard is supposed to be established. The standard can differ between bodies of water depending on their use. For example, a lake used as a source of drinking water likely needs to have higher water quality standards than a similar lake used for recreational purposes only.7 Standards themselves are based primarily around human use considerations (human consumption, human bathing, etc.).

All municipal sewage treatment centers are considered point sources, as are industrial, manufacturing, and other facilities that have pipes, ditches, culverts, and other means of discharging effluent (waste) into a water body.
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Water quality standards are risked-based, meaning they are derived using a goal of protecting the public health and welfare. These standards are ultimately the policy goals of the CWA and are based on two elements: Designated Uses: How is the water body being used? Fishing vs. bathing as one example; are humans in the water themselves (bathing) or only using the water to extract recreation (fishing)? Criteria: How good does the water quality have to be to meet the designated use? For example, what is the water quality level for drinking water or for bathing? EPA helps to publish the criteria of water quality for certain designated uses.

This is where the CWA moves a bit away from a natural systems approach, at least as we might define in the ecologist camp of thinking. For example, a body of water may be identified as a repository for human waste streams (human-based priority), and thus a lower level of water quality might be placed on that water body regardless of the ecological functions it serves. Thus, while the CWA might take a systems approach in managing human uses of water bodies, it does not necessarily take a natural systems approach to determining the value of the water body (beyond human use) when

Page 6 of 14 Establish Point Source Controls Once water quality standards have been established, then point sources of pollution8 are controlled by a regulatory format that follows a prohibition and permitting approach. The initial prohibition means that no point source can discharge effluent into a water way without first obtaining a permit. Permits for discharge (known as a NPDES9 permitting system) are given to individual applicants. The amount of discharged allowed through the permitting system (all permits and total allowable discharge) must be less than reasonably believed to exceed the water quality standards of the particular water body (often referred to as TMDLs10). Any entity discharging without a permit or discharging in excess of their permit is subject to both civil and criminal penalties under the CWA. Non-point source controls are really meant to back up point source controls. Assume water quality standards are established

Establish Non-point Source

establishing water quality standards. For example, even if humans do not use a particular water body today, who is to say it would not be used by future generations? Is it OK to diminish water quality standards for a body of water today in such a way that prohibits its usability in the future?
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Pollution under the CWA is defined in a variety of ways. The following are examples of pollutants: Organic matter to the extent that certain quantities increase biological oxygen demand (thus decreasing oxygen levels in the water: the water becomes anoxic). Thus, high levels of organic matter may equate to a pollutant. Nutrients to the degree that high levels of nutrients increase primary production, which leads to an increase in biological oxygen demand. Pathogens leading to water-borne diseases. Solids (dirt and sediment) to the degree additions can affect light penetration, primary production, etc. pH to the extent that chemical changes to the water composition can affect the natural system of the water body. Metals added to the water, which can also impact the natural system of the water body. (Note: a decrease in pH can cause metals in the water body to become free thus increasing the available metal concentration in the water body).

NPDES = National Pollution Discharge Elimination System TMDL = Total Maximum Daily Load

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Page 7 of 14 Controls for a particular water body and point source controls are implemented on that water body (the amount of effluent from each point source is controlled by permitting). Once this is done and the water quality still does not meet water quality standards, then non-point source controls are implemented. These controls focus on a more natural systems approach by looking at the larger watershed system that supports the water body in question. Controls that expand to the land (such as land use planning, development restrictions, best practices, runoff mitigation measures, etc.) are employed to try and limit the amount of pollution (mainly runoff) making its way into the water body. Like our figures above, the idea here is to consider the holistic impacts to the system (all of the inputs, not just point source inputs) and to try and determine how to manage the system to ensure the inputs, outflows, and feedbacks are such that the water body maintains water quality standards.

At the conclusion of the three steps identified above, the goal of the CWA (restoring and maintaining the physical, chemical, and biological integrity of the nations waters) should be obtained. This is the general legal framework involved in air pollution control through a statutory mandate (public control) that uses a command (no discharge unless permitted) and control (determining water quality standards, permitting, and non-point source management to achieve standards) mechanisms. In the following module, some of policy and enforcement issues involved through the CWA will be highlighted.

Air Pollution
Air pollution is something that affects us all directly. Every summer in the Northeast the humidity and heat cause low-level ozone concentrations to increase in many areas; the effect is a reduction in the air quality. The city of Los Angeles has long been famous for its air quality problems. The goal with air pollution is very similar to that of water pollution. In essence, air pollution laws are aimed at increasing overall air quality. Historically air pollution was first controlled by common law mechanisms (primarily private and public nuisance). The basis for nuisance claims was that the polluting of the air (say through burning leaves or other materials in an adjacent lot) caused an unreasonable interference in the use and enjoyment of the aggrieved partys property. Generally both the cause of the air pollution and its impact on adjacent properties was localized and did not spread too far. Thus, common law mechanisms were viable means of regulating the pollution because they were specific to the local cause and its local effect. However, during industrialization the amount of pollution grew to the point that statutory law mechanisms began to replace case-by-case common law approaches to provide a more comprehensive solution to the problem of air pollution. Local ordinances began to replace common law actions to respond to the growing scope and impact of pollution in urban and (later) rural areas. Ultimately, air pollution grew to the point where

Page 8 of 14 it was a national problem and a federal statute was passed in 1970 to comprehensively deal with the problem, the Clean Air Act (CAA).11 The CAA works through the following generalized steps: First, standards of air quality are established (just like under the Clean Water Act). These standards (NAAQS12) are established to meet two primary goals: o Primary standards: To protect public health. o Secondary standards: To protect public welfare. Once the federal government has established NAAQS (accounting for regional differences amongst the country), then states are required under the CAA to devise implementation plans (SIPs13) to achieve the stated air quality standards. If states fail to devise and implement a plan, then the federal government creates its own implementation plan (known as a FIP). If an implementation plan fails to achieve air quality standards, then the federal government creates more rigorous standards for the state (the idea being to compel states to properly implement standards to achieve defined air quality).

The CAA currently has a set of criteria pollutants that are the focus of its control.14 These chemicals found in the air are considered pollutants because the meet specific criteria stated under the statute:
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They are an air pollutant, meaning theyre an agent of air pollution;

Notice the positive relationship between expanse of the environmental harm and the scale of regulation (government involvement) in controlling the harm. When the environmental harm is perceived as small, the extent of government intervention (via regulation) is also small; small forms of air pollution causing harm to a local neighbor is dealt with through a common law nuisance claim, not through a major federal regulatory regime like the Clean Air Act. However, as the environmental harm grows the government intervention also grows; when air pollution becomes a national problem there is the development of a national solution. Note that this kind of relationship between the problem occurring and then government responding in similar scale is very much a reactive policy approach as described earlier in this course as the main way that environmental laws are created in the U.S.
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NAAQS = National Ambient Air Quality Standards. SIP = State Implementation Plan http://www.epa.gov/air/urbanair/

Page 9 of 14 Their emission causes or contributes to air pollution and is reasonably anticipated to endanger public health and welfare; and They are emitted by numerous or diverse sources (not a single source).

Just like the CWA, the Clean Air Act looks at pollution holistically, at least in terms of the process it goes through in meeting the standards of air quality (even if its definition of air quality relies solely on human health standards); the Act looks to create a mechanism for developing air quality standards (commands) and then demands states do what is necessary to meet those standards (control).15 While the statute is meant to be mandatory, certain areas of the country (due to high population density and unfavorable physical conditions like LAs smog) have a harder time meeting air quality standards than other areas. In such cases the government has worked to create more carrots than sticks in moving these areas towards the goal of air quality compliance.16 Now that we have a sense of the major forms of pollution control, including the statutory and common law mechanisms involved in the control of pollution, we will move on to the private law remedies that are available. In the next module some of the issues that arise in the public control of pollution will be explored in further detail.

Private Law Remedies to Pollution


One of the most important parts of environmental law (as a mechanism for implementing environmental policy goals) is the enforcement of legal requirements. Without proper enforcement mechanisms, laws are sometimes referred to as paper tigers, meaning they only appear frightening when read because they are never enforced in practice. The very question of enforcement brings us back to the judiciary and its role in our system of government as the arbiter of the law. Thus, when we talk about remedies to pollution, we are really talking about the set of tools available to a judge to enforce the law. Here we will focus our attention on private remedies, while we take up some of the issues involved under public remedies in the next section. However, before we begin we
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Under the CAA states must look to their sources of polluters in the state and create management schemes (SIPs) that ensure air quality standards will be met. For stationary sources (like power plants), the best available technology must be used. For nonstationary sources (like automobiles) the state must engage in a variety of actions to meet the goal depending on circumstances. For example, CA has regulated auto emission standards for new cars that exceed federal requirements in order to meet air quality standards. In addition, additives have been used in gasoline to minimize auto emissions. Ultimately, even choices about developing new infrastructure (highways) can be a part of the way in which a state meets the air quality standards.
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San Diego County has a difficult time complying with NAAQS in its airshed because it sits immediately adjacent to another country, Mexico. Thus, it focuses more on creating cooperative arrangements with neighboring cities in Mexico as a means of implementing a plan to meet its air quality targets.

Page 10 of 14 should have a quick introduction into the role of judicial review generally; just how far can a judge go in creating a solution between public and private control mechanisms?

Judicial Review Generally


Generally, judicial review is constrained when we are considering statutory interpretation. Contrarily, judicial review is generally more open when considering common law interpretations. This has a lot to do with the sources of each area of law. Congress creates statutory law, and the separation of powers doctrine suggests the judiciary must abide by the interpretations established in the law by the legislature (if stated explicitly), with the only exception on this rule being the judiciarys obligation to ensure the statute is in compliance with constitutional limitations (remember the hierarchy of laws). While Congress creates statutory law, common law is judge-made law, meaning judges have a lot more discretion in interpreting common law principles under a set of facts. Thus we should expect that, all things being equal, judicial review of private law remedies to pollution (common law principles) should allow greater degrees of freedom than judicial review of public law remedies (statutory principles). In fact this is precisely what we will find in practice. The specific form of judicial review of public law remedies will be discussed in the next section. What you should carry with you now is the idea that judges have a lot of discretion under the common law in devising private law remedies between the parties.

Nuisance
A nuisance is the unreasonable interference with the use and enjoyment of anothers property. It is a common law principle that applies to various forms of conduct across various mediums (air, water, land). It is very much a singular application of the law, meaning the basis for a nuisance involves a limited act that has a particular result on a single person (private nuisance) or a set of persons (public nuisance). The importance in understanding nuisance is to see how the law is utilized to achieve a particular outcome (remedy). By looking at two cases, we can see how the law of nuisance is applied as a mechanism for controlling pollution. In the Boomer case, homes were impacted by a cement factory emitting concrete dust in the normal course of doing business; the concrete dust was settling into nearby residential homes. The homeowners claimed a nuisance and sued to prevent its continuance. The court held for the homeowners (found a nuisance), but allowed the offending activity to continue. The basis for the courts reasoning was in balancing the interests between the parties in developing a remedy under common law. As noted by the court, although a nuisance did occur, the value of the cement operation exceeded the value of the properties being impacted (essentially the direct economic value of the commercial activity outweighed the direct economic costs to the homeowners). Thus, the remedy created by the court was to allow the cement operations to continue but it had to pay for the harm that was being incurred by the surrounding property owners.

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In Spur, a developer (Del Webb) built a very large subdivision next to a cattle feedlot owned by Spur; the cattle feedlot has been there for decades before the subdivision was built but emanated a foul odor (cattle dung) and attracted rats and other forms of pestilence to the area. Del Webb sold the homes in the subdivision to private purchasers who subsequently sued Spur for nuisance because of the smells and critters in the area. The court ruled the homeowners met the basic requirements for a nuisance and, in balancing the interests between the parties, determined Spur should be forced to cease his cattle feed operations. The rationale was the costs to the numerous homeowners of the nearby subdivision exceeded the benefits of the cattle lot. However, the court did note Spur should be compensated for shutting down by Del Webb, the developer. The reason was Del Webb was aware of the nuisance when he decided to develop the subdivision and Spur should not be economically disadvantaged for Del Webbs decision to build residential homes near the feedlot.

Examining the Decisions


Consider these two cases of nuisance from a policy standpoint; do you believe the cases represent good examples of how the common law action of nuisance can be used to further an environmental policy? Can you see some of the difficulty involved in cases when we think about the role of pollution control more pragmatically? For one thing, the amount of judicial discretion allowed in common law cases provides the opportunity for potentially contradictory holdings from one case to another. Note that the legal mechanism being employed by the judges in these cases is the weighing of interests between the parties. What are the interests of the parties exactly? How are they being weighted? Why do direct economic considerations seem to trump environmental considerations in both cases? These are the policy questions that are relevant to our evaluation of common law doctrines as a means of achieving environmental policy. In both cases, Boomer and Spur, the court utilized a conceptual framework of costbenefit analysis by weighing the interests between the parties. In Boomer the court determined the economic value of the company outweighed the harm to the small number of homeowners. In Spur the court held the opposite; the small economic value of the cattle feedlot was outweighed by the economic harm to the large population of homeowners. While we may debate the merits of the decision-making process among the judges (what they were valuing, the criteria used to evaluate each partys claim, etc.), what we do know is the judges are given a wide degree of latitude in coming to a decision. This is not so with public controls (statutes) as we will see in the next module. Finally, beyond the discretion given to judges, we might think about the effect of the decisions. In the Boomer case the pollution was allowed to continue so long as the cement company paid for the cost of the pollution. This pay-to-pollute is quite similar to the Coase Theorem of private property rights highlighted earlier in the course.17 Of course, the price being paid here is being set by the court rather than between the parties.
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https://www.youtube.com/watch?v=zcPRmh5AIrI

Page 12 of 14 Moreover, Im not certain we are deriving efficient levels of pollution here as we can likely see how the aggregation of such pollution can have costs that exceed this kind of case-by-case analysis.18 Again, this is another point to consider when comparing between different kinds of environmental law strategies.

A Note On Negligence
Negligence is another private law remedy, which allows an individual to sue another party in a court of law if the following elements are proven: duty, breach, causation, and damages. Duty refers to the general duty each person owes to another in a civilized society. It is often referred to as the reasonable person standard. We are all charged to act reasonably in our daily affairs. Failure to do so, if such a failure leads to another persons harm, is actionable under the law. Breach refers simply to the failure to act as a reasonable person. If one fails to act reasonably, and harm occurs, then they have breached their duty under the law. Causation refers to the legal nexus, or connection, between the act causing the harm, and the breach by the party alleged to have committed the harm. If there is no direct connection between the two acts, then there is no causation. (This is a hard concept to grasp, at least when causation is not found; many law students never grasp the subtle differences). So, in order to prove negligence, one must show the harm was caused by the conduct of a party who has breached a duty they owe to someone else (the duty to act reasonably). Damages refer to the types of harm suffered by the aggrieved party. The individual must prove they have suffered some loss. If they have, and the loss was a result of another persons breach of duty (directly caused by), then that person is entitled to damages.

Usually, in the environmental context, negligence actions are referred to as toxic torts. An example may be a company that unknowingly discharges harmful chemicals (or knowingly discharges chemicals but does not intend the resulting harm) into the environment, and these chemicals flow into another's property causing harm. The harmed party would be able to file a lawsuit against the company claiming negligence. The kinds of damages available under a negligence theory are focused on the harm to the individual and not necessarily the environment. For example, the BP Gulf Oil Spill in 2010 resulted in harm to both the environment and to those who utilize the environment
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For example, a cement factory emitting carbon reinforcing climate change is doing more than impacting the air quality of its neighbors by the soot created in the cement mixing process.

Page 13 of 14 for economic reasons (commercial fishers, tourism enterprises, etc.). Many of the individuals claimed harm against the oil spill and sought compensation under several legal frameworks, one of which was negligence. In seeking compensation for negligence claims, the focus was on the direct economic harms suffered by those making the claim. Although the basis for the harm was the oil discharged into the Gulf of Mexico, the focus of compensation (remediation) under the negligence theory was the harm to the individuals, not to the environment. As such, we may see the limitations in this private remedy to environmental harms; like nuisance, negligence claims focus on the harm to the individuals and not necessarily the harm to the environment. This is different from statutory (public) remedies, where the statute itself generally spells out specific requirements focused on the environment, and the remedies (as we shall see) are geared towards environmental quality19 rather than individual evaluations of harm. A visual representation of this difference between common law and statutory law focus in the environmental arena is shown here:

(There are also other private law remedies anti-trust, federal security laws for example are explained in your text. They are not significant for our general understanding and I will not hold you to knowing this information.)
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For example, the Clean Water Act has a clear goal stated in the statute: to restore and maintain the quality of the nations waters; the Clean Air Act has a similar statutory goal regarding air. Note the focus in both of these statutes is on the background state of the environment (as defined in each statute). This is different from nuisance and negligence, which focus on the individual and simply relate to the environment as a means of identifying the nexus (basis) of the harm.

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Conclusion
Pollution comes in many forms (as described above) and is controlled in a variety of ways. We can see here that the major federal laws controlling pollution of the air (CAA) and water (CWA) focus on command-and-control as the regulatory mechanism (banning the pollution without express permission from a permit). Putting our policy hats on, we may consider these kinds of regulations in light of other ways to create incentives not to pollute (recall the discussion earlier about internalizing pollution through taxing the value of the pollution into the price of the product). We can further contrast the private remedies discussed here with the public remedies that follow in the next section. Finally, we should consider the impact (or role) played by different forms of environmental law; for example, do private controls offer the kind of solutions we seek when looking to programmatically manage air or water pollution? Does the leeway granted judges in fashioning remedies to environmental harms under common law doctrines help or hinder environmental goals? There are no absolute answers to these questions as they are, in many ways, contextually dependent. However, we may find an affinity for certain legal instruments depending on the amount of control we are seeking in developing policy instruments that achieve specific environmental outcomes. For example, if we want to be programmatic in our approach to environmental problems, then we might favor public law statutory frameworks because they focus on the environment rather than the individual in achieving environmental goals.20 (At the very least we may better understand why statutory frameworks exist in the environmental field).

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Some would argue the statutory frameworks (public remedies) of environmental law favor an ecological perspective because they focus on the background conditions of the environment as the basis of ensuring environmental quality. Meanwhile, common law frameworks (private remedies) are more geared towards the economist perspective because they focus on the interactions between human participants and seek to redress the human-based use of resources in a way that balances the relative benefits and costs of the activity against the competing human uses.

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