POL661 Environmental Law Lecture Materials
© Chad J. McGuire, All Rights Reserved

I. Do We Need to Protect the Environment? Values and Reasons
Lecture Overview
We begin our exploration of environmental law with the broadest of topics, discussing the value judgments and rationales that might apply to the question of protecting the environment. Consider that there is no ‘mandate’ to protect the environment1 and even the very idea suggests the environment is something that needs protecting. In order for us to understand this in greater detail, we need to first have some understanding of what the environment actually is (we need to have some agreement on the term ‘environment’), and then we need to come to some understanding on why the environment might be in need of protection. We being this exploration by discussing values that might be connected to the environment, followed by some exploration of the reasons that might exist to protect the environment.

Overview of Environmental Law
So, what is environmental law really? Well, we can start with the obvious. Environmental law must deal with at least two things: the environment, and the law. As we move through the materials we will gain a perspective on the main similarities and differences between what we term the ‘environment’ and what we identify with as the ‘law.’ For now it may sufficient to categorize these two concepts as follows:


For example, there is no constitutional requirement federally that says the government must protect the environment (the ‘source’ of federal environmental power actually comes from the Commerce Clause of the U.S. Constitution). Contrast this with the Bill of Rights (first ten amendments to the U.S. Constitution), which details specific rights and protections the citizens have against government action. U.S. Citizens have a right to freedom of speech, assembly, the right to bear arms, and other enumerated rights. However, there is no ‘right’ to a ‘clean’ and ‘healthy’ environment in our Constitution. Thus, we must look to the political process (legislature mostly) to see if there is a willingness to express such rights in our national policy by passing laws that create such protections for the environment.

Page 2 of 115 • Environment: Defined in a ‘natural’ sense. Relates to natural settings primarily through observations and science. Based mainly on objective criteria, meaning the use of observations and the scientific method inform us of what the environment is and how our actions might influence it.2 Law: An expression of societal norms based on human preferences and capable of changing over time. In policy parlance, ‘law’ is the expression of policy preferences (statutes primarily) as well as the implementation of those policy preferences (administrative enforcement of statutory goals).

One of the key differences between environment and law as defined above is the distinction between something that is capable of being controlled by human choice (law), and something that is subject to forces and conditions that are not easily controlled by human choice (environment). One way of understanding this conceptually is to think about a relationship between the environment and society. A visual representation of this relationship is provided here:


For example, observations of changes in carbon dioxide concentrations in the atmosphere over time have led to the detection of a relationship between increased average global temperatures and increased average concentrations of atmospheric carbon dioxide. These observations are the basis for understanding: • The background rate of carbon dioxide in the atmosphere (what came before); • The observed change in atmospheric carbon dioxide concentrations (what is happening); • The connection (relationship) between increased atmospheric carbon dioxide concentrations and increased global average temperatures (which were also being observed and rates of changed noted). The observations are the foundation of the scientific method and allow for the use of objective information as the means of understanding our natural world – our ‘environment.’

Page 3 of 115 As you can see from the image, the suggestion in this visual representation is that the law (represented as the blue “society” rectangle) is constrained by the environment (represented as the green “environment” rectangle). This suggests that our social institutions are bound by objective natural system factors. Thus, our social options are limited by environmental constraints; our ability to make choices is limited by background environmental conditions.3 Under such a presumption, we can see that law is somewhat subservient to the environment, at least when we consider what must give way when the two come into conflict such that human wellbeing is placed at risk. We have much greater control over changing our laws (as expressions of our societal norms) then we do over changing background environmental conditions to suit our needs. Thus, we may find environmental laws come into existence as a way of changing our expectations as we come to understand the impacts of our actions (current preferences) on background environmental conditions.4 OK, that is fine, but what is the context for what we will be learning? The first reading (Stone) attempts to get you to think about the policy implications surrounding the development of environmental law. The subsequent reading in the Firestone text attempts to get you to start thinking about how to define the environment (from several perspectives). I will highlight some of the points here, but I also want to take a slightly different approach and see if it will aid in your understanding. The approach begins with a quick summary of thinking about policy in context, and then moves on to a discussion of environment. So the goal here is to come to an understanding of what policy means in the context of environmental law: the Stone reading helps with the policy context framing the question of environmental law, while the Firestone introductory materials helps us think about what we mean when we use the word ‘environment’ in a personal and legal context.


An example might be our ability to make social choices that result in the degradation of an important resource, like water for human consumption (drinking, bathing, etc.). Potable water is necessary for human existence (and wellbeing). Thus, our social decisions are necessarily bounded by their impact on water quality. If we allowed human activities to continually degrade water quality to the point where humans could not consume clean water, then we would be placing ourselves into a position where our survival is at-stake. Thus, our social decisions that might include activities that harm water quality are bounded (limited) by our need for clean water. Background environmental conditions set the baseline for clean water, and our actions are then directed by a consideration of these background conditions (how much clean water is available) and the impacts of our actions on these conditions.

For example, current laws that allow for companies to discharge chemicals into waterways may be observed over time to degrade water quality. If the water quality becomes threatened to the point of impacting human wellbeing, then our choice is to alter our current laws (our preference to allow the dumping of chemicals) so that we can protect water quality; the new preference for limiting chemical dumping as a means (goal) of protecting water quality may be seen as an environmental law.

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Thinking about Policy
I really like the Deborah Stone piece, mainly because it gets to the heart of an important question surrounding the subject of environmental law. Indeed, if we are to understand how these laws came about, we need to know something about the policy process. For an introduction to these materials, I wanted to focus on what Stone terms equity. As she notes, fundamental questions for consideration in environmental issues include: • • • In a world of limited resources (think of the ‘pie’ example), who gets what, or, how are limited resources distributed amongst a particular group of people? Once we’ve established who gets what (based on whatever criteria we might apply), the next question to answer is when do they get their share? Finally, we can ask the question of how are these resources to be distributed; how do the lucky few who get access to a limited resource actually get their distribution? What criteria might we establish to divide the ‘pie’ of resources up to the few?

Let us think about this question from a broader perspective for a moment. Most of us understand the current issue surrounding the (perceived) scarcity in oil worldwide. If you say we deserve lower gas prices (make this the policy goal), then there are a few ways of achieving this goal based on the limited resource of oil. We can: (1) lower our use of gas (decrease demand); (2) increase our domestic production of oil (start more drilling in places like Alaska and offshore); (3) secure our right to the oil of other countries (by force if necessary); or (4) develop alternatives to oil. What seems the most equitable solution? Are they all equitable as Stone defines the term? Certainly, one choice will have an effect on certain groups that is different from another choice.5 As you move through the materials, you will be reading about the laws that have been developed (mainly) in response to environmental concerns.6 Laws are usually the result of engaging in a specific policy direction. Thus, they are the end result or implementation of a given policy. For instance, our country began to observe the

For an example of how offshore oil and gas development would impact one group (coastal states) vs. another group (federal government) please see the following article:

Consider that laws can also be proactive, meaning they can be created in anticipation of environmental problems. This is the opposite of reactive policymaking, where laws are created to deal with a problem after the problem has occurred. Consider why environmental laws might tend to be passed after-the-fact (reactively) rather than in anticipation of harm (proactively); we may find reasons for this as we continue along with the materials and you will be able to judge for yourself whether you feel those reasons are valid or invalid (depending on the criteria you choose to apply to that question).

Page 5 of 115 negative effects of industrial activities on the air quality of many cities after WWII (Los Angeles is one historical example). Citizens demanded government action. Government, in turn, debated the issue to come up with a solution. A policy response was determined to regulate the sources of air pollution.7 This policy response was carried out through the passage of a law, the Clean Air Act. The Clean Air Act in turn, regulated the way in which pollution was generated and emitted into our atmosphere (one of the parts of our ‘environment’). As you can see from this example, the law was developed to implement a specific policy response to dirty air. All of the laws you will be reading about this semester were developed to implement a specific policy. As you read these about these laws, try and identify the policy questions that were being contemplated in the process of developing the law, including how those questions came to be.8 Consider the questions posed by Stone in the reading. Can you find the equitable result in the laws? Do the laws, on balance, achieve a level of fairness? These are questions that are constantly debated in the public arena. I invite you to analyze these questions from the analytical standpoint suggested in the Stone reading. The hope is to gain deeper insights into the reasons why environmental laws exist today.

Environmental Law Relates to A Place: The Environment
The definition we give to the term environment is an important part in understanding the purpose of environmental law. As Firestone points out, the term environment can be defined in a variety of ways. For some, it relates to natural settings, untouched by

This is an example of regulating human actions (the ‘source’ of pollution) rather than regulating the background conditions of the environment (demanding the Earth get better at ‘absorbing’ the pollution placed in the air).

For example, think about the role of science in helping us identify environmental issues. Science can monitor our environment (through observation as mentioned earlier) and then call our attention to changes that are observed in our natural system. In many ways, science is being used here to call our attention to the background conditions of our environment, which, if you agree with the figure listed earlier in this lecture, establishes the outer limits of our potential human actions. When background natural conditions change, we are put on notice of a potential problem. Exactly what this ‘notice’ triggers in terms of our social institutional response depends on a variety of factors, including the known connection between the change and human behavior; some changes – like increased volcano eruptions – are likely outside of human activity and our capacity to control. For those changes that are linked to human actions (like carbon forcing), we have options. We can take a proactive approach to the problem (assuming the problem is controllable and not past a threshold), or we can wait and see just how bad the issue becomes. Where the problem gets to the point of directly affecting human wellbeing (like the air quality in Los Angeles), we may decide to take action. Our mechanism for taking action can be in many forms, but our formal process in the United States is usually the creation of a law that regulates air pollution, like the Clean Air Act.

Page 6 of 115 humans. For others, it focuses around human health (think public health issues – bad air, dirty water, exposure to chemicals). For others, the environment has a scientific meaning (the objective study of ecosystems, animal behavior, cell biology, etc.). No matter what your definition, you should agree the environment is important to us as humans (we find importance in the environment through our personal experiences). Many of you will find your opinions about how environmental law should be used is influenced heavily by your personal value system. I find nothing wrong with this statement and believe it is true. However, as you move through this course I ask you to inform your values with an open mind, based on the information presented. Most importantly, I ask that you support your opinions with facts. Do not tell me the environment is important because you say so. Explain why the environment is important, and based on what context (i.e., important to whom and for what reason?). Through this process your understanding of your values related to your definition of ‘environment’ will become better understood (as an informed process) as you begin to justify your ‘feelings’ with rational arguments based on facts and evidence (something that is fundamental in the law). From a practical standpoint, we can say the environment, for environmental law purposes, is generally defined through an anthropocentric (human-centered) point-ofview. Thus, environmental laws will tend to focus on actions/circumstances that tend to have an immediate and/or substantial impact on humans.9 Climate change is an example where environmental laws are being developed in response to a phenomenon that directly impacts humans. Why? Not because we are completely convinced we need to deal with it (to save the environment), but because it poses a potential risk to human wellbeing.10 To this end, you may see the following hierarchy or priorities list regarding what many environmental laws are meant to protect:

Highest Priority: Immediate threats to human health (Hazardous Substances Act, Clean Air Act, Clean Water Act);


As noted earlier, we tend to develop environmental laws as a reactive policy mechanism, which means we first identify immediate threats to human beings and then create laws that mitigate those threats; this process is usually enhanced (meaning the development of environmental laws and the ‘strength’ of those laws happens faster) when the threat is both immediate and substantial. Where a threat is not deemed immediate (even if the potential threat is substantial, like the impacts of future sea level rise brought on by climate change), we tend to discount the threat and wait for greater certainty about the threat prior to taking action. Again, this process is mostly the result of a reactionary approach to environmental law as a response mechanism to environmental problems.

However, if the impacts of climate change are not immediate, then the reactionary nature of environmental law development may prohibit immediate action (we may not see environmental laws developed quickly and comprehensively to deal with the issue of climate change).

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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).11

Finally, let us focus on the complexity discussion in the text regarding the environment. From an ecosystem perspective, the environment relates to a finite space (the Earth system).12 Being finite, there is a limit on the amount of nonrenewable resources we can extract. As we grow in population, our impacts on the ecosystem (especially including things like waste) have a larger impact on the environment. Thus, there may be a need to control our habits in some measure. Examples of laws that can be used to control our habits are as simple as fines for littering (to control trash), to a pay-as-you-go trash system (requiring you to pay for each bag of trash accumulated – encourages recycling), to regulations on how items are created and packaged by producers (using recycled material only, etc.). When such laws are aimed at producing a benefit for the environment, they likely can be labeled environmental laws (even when they are based on tax laws, etc.). Thus, the field of environmental law can truly be expansive! The basis for these kinds of environmental laws tend to focus on a systems approach that views nature as a set of interactions between natural system components. The basis for creating environmental laws is to view those interactions (remember our sciencebased observations) and determine how those interactions are being affected by human behavior. A visual example of viewing nature as a set of system components is shown here:


Note: the hierarchy provided above is not meant to indicate an actual preference that falls into any individual belief system, but rather a general preference reflecting what society agrees should be the role of government in protecting environmental resources. In other words, the general public agrees government should be primarily concerned with human welfare first, even where members of the general public believe protecting wilderness values are just as important – and maybe necessary – for protecting human welfare.

This assumption of finite space follows the presumption in the earlier figure that the environment sets the outer limit by which human institutions (society) and actions (economy) function.

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The boundaries of the system are really what sets up the insights in understanding system dynamics. For example, note the outer boundary in the figure above: it separates the kinds of interactions that occur between the outside and inside of the boundary. The fact that the boundary exists means that we can influence the makeup of the system by altering the composition of concentrations within and outside the boundary.13 In the figure above, the large component of the system is defined in light blue. Within this large component there are smaller subcomponents in green that have a different composition than the large component (because they have their own boundaries limiting what goes into and flows out of the component). However, what is critical is to understand that the boundaries themselves establish the behavior of the system; if the boundaries did not exist, then the system would act and look different from its current state. This leads to the following insight: • The way a system functions can change by altering the composition of components within the system.

Once this insight is understood, the importance of equilibrium and phase shifts can be understood. The idea behind equilibrium and phase shifts is reinforced in the Firestone text with the riddle of the lily pad. The riddle is meant to highlight the non-linear, dynamic (exponential) characteristics of the environment. Because of these characteristics

The extent to which we can alter the composition of what is within and outside the boundary depends on the permeability of the boundary itself. If a boundary has a low permeability, then concentrations inside and outside of the boundary are capable of greater change; the opposite is the case where a boundary has a high permeability.

Page 9 of 115 we often cannot see a change in the system (even with excellent scientific observations) until the change is too late. “Too late” in this case refers to the point where the natural system has moved beyond a threshold state and is now at a new equilibrium, meaning the system operates in a fundamentally different way than it did previously. The riddle asks how much time is left before the lily pad completely covers the pond when the lily pad covers half of the pond? The answer is 1 day because the lily pad doubles in size every day (rather than growing at a stable, linear rate). What Firestone is getting at is that once the lily pad covers the entire pond, there is no time left to respond to the problem and the ecosystem of the pond is fundamentally changed (it has gone through a phase shift). In systems theory, this shift is represented visually in the following figure:

In environmental law (as a matter of policy), we want to create laws that prevent the initial equilibrium state from being impacted by stresses to the system in such a way that the system moves beyond the system threshold (because the result would be the new equilibrium state (red dotted line) and that state may be very different for human comfort and wellbeing.14 Thus, from a systems perspective, we may look at environmental law and consider its proper place in advancing environmental policy. For example, under a systems approach, should environmental law be reactive in nature? If it is always

Consider a fundamental change in the temperature distribution of the Earth based on climate change. If this fundamental change becomes permanent (a new equilibrium state), then the background conditions of nature (including climate) that we are used to fundamentally change as well. This can lead to disruptions in our normal (expected) patterns of rain, drought, storms, etc., which can alter the way in which we have developed our patterns for meeting our basic needs (food, water, shelter, coastal living, etc.).

Page 10 of 115 reactive, then what are the chances of catching an environmental problem if we can only ‘see’ the problem when it is like the lily pad covering half of the pond? Will we have enough time to prevent the problem if we only have one day to react? Or should we be more proactive in our approach to environmental law development so that we are doing our best to ensure the natural system stays within a range that is comfortable for human existence and wellbeing? In many ways these questions are at the very heart of the policy nature of environmental law.

When we consider the environment, we must have some understanding of what it is. (Without such an understanding, we have little idea of what we are trying to protect). So, what encompasses the definition of environment for human purposes? As you can see from the readings, there are many possible definitions. Linked to these definitions is the policy process. Once we determine what is worth protecting (air, water, etc.), we must determine priorities. The policy process helps us to identify: who gets what, when do they get it, and how do they get it (maybe also why do they get it). If we understand the policy behind a given law, we have a better understanding of the law itself. This is because the law is generally the end result of the policy process. We can say the law is there to implement a given policy. Our definition of the environment is a key part of placing the role of environmental law into context. Most importantly, if we include in our definition a consideration of natural systems (and thus systems thinking), then we must consider the impact of influences on our environment to natural systems. This includes considering when to act to prevent a potential phase shift to the natural system; are we to be proactive in our development and implementation of environmental law, or are we to be reactive? We will see many of our current environmental laws (actually most) have been developed in response (reactive) to environmental problems. Even so, those reactive laws also carry proactive measures.15 For some environmental problems, the ability to ‘fix’ the existing problem exists. For others we likely have to think about the influence of equilibrium states and phase shifts to consider if a reactive policy will be capable of ‘fixing’ the problem. Under a systems approach, if it seems there is little likelihood of fixing the problem then maybe we need to take proactive measures in how we go about developing and implementing our environmental law strategies. END OF SECTION.


For example, the Clean Water Act was developed in reaction to human activities that degraded water quality. However, the Act includes provisions for both restoring the quality of the nations waters (reactive) and maintaining the quality of those waters into the future (proactive).

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II. Do We Need Environmental Law? Where Do Environmental Laws Come From?
Those who have studied economics may understand the arguments favoring a freemarket analysis of environmental issues. What this means, at its heart, is there is no need for government to regulate the environment (we do not need environmental laws). Rather, the free marketplace of ideas can better control the quality of the environment. Many influential thinkers have advocated this position.16 Of course, we do have government regulation of the environment (otherwise we would not be reviewing environmental laws here). Aside from other transaction costs, the actual amount of the federal budget that is spent on the environment is annually around 3%. That is not too significant a number considering other spending priorities such as defense (@ 20%), Medicare & Medicaid (@ 22%), and even the servicing (interest payments) of our national debt (@ 7%).17 So, now that we know we have chosen (as a nation) to have public controls on the environment18, the question becomes: do we really need these public controls?

For a summary of the ideas behind the use of private mechanisms to control environmental harms, see the following video summary on Coase Theorem:
17 18

These are 2012 actual federal budget numbers.

Regulation is the fundamental control mechanism for environmental laws. Most of the environmental laws you will be reviewing in this course follow the command-and-control form of regulation where a command establishes a particular goal, and then the law develops mechanisms of control to ensure the command (goal) is reached. For example, the Clean Air Act establishes ‘air quality standards’ (the command) and then sets forth ways in which the government can enforce those standards (the control). Note this form of government intervention, via regulation, is fundamentally different from the private mechanisms of control favored by free market supporters such as Coase. In a private control world, the extent of government intervention in environmental affairs would be to enforce the contractual obligations that were established between private parties after the rights of the parties were clearly established. So, for example, if one is given ownership over a natural resource (say water quality), that person can contract with others who might harm that resource to be directly compensated for the harm. The amount paid should be an accurate reflection of the amount of harm occurring. Thus, only efficient amounts of environmental harm would be allowed to occur because the market forces would keep the amount of environmental harm in-check. Of course, we can contrast this concept with our earlier discussion of natural system dynamics and changes in equilibrium states; is it likely that these individual transactions will be capable of seeing the aggregate environmental harm occurring in time to prevent the harm (like the lily pad example)?

Page 12 of 115 Assuming the answer is yes, a closely connected question is: where does government get the power to enact such controls? Both of these questions are at the heart of our materials for this module. As you explore these materials, take the time to consider these questions, as well as the policy implications suggested from the previous module. (Think: Is there a better way to control environmental harms? Maybe there is!)19

Do We Need Environmental Laws?
As you review the historical account in the Firestone text, a few things should become apparent. First, our combined increases in population and technology (through the industrial revolution) have increased our general rates of consumption. This in turn has historically led us to the point where we need to account for our actions, particularly as our actions impact natural systems. In the United States, regulation of the environment is the preferred public form of accounting. An example may help place this statement into context. Do you speed? (By speeding, I mean traveling over the posted speed limit – let’s say going faster than 65 in a 65mph zone). If so, why? Is it because everyone else is doing it? Is it because if you do not (at least in areas where I drive in MA) you could be overtaken by an approaching vehicle doing 95mph? Whatever the reason, you might argue there are more reasons to speed than there are to stay within the speed limit (if you speed on a regular basis). And this is the case even when it is against the LAW to do so! Moreover, this is the case even though you are aware it is against the law to speed. Well, apply this same rationale to environmental issues. Consider the further example. You are a


For example, as noted in the earlier footnote, many of the environmental laws we will be exploring in detail are command-and-control types of regulations; the law sets a standard and then enforces that standard through actively seeking out noncompliance of the standard. This kind of control is sometimes criticized as being expensive and time consuming; government must constantly enforce the standards that are set. Some suggest superior methods exist to control environmental harms. Examples include the privatization of environmental assets (like the air or water) as noted earlier under Coase Theorem. Others suggest establishing a monetary number for environmental harm and then working to meet that goal through the internalization of such harms in pricing mechanisms. An example of this would be a tax that internalizes the environmental harm caused by a particular activity. For example, electricity generated through burning coal causes air pollution whereas electricity generated through solar or wind power does not cause such air pollution. If one can calculate the marginal cost of the pollution in the air (per unit of pollution), then this cost could be added as a tax to the actual production cost of electricity when the production method (like burning coal) results in the pollution of the air. The ‘environmental tax’ would make the cost of electricity more expensive when generated from coal thus making non-polluting alternatives (like solar and wind) more competitive (because the tax would not be added to the costs of production methods that did not cause air pollution). The tax would be self-enforcing because the ‘harm’ is already incorporated into the price.

Page 13 of 115 business that produces widgets. In the production process, you have waste materials. There is a pit in the back of your business where you can place this waste material at no additional cost to you. In fact, by removing the waste without cost, you can keep the price of your widgets lower and remain competitive in an open market (in comparison to other widget makers). Let us now say you have the choice of either placing the waste in the pit or having it removed form your site and recycled. However, the removal costs you 5 cents per widget. If you ‘pass’ this cost on to the consumer (raise your prices), you are no longer competitive with other widget makers. What should you do? What would any reasonable person do under similar circumstances? These examples attempt to highlight one reason environmental laws are important today. As a society, we need to create incentives for people to act in a manner that is beneficial for society (even when it may not benefit them individually). The main way we create such incentives is through the passage of laws. Environmental laws are specifically catered to ensure the public benefit of the environment is not degraded at the hands of private action. Thus, we need environmental laws (and strong enforcement) because many times individual private actions are harmful to the public benefit, particularly when those private actions are aggregated (added up). This is shown clearly in the text as you review the historical context from which environmental laws have arisen. How should environmental laws be implemented is a different question, a more normative question that gets into value systems and individual beliefs, which highlights the distinction between ecologists and economists described in the Firestone reading. Economists generally believe in a benefit/cost approach to environmental issues. That is, the environmental harm that is caused by an activity must be balanced against the benefits of the offending activity. (We will see this benefit/cost approach play out when we talk about land use, and the Boomer case in particular). Alternatively, ecologists believe any environmentally detrimental activity must be banned regardless of its economic benefit. In many ways, ecologists are focusing on the natural system and the lily pad-type problem discussed earlier; the fear of small changes aggregating together to lead to large changes in the system, and potentially an equilibrium shift in the system itself, makes the aggregate costs outweigh the aggregate benefits even when marginal benefits seems to outweigh the marginal costs on a case-by-case basis.20 Another way of saying this is that, sometimes, individually rational decisions can lead to collectively

When we look at decisions on an individual basis, the small ‘costs’ of pollution towards the environment might seem insignificant; one person placing their waste in a large waterway does not indicate any real harm to the waterway as a whole. Thus, on the margin (focusing solely on the individual case), the benefits may legitimately seem to outweigh the costs. However, if every person places their individual waste into the same waterway, then there is a greater chance that the collective impact of these actions (in the aggregate) will result in significant harm to the waterway. If this harm results in an equilibrium shift where the waterway now is irreparably polluted, then the costs (both today and for future generations) legitimately outweighs any benefits that accrued by those individuals dumping their waste into the waterway. Ecologists tend to focus on these collective problems when thinking about potential harms to the environment.

Page 14 of 115 irrational results; when these individually rational decisions lead to collectively bad outcomes for the environment, it often comes down to government to intervene in the individual actions to ensure the collectively bad result (environmental harm) does not occur. Compare these two approaches to the values discussed above. So, who is right? Can you begin to see how much values play a role in the underlying system of environmental laws (what we choose to regulate, why we choose to regulate it, etc.)? At the heart of a benefit/cost approach is the idea that all benefits and costs are being considered. The example of the pollution in making widgets above helps us understand this is not always true; the owner of the company may have incentives to externalize the costs associated with widget production, specifically the pollution created in the process. If the owner does not value the land and impacts associated with placing the pollution into the pit (including potential contamination of groundwater, soil, etc.), then the ‘costs’ associated with the pollution are not really part of the benefit/cost analysis. Rather, the costs of pollution in creating the widget are spread out (externalized) to the environment and thus society at-large (even those of us who do not benefit from the creation of widgets). In these kinds of cases, market failures can occur where not all of the costs are being realized so the benefit/cost analysis is incomplete. Environmental laws can help to internalize some of these environmental costs to prevent a market failure from harming our environmental assets. One way to understand why market failures occur in environmental problems is to get an understanding of environmental assets based on property right characteristics. If we look at two characteristics of property rights – divisibility and excludability – we find four major categories of property rights visually represented here:

Market failures tend to occur where the property right characteristics show low excludability and high divisibility. Common pool resources, as identified above, are the

Page 15 of 115 kinds of resources that show these two property right characteristics. If we look at the figure to see the other kinds, we can see that common pool resources tend to be those types of natural system assets where most environmental problems occur (air, ocean, etc.). The fact that one cannot exclude another from the resource (low excludability) means people can utilize the resource even though they have no ownership interest in the resource. For example, the widget maker dumping its waste into the waterway makes sense when there is no ownership over the waterway: they are not prevented from dumping the waste; they are not violating another’s property right; they have no exclusive property right over the waterway. Thus, because there is no ownership and thus ability to exclude, there is the capacity to do harm with little consequence to the individual doing the harm. However, the harm is divisible (high divisibility), meaning the water that is polluted is not available for another use; the polluted water is divisible from other units of water in the waterway.21 The divisibility creates the capacity for the waterway to be harmed. Thus, the market failure is really the result of externalizing costs on natural resources where those costs are capable of aggregating to the point of creating harm to humans (via pollution, climate change, etc.). When this is a market failure, government often needs to step in and ‘fix’ the problem. The actual way in which to fix the problem depends on a variety of factors. For example, Coase would argue assigning well defined property rights would fix the problem; the ownership rights created would make the resource excludable and parties could then negotiate an efficient way of managing the environmental asset.22 Others might argue taxing is a superior method, where the generator of the pollution is taxed for each unit of pollution created (in our example the Widget maker). Still others might argue a command-and-control framework is best, where the government steps in and prevents the Widget maker from placing their pollution into the waterway without a permit, and then controls the permitting process to ensure the quality of the waterway is maintained over time. We will see examples of these different approaches to environmental law as we continue along with the materials. As we move through the materials, consider the categories of property rights identified above based on the characteristics of excludability and divisibility; we will tend to find the more difficult environmental issues to manage (from both a policy and law standpoint) tend to be those that exhibit common pool resource characteristics. A more elaborate discussion of the reasons why these kinds of resources tend to present difficult environmental problems is explored in the environmental policy course.

Where Do Environmental Laws Come From?
What is the Source of Environmental Law? This question is really about our form of government in the United States, and how policy is translated into law as the

Contrast this with gravity, which is not divisible, meaning no matter how much of it you use there is still plenty of it available for others to use. 22 Recall Coase Theorem:

Page 16 of 115 implementation of policy directives. As a matter of civics, recall that our government is separated into three branches: • • • The legislature (Congress) who creates law by passing statutes. The executive (President) who implements and law. The judiciary (Courts) who enforces legal principles by interpreting law.

Each branch has a role in environmental law, but the Legislature (Congress) has the primary role in making environmental policy ‘live’ by passing statutes on behalf of the environment. In order for the legislature to do so, it must have the ‘power’ to pass statutes that regulate the environment. Thus, we must look to foundational legal principles (like the U.S. Constitution – which creates the different branches of government) to determine if Congress has the ‘power’ to pass statutes that protect the environment. As the book states, the source of power to regulate the environment at the federal level comes from the Commerce Clause of the U.S. Constitution. This is mainly because there is no specific constitutional provision dealing with environmental issues explicitly, so the federal government gets jurisdiction to protect the environment through its capacity to regulate commerce between the several states (interstate commerce). There is a lot more in terms of understanding the legal relationships within this system of federalism (federal and state government interactions), but it is enough to know there is a source of environmental law at the federal level and it is based on regulating commerce between the states. The source of environmental law at the state level is the 10th Amendment reserved powers (police powers) of the state to regulate the health, safety, and welfare of its citizenry; we will see the 10th Amendment powers in greater detail in the land use section of the materials (under public controls of land). A basic representation of a hierarchy of law is shown below:

Page 17 of 115 The hierarchy representation above helps to place the different kinds of laws we observe in environmental law into context. At the very top of our pyramid here is the U.S. Constitution (C), which is the supreme law of the land.23 Under the U.S. Constitution exist state constitutions and then federal and state laws (L). Under the laws exist regulations (R).24 Any law that violates a constitutional principle is unconstitutional. Likewise, and regulation that violates a law is void. This relationship between the constitution, laws, and regulations is shown below:


Another way of saying this is that the U.S. Constitution sets a minimum standard by which all other laws must comply. For example, if the U.S. Constitution states that any law discriminating against race is unconstitutional, then that sets a minimum standard indicating racial discrimination is unconstitutional. However, other laws can go further than this minimum standard by, for example, including other categories into discrimination, such as gender or age. The only thing a law cannot do is make discrimination based on race legal because this would fall below the minimum standard established by the U.S. Constitution.

Regulations are ‘rules’ (quasi-laws) passed by administrative agencies (under the Executive Branch of government) meant to implement the goals of statutes passed by Congress. Regulations are an example of administrative law, and this area of law is taken up in greater detail in the administrative law course.

Page 18 of 115 Much of environmental law is implemented by federal and state agencies like the Federal Environmental Protection Agency (EPA). These agencies are often given the power by the legislature to develop rules that implement legislative intent.25 The agency is then left to create regulations to achieve the goal of the legislature. The regulations must be within the powers granted to the agency by the legislature. For example, if the agency engaged in the orange “X” action identified above through a regulation, then that action would likely be outside of its delegated authority because the act itself is outside the box of laws (blue box) and regulations (orange box) in which the action must take place. In summary, environmental laws come from a variety of sources, but those sources must all come back to an original jurisdictional element. For federal environmental law, the ‘original’ jurisdiction is the Commerce Clause of the U.S. Constitution. Legislatures like Congress must make sure federal laws are within that constitutional mandate and agencies must make sure their regulations are in-line with the statutes that give the agency authority (power) to create the regulations. Understanding this general framework will be helpful as you continue through the materials provided in the course. A kind of conceptual checkbox question method (decision tree) that can be used to help understand these concepts in context when analyzing a rule includes the following: • • • Is the agency action (what the agency is actually doing) supported by a rule enacted by the agency? If yes, then is the rule created by the agency within the statutory authority (delegated authority) granted by Congress? If yes, then is the statutory authority (either facially or as it is being applied in this instance) allowed under the U.S. Constitution; is the action constitutional?

You should now be properly introduced to the concept of environmental law. I hope this introductory material has allowed you to consider the question: what is

For example, the Clean Water Act is a federal law that is meant to protect the nation’s waters by preserving the biological, physical, and chemical integrity of those waters. The Act itself is silent on how this will be done precisely and delegates the responsibility for meeting this general policy goal to the particular agency identified (in this case the EPA) in the statute. The agency then implements the goal by creating regulations (rules) that set standards by which the goal of the statute (preserving the biological, physical, and chemical integrity of the nation’s waters) can be met. If the agency passes rules that are outside of its delegated authority by the statute, then the regulation is like the orange “X” above in the figure: it is outside the statutory authority granted by the legislatures (the blue box). Note: if the agency rule is also unconstitutional, then it would be like the red “X” in the figure above: it would be outside the statutory delegation and outside constitutional limits.

Page 19 of 115 environmental law? Practically, it means something different to each person. To me, it represents a formal process for resolving disagreements about how we interact with nature. To others, it is a promise of protecting vital resources for future generations (ensuring sustainable living). No matter your view, environmental law is an important tool in confronting environmental issues. It has developed historically from the context of waste prevention to more recent uses including the protection of biodiversity through such laws as the Endangered Species Act. If you were to categorize levels of importance in environmental law, you might find most laws deal with human health protection. More recent laws expand to cover issues we might categorize under sustainability and aesthetics (the protection of biodiversity and wild and/or scenic places). Whether these environmental laws should focus more on balancing harms or banning them depends largely on your perspective (whether you think economically or ecologically). END OF SECTION.

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III. How to Find the Law?
We have been introduced to some of the policy that drives law (including some questions of equity and fairness). We have also been introduced to the concept of environmental law (from the question of whether we need such laws), and we established the source of environmental laws (the power from which the U.S. government derives the ability to regulate the environment – from the Commerce Clause of the U.S. Constitution to the statutes created by Congress to legitimize policy directions). Before we dive into specific U.S. environmental laws, we must first establish some understanding on how to find the law. We discuss this important topic because, while understanding abstract principles of law is important, the ability to find the law is an necessary tool for those who wish to fully understand the legal process.

How to Find the Law
There are two different categories of law in U.S. jurisprudence: statutory law (or law made by legislation), and common law (legal principles that exist without being reduced to codification or the process of legitimating legal concepts into a statutory framework).26 The main differences become obvious after working with the materials a bit. Statutory law is passed through the legislature, and (usually) implemented by the executive branch. Examples at the federal level include the Clean Air Act, which was passed by the U.S. Congress, and signed by the President to become law.27 Common law, by contrast, is law

This gets us into civics and government a bit, reflecting the discussion about the branches of government and separation of powers discussed in the previous lecture. To refresh our recollection and for summative purposes, our nation creates formalized laws through a governmental process based in the separation of powers doctrine: three braches of government (legislative, executive, judicial) that share the powers of government to act as a check-and-balance on one another. Statutory laws are created by the legislature and presented to the executive for implementation. When a question arises as to the validity of those laws, the judiciary helps interpret those questions. Common law does not exist through an official process of government (there has been no debate in the legislature, the passage of a bill, or the presentment and signing of a bill by the executive). Rather, common law is historical in its roots and comes from accepted ideas that are the foundation of our legal principles. Also, common law is most often defined through interpretations by the judiciary (brought to life through judicial decisions). Meanwhile, statutory law is defined by the legislature (and only limited by judicial interpretation, such as constitutional limits on what areas a statute can cover and how it may be applied in particular instances).

The Clean Air Act contains statutory goals of cleaning up past pollution and ensuring the air remains at a certain level of ‘cleanliness’ now and into the future (known in the statute as National Ambient Air Quality Standards (NAAQS)). The Act goes on to devise a methodology for establishing these standards through the use of criteria pollutants

Page 21 of 115 that is common to our culture and traditions. It has been passed down through the ages. Some refer to our particular type of law as Judeo-Christian influenced law. We actually inherited our common law from England (most of it anyway). We will be dealing with examples of this type of law in future chapters and there is a good deal of discussion on the different kinds of law in the pollution module.

Statutory vs. Common Law Principles
The differences between statutory law and common law are important to understand when thinking about environmental law in context. Most major environmental laws we will be dealing with in this course are created under statutory law. Examples include the following: • • • • • • The National Environmental Policy Act The Clean Air Act The Clean Water Act The Endangered Species Act The Resource Conservation and Recovery Act The Toxic Substances Control Act

These are all statutes that were passed by Congress to deal with specific environmental issues that arose over time and were supported by public opinion, thus creating the policy atmosphere persuading Congress to take direct action. When Congress took action to pass these laws, it did so under its Commerce Clause power of the U.S. Constitution – the ‘source’ of power for Congress to act when it passes statutes aimed at protecting the environment. Common law also influences environmental law in a number of ways. For example, environmental harms may ‘trigger’ a statutory violation within one of the statutory laws identified above, but this is not always the case. However, common law may provide a means by which an environmental harm may be redressed through our legal system. When we review pollution, we will review both private and public forms of regulation. While public forms of pollution usually include statutory law, many of the private forms of regulation (like nuisance) provide remedies based on the facts presented in the case. Thus, in some situations, common law can be used to fill in gaps between statutory laws when protecting the environment. Even so, there are limitations to the application of common law principles in advancing environmental goals. One such limitation is that common law is usually focused on the specific situation, but the action does not apply generally to an environmental harm. Thus, unlike many of the environmental statutes we (measuring certain things in the air), and then requiring plans be made to meet the standards on a state-by-state level (State Implementation Plans, or SIPs). The Environmental Protection Agency (EPA) is delegated the authority under the Clean Air Act to carry out its statutory purposes and goals. As an executive branch agency, the EPA then makes rules to help it enforce the mandates of the Clean Air Act and otherwise implement its statutory goals.

Page 22 of 115 will be examining, common law is usually limited to case-by-case judicial review of harm. As such its ability to protect environmental assets is limited.28 Examples of common law include the following: • • • • Nuisance (pollution, land use) Easements (land use) Covenants (land use) Adverse Possession (land use)

The Role of Judicial Review
Recall from the previous lecture our hierarchy of laws and how this hierarchy creates a set of standards by which laws are judged (visually recreated here):

For example, a statute passed through legislation that does not comport with the minimum requirements of protection set forth in the U.S. Constitution will be found unconstitutional. But how do we know when this law is unconstitutional? This is the role of judicial review; judges help us understand what the law means in context. A law that is passed by the legislature and signed into existence by the executive is presumed to be legal. However, if the law is challenged, say on constitutional grounds (either facially meaning the entire law is unconstitutional, or as-applied meaning the law is unconstitutional as it is being applied in a particular instance), it is up to the judiciary to

We will see a clear example of these limitations in our review of nuisance as a common law (private) means of regulating sources of pollution.

Page 23 of 115 help us interpret whether the law is valid under the circumstances. In this way we can see how the several braches of government help us to know what the law is.

Questions of Jurisdiction: State and Federal
In further discussing where to find the law, the text identifies the varying levels of government where the law can be found. It is important to note the law can be observed at the federal, state, and local levels. At the federal and state levels the law is usually called statutes or codes. At the local level, the law is usually referred to as ordinances. Sometimes, laws delegate the making of rules to regulatory bodies called agencies. Agencies who have been given the authority by law to make rules pass what are called regulations. Much of environmental law is run by regulations. Let me give an example. If you are a homeowner who wishes to develop a portion of your land close to wetlands in Massachusetts, you must go through a number of administrative steps (comply with a number of rules).29 Locally, you must request a permit to build, which must be reviewed by the local Conservation Commission. The Conservation Commission is actually a local agency that was created by state law, which is given the power to make local rules, and carry out the requirements of the particular statute. Beyond the Conservation Commission lies the Massachusetts Department of Environmental Protection, or DEP. They are the state agency that was created by another state statute that administers environmental issues at the state level. Beyond the DEP lies the federal Environmental Protection Agency, or EPA. They are the federal agency that lies beyond all state agencies, and develops rules to comply with the many environmental responsibilities passed onto it by the U.S. Congress. It is entirely possible that Massachusetts’ residents will have to deal with the rules of one or more of these agencies (depending on what one is contemplating doing to their property and the proximity of wetlands to the property). Remember, one of the purposes of these several agencies is to protect wetlands from human impact. Sometimes these regulations may seem to unlawfully limit one’s ability to use their private property. We will discuss this under takings doctrine in the land use materials. Beyond the different types of law, there is the issue of different courts to interpret the law. In the U.S. there are two main types of courts: federal courts and state courts. Generally, federal courts interpret questions of federal law (but there are variations depending on some technical jurisdictional issues). State courts interpret state law (again with variations). You can see in the text how both systems have lower courts, and courts of appeal. The highest court (of whose decisions both state and federal courts must abide by) is the U.S. Supreme Court. When there is a unique question of law to be decided, or when lower courts in different jurisdictions cannot decide on a point-of-law, the U.S. Supreme Court determines the state of the law, and its interpretation is final. It is important to know this hierarchy because if you are reading a case that has been decided by the U.S. Supreme Court, you know that case represents a statement of the law that all

Information about wetlands protection in MA can be found here:

Page 24 of 115 jurisdictions must follow. To the contrary, a State Supreme Court decision is only good law for the courts of that particular state. The decision has little to no weight in other jurisdictions. These concepts can be a bit confusing, particularly when one is trying to understand what precedents of law apply to them in a particular instance. For example, a person developing a policy directive towards sea level rise in coastal Connecticut may be interested in what laws apply to restrictions on development of private property along the coastline because an important part of a proposed policy direction is to limit development along coastal areas to better protect against sea level rise. In this case, the legal focus would be on Connecticut property law (state property law) as a starting point. This is because the issue of regulating real estate is a local, state-by-state issue. Thus, the starting point for determining the rights and responsibilities of local property owners relative to coastal restrictions would reside in state court. Moreover, the questions on the ability of a state agency to regulate coastal property to protect against sea level rise would also be judged under state property law principles. However, this would not be the end of the analysis. Depending on the manner of the regulation being enacted, the effect of the regulation can impact federal constitutional protections of private landowners, specifically the Fifth Amendment of the United States Constitution’s prohibition on the taking of private property through government regulation without paying just compensation.30 This legal question poses federal constitutional law principles. State courts can hear such questions of federal law because they have general jurisdiction to decide both state and federal law issues. But federal courts can also be a proper jurisdiction for the federal constitutional question. The ultimate choice of where to file the lawsuit (state or federal court) is usually part of the strategy of legal counsel depending on factors (likelihood of success in the different forum, etc.) that are being considered.31

For those interested in understanding the legal issues that arise under sea level rise adaptation strategies (policies), particularly the Fifth Amendment considerations, please see the following article:

Forum shopping (the technical term of choosing between different courts) is an important strategy often employed by legal counsel to increase the likelihood of success on the merits of a legal claim. For example, if legal counsel feels the federal constitutional claim is the strongest legal argument, and further believes the federal courts are better equipped to understand this legal argument than the state court, then counsel may choose to file the case in the federal court system. However there are potential consequences. For example, by choosing the federal court, counsel may be forced to remove the state law property claims because the federal court is a court of limited jurisdiction and generally does not hear legal claims outside of its direct jurisdiction (contrast with state courts that have plenary – general – jurisdiction). The choice to abandon a state law claim in the case needs to weighed against the likelihood of success on the federal claim and the impact this would have on the ultimate recovery by the client (private landowner).

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At the conclusion of these materials, you should have a good understanding of how to find the law. You should know the difference between common law and statutory law. You should have some understanding of what agencies are, and how they develop and implement regulations. Finally, you should understand the court system, the notion of precedent, and have some idea of the difference between federal and state courts. We will now be moving into the actual legal context, and discussing specific federal laws that have been enacted for the protection of the environment. As we discuss these various environmental legal frameworks, make sure you carry forward the context provided in these first three modules. In particular remember the following principles: • First, the law is the outgrowth of policy development; law follows policy directions and is usually represented as the implementation phase of policy. Environmental law, therefore, is a representation of policy preferences related to the environment. These preferences usually include a hierarchy that places humans at the forefront of consideration. This means we will tend to see most environmental laws as standards to protect human health and wellbeing. The manner in which we go about protecting human health and wellbeing is closely connected to our assumptions about the background natural system and human beings. An ecological, systems-based perspective suggests maintaining the integrity of the Earth system (protecting the environment for environment’s sake) is the superior way of ensuring human health and wellbeing today and into the future. An economic perspective might focus more on weighing the relative benefits and costs of a particular activity without expanding that consideration to the entire Earth system, essentially without aggregating those benefits and costs collectively. Which side of this ‘coin’ you agree with more helps to shape how you interpret both the purpose and effectiveness of environmental laws as a means of achieving policy objectives. Second, the law has structure. The hierarchy of laws and separation of powers doctrine helps us understand this structure and place it into a conceptual framework we can use in understanding environmental laws in context. For example, the U.S. Constitution is the supreme law of the land and thus trumps both statutes and regulations that are in direct conflict with constitutional protections. In addition, agency conduct (most of how environmental laws are ‘implemented’ in the U.S.) must be in accordance with the ‘box’ created by Congress under a statutory delegation; the agency action must have been approved by Congress when passing the statute, i.e., it must be within the space created for the agency to act under the statute. Any agency action found to be outside its delegated authority is void as a matter of law.

Understanding these principles and frameworks are essentially to making sense out of environmental statutes and thus placing them into a policy-relevant context. Having some

Page 26 of 115 mastery over these frameworks will help you better understand, analyze, and critique the environmental laws we will be reviewing in this course. END OF SECTION.

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IV. NEPA - Overview
We begin our exploration of specific federal environmental laws with a statute that was passed as a comprehensive planning requirement that gets incorporated into most federal actions that have the potential to impact the environment. The concept we need to understand here is that federal laws to protect the environment can be more than regulatory in nature; federal laws can also have planning goals that help to ensure policy directives are met. As such, we can begin by looking at a programmatic statute that is very much like an overarching policy directive; rather than regulating a particular medium of the environment (like the air or water), this statute looks at any government activity that has the potential to impact the background state of the environment (its current condition) and seeks to address this impact by asking fundamental questions about alternative ways of accomplishing the action that creates less of an impact on those environmental assets.32 The National Environmental Policy Act (NEPA) is a federal statute passed by Congress with a stated goal of ensuring the environment is considered prior to any major federal actions. The role NEPA plays in federal law is one of scoping and planning; it forces government to do the following: • Think about the potential environmental impacts of a proposed project before engaging in the project;33


Note the idea of looking at the impacts of a proposed activity (like building a highway) on the existing environment is some acknowledgment of the ecologist perspective discussed earlier in the materials. Inherent in the idea of looking at potential impacts on current background states of the environment suggests those background states are important, just like the natural system theory proposes. We should consider this major assumption behind NEPA as a planning statute as we will certainly see some of the counter arguments of NEPA based on its additional costs when viewing the requirements in the context of the particular project under review (costs in terms of delay of the project, assessment costs, alternatives analysis, etc.). These ‘cost’ arguments are similar to the economist viewpoint and may highlight a preference of immediate human wellbeing over the aggregation of environmental harms that might accrue to future generations.

Consider the fact that NEPA requires an assessment of potential environmental impacts before any activity has occurred. This kind of proactive consideration of environmental harm is fundamentally different from the reactive nature of many environmental laws. Recall the earlier lectures where environmental laws were said to be mostly reactive (and thus remedial) in nature. The Clean Water Act was used as an example, where years of degrading water quality resulted in Congress finally taking action to remediate and ensure the quality of the nation’s waters. NEPA is different as an environmental statute because

Page 28 of 115 • • Identify and assess the environmental impacts where such impacts are likely; and Minimize those impacts to the extent practicable by identifying alternative strategies for the government action.

NEPA does not prevent government from acting in a certain way, but it makes sure that government considers environmental consequences of its actions. Imagine if we all had an ‘environmental voice’ in our own heads that always made us think about the environmental impacts of our actions before taking action; NEPA is like this little voice, requiring government to consider the impacts of its actions on the environment. NEPA is often criticized as being wasteful and time consuming, preventing important economic activity from occurring and unnecessarily adding to the costs (time and money) of projects.34 On the other hand, NEPA is also lauded as being a steward of environmental awareness, providing sound policy options for government actions that have a likelihood of impacting environmental values.35

NEPA Overview
The National Environmental Policy Act (NEPA) was passed at the beginning of the environmental movement in the 1970s. It was actually signed into law by President Richard Nixon. What is most important about NEPA, from an environmental context, is its scope; NEPA applies to any Major Federal Action, Significantly Affecting the Human Environment. We will discuss exactly what this means in detail, but I want you to consider this potential scope of federal government activities. Imagine, for example, the Clean Air Act applies to one environmental medium, air. The Clean Water Act? water. The Endangered Species Act? Certain species that have been determined to be threatened or endangered to the point of extinction. While these three laws are important in protecting the environment, they only deal with one specific medium at a time. NEPA, conversely, deals with ANY activity (with certain conditions) that has the potential to impact the environment. So, you should understand NEPA is important for no other reason than it covers a wide scope of conduct that may harm the environment.

it asks government to think about environmental consequences prior to taking action. Of course proactively considering environmental harm is a bit difficult in implementation because it is hard to identify all of the potential impacts of an activity before it has occurred. Still, by conducting an environmental assessment (engaging in scientific observations) prior to taking action, a lot of the potential impacts on existing environmental conditions may be determined.
34 35

The economist argument. The ecologist argument.

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Purposes of NEPA
NEPA has a dual purpose that can be divided into an external function and an internal function as follows: • External Function: Inform the public about the potential environmental impacts of a proposed government action. Through NEPA, including the public disclosure requirements of the conducted environmental assessments, the public is made aware of the potential impacts of a proposed project prior to the project actually taking place. This allows the public to be educated and understand the potential impacts; it also allows the public (through administrative public hearing requirements) to voice their concerns about the proposed environmental impacts and provide comments about preferences (agreement or disagreement about the project in light of environmental impacts).36 Internal Function: Improve decision-making. Beyond informing the public about the environmental impacts of certain government actions, NEPA also seeks to improve the decision-making function of government when it chooses to engage in actions. The specific improvements sought center around the impact of government decisions on environmental assets. By engaging in the process of environmental review, government is afforded the ability to better understand the potential consequences of its actions on environmental resources. Through this internal education, government learns not only of the potential environmental impacts, but is also able to think about alternatives: ways of changing their proposed activity to mitigate (and even prevent) the environmental harm. Sometimes these changes can be done with slight modifications to the proposed project (for example changing the site of the project to protect critical habitat). Other times the modifications must be substantial, sometimes so substantial that the proposed activity is not longer seen as a viable option and the project is abandoned.37


Consider that without NEPA many of the potential environmental impacts of a government project might go unnoticed. Even when noticed, the impacts might go unreported to the public. Thus, NEPA allows for a transparency between government actions and environmental impacts; the public is made aware of the potential impacts, and through this awareness there is a feedback opportunity where citizens can voice their concerns over the environmental impacts. If we are wearing our policy hats and thinking about the importance of transparency and public opinion in democratic systems, we may see the value of NEPA as a source of information to the public about environmental impacts of government actions. The extent to which we might agree with such outcomes is also dependent on how we feel about the costs incurred in such a process, particularly whether such costs aid or detract from efficiency in government actions (our economist/ecologist argument brought forward). 37 Again, there is no requirement in NEPA that a proposed project be abandoned; the statute itself does not require government to abandon a project. However, through the process of review and public disclosure, there may be practical reasons for government to

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Timing of NEPA
Section 102(2)(c) of NEPA indicates a federal agency must do an environmental analysis when there is a recommendation or report on a proposal for action. This is an interesting, and somewhat ambiguous, part of the statute as it concerns the timing of a NEPA review. Consider this in context: when precisely would you identify a NEPA review is required under this terminology? Practically, when would you want to do a NEPA review? Would you want to engage in all the preparation of a potential project, say choosing the location and engineering requirements of a proposed dam? Would you do all of the preliminary work first and then engage in the environmental assessment under NEPA? The statutory requirement seems to indicate NEPA can be done after a recommendation or report on a proposed action is issued, meaning after one has determined the location and logistics of the dam in our example here. But does this make practical sense? Would you want to engage in all of this work up front only to learn later that an endangered species lives on the proposed site of the construction? Some would argue the environmental assessment should be done either before or simultaneously with the review of the proposed activity; that way resources are expended as efficiently as possible, and expectations are tempered by the inclusion of the environmental assessment along with the analysis of suitability for the project outside of environmental considerations. However, it is certain that NEPA analysis must occur, and a failure to provide such an analysis before beginning construction on a project would violate the explicit requirements of the statute. A visual representation of timing considerations for NEPA is presented below as a means of conceptualizing the way in which NEPA requirements can be internalized into the decision-making process when government is proposing an activity that may impact the environment:

choose to abandon a proposed project based on the extent of environmental impacts identified in the assessment process as well as the public response to the environmental impacts identified. For example, the administrative public notice and comment process can result in public outrage towards a proposed project. Such outrage may make the potential project politically infeasible, not because NEPA requires the project to be abandoned, but because the process of fact finding (environmental review) and transparency (publication of findings) has show the project to be unsupported by public opinion.

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To What Does NEPA Apply? Major
As stated in the book, NEPA only applies to major actions. So, of course, we need to determine what is major within the context of NEPA. What you should learn from the text is major is context dependant. This means one has to look at a project, in context, to determine if it is major enough for NEPA review. A good example to clarify the context issue is to consider a 30-story building. It certainly seems major, but let us consider a context to be sure. Consider this building is being erected in a small town. Since it would be the first 30-story building in the town, it would most likely be considered a major action simply because it is ‘major’ in comparison to all of the other buildings in the community; in context of all other buildings in the town, a 30-story building is ‘major.’ Take the same building, and place it in Manhattan. Because so many buildings in Manhattan are at least 30 stories, it is unlikely a major action for Manhattan purposes because, in the context of Manhattan, a 30-story building is relatively commonplace amongst the other structures in the city. Thus, we see the context analysis when determining major under NEPA. It is important to understand the contextual nature of NEPA because this means there is no absolute definition of what NEPA might apply to. Rather, NEPA is contextdependent, so an analysis of whether NEPA requires an environmental assessment prior to moving forward with a government project will always depend on the context of the situation. Even a small planned government project cannot be categorically exempted from NEPA review just because it is small in scale. Rather, the project must be looked at

Page 32 of 115 in the context of the area in which it will take place; if the area has sensitive environmental assets (say critical habitat for a listed endangered species), then there is a greater likelihood the context of the small project (the sensitive habitat upon which it will be built) may trigger an environmental review where the same project would not trigger such a review under a different context (an area where no endangered species habitat existed as an example).

The term federal in NEPA seems to significantly limit its application; if it only applies to federal actions, then it really does not have a wide application, right? Not really. When we start to consider all of the activities that involve federal action, we can see NEPA carries a wide scope. Consider, have you every taken out a student loan? Have you ever purchased a car with a loan? Have you ever financed a home? Do you have a bank account? All of these activities require some form of federal action. For the student loans, the federal action is through insurance guarantees. For the home and auto loans, there are federal laws controlling the loan process. For the bank account, the federal government insures the account (FDIC insurance). Now that you have some idea of how expansive a federal action can be, consider what types of federal acts might have impacts on the environment. I personally think of any form of development first. Developers require financing and insurance. Almost all significant financing projects have a federal component. Also, there are other environmental laws that require permitting through the development process; most of these permits are granted by the federal government or require some form of federal approval along the process. This is the same for oil and gas leases in the public lands of the United States, both of which require federal permits. The Big Dig – a major project to improve traffic congestion in and around Boston, MA – was financed in large part by federal money; it also required federal permitting. Most highways (state and federal of course) receive financing and permitting from the federal government. As shown in more detail in the text, the term federal applies to more actions than we initially think. Even when a project might not be considered federal but is still connected to public activities, NEPA-like processes may still apply. Most states have a state statutory equivalent to NEPA that requires all major state actions that may significantly effect the environment engage in an analysis of environmental impacts and assess alternatives.38 While we don’t focus on the state equivalents in this course, you should be aware that a failure to meet the ‘federal’ requirement as identified above does not mean the assessment of environmental impacts ends. From a policy standpoint, environmental impacts are generally considered if there is a government action, whether that action is federal or state in nature.


For example: Massachusetts (MEPA): California (CEQA):

Page 33 of 115 One item to mention here that does affect a determination of federal action is the term ‘action’ identified in NEPA. When there is an obvious federal actor, the only other question is to consider the kind of action taking place. If the action is discretionary in nature, meaning the federal agency has discretion on whether or not to act, then there is almost universal agreement discretionary federal acts constitute ‘federal’ action for NEPA purposes. However, where the action is nondiscretionary, meaning the environmental impacts of a project are based on actions that a federal agency is commanded to take (for example by congressional mandate under a statute), there generally is no NEPA requirement triggered because there is no discretion on behalf of the agency in whether or not to engage in the action. Thus, we can say that NEPA only applies to discretionary federal acts; NEPA does not apply to nondiscretionary federal actions.39

Whether a proposed action is ‘significant’ under NEPA is closely related to the ‘major’ analysis described above. What this means is the idea of ‘significance,’ like the idea of a project being ‘major,’ is context dependent. Sometimes a project is limited in scope, and in isolation, does not appear to be significant. An example might be the permitting and building of a small section of a highway; the section itself might be relatively small in scale and it might be placed in an area where there is little environmental concern. However, if the entire project is considered (a section of highway does not have a purpose onto itself – it only makes sense as part of the entire highway contemplated), then the project may be deemed ‘significant’ in this wider context; for example, the project might show future segments of the highway traverses endangered species habitat. This is the issue of segmentation, and it highlights the importance of thinking about significance in context to the project itself, just like whether a government action is deemed major under NEPA is also considered in context.40

For certain, the term environment under NEPA includes any physical aspect of what we might consider the ‘environment’ (land, water, air). However, it also includes non39

In addition, NEPA does not apply to direct presidential action (when the President of the United States takes direct action). NEPA only applies to federal agency action (executive branch actions excluding direct presidential action).

Note that this argument is very similar to the difference between economists and ecologists viewpoints about the environment. The idea of segmentation poses the question of how we look at proposed government projects for the purposes of determining environmental impacts. Do we focus solely on the immediate project under consideration (the economist viewpoint), or do we take a longer view of the issue and think about the fuller impact of the project over time (the ecologist viewpoint)? In answering this question we likely need to consider the policy behind NEPA as a statute and think about the goal(s) it is trying to achieve in relation to environmental protection.

Page 34 of 115 physical aspects of the environment. This can include cultural, historical, and aesthetic values. An example may be a proposed development on a Native American burial site; while the development may have minimal impacts to the surrounding physical environment, it may significantly impact the cultural and historical value of the burial ground. The same argument can be used for archeological sites. So, NEPA takes a generally expansive view of what is considered environment, going beyond what we may initially think.

The NEPA Process
Now that we have the main elements of NEPA, let us look at the actual process of NEPA (how it is actually implemented). Consider the following questionnaire showing the general NEPA process: Is there a major federal action that may significantly affect the environment? • • Yes: Then do an Environmental Assessment (EA). No: Then there is a Finding of No Significant Impact (FONSI), and the project can move forward without further environmental review.

EA: Does the EA show a federal action that will likely have a significant impact on the environment? • • Yes: Then must do a full Environmental Impact Statement (EIS). No: Then there is a Finding of No Significant Impact (FONSI), and the project can move forward without further environmental review.

EIS: Does the EIS show the federal action will significantly impact the environment? • • Yes: Then must consider alternatives to the project, including the no-action alternative. No: Then there is a Finding of No Significant Impact (FONSI), and the project can move forward without further environmental review.

A visual representation of this decision tree questionnaire of the NEPA process is presented here:

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This questionnaire shows the general NEPA process. If there is the possibility of a project significantly affecting the environment, then the agency must do an Environmental Assessment (EA). This is a basic procedure, where the potential affects of the project on all environmental resources are reviewed. If the EA reveals a strong likelihood of environmental harm, the agency must engage in an Environmental Impact Assessment (EIS). This is a more formal procedure than the EA, where the agency does a detailed environmental analysis, discussing how each environmental factor will be affected, and stating the alternative actions to the proposed activity. If no environmental harm is shown at either the EA or EIS stage, then the agency indicates a Finding Of No Significant Impact (FONSI). The FONSI informs everyone that the project will not significantly affect environmental values at the proposed site. Now that we have discussed the general procedure required in a NEPA review, let us discuss the effect of NEPA, i.e., does it really do anything?

The Effect of NEPA
One thing should become apparent under a close examination of NEPA; if you look at the flow chart above, you realize NEPA requires agencies of the federal government to engage in a review process of actions that may affect the environment. Many wonder if this actually changes projects, or stops them from going forward. In other words, is there a part of NEPA that requires a project to be stopped when there is a finding of major impacts to the environment? The answer is a surprising NO. NEPA is mostly a

Page 36 of 115 procedural statute; this means it requires a procedure to be followed, but does not require a specific result. Thus, where a project is shown to cause significant environmental harm, there is no requirement under NEPA the applicant change the project (or stop it altogether). There may be other statutes that require the applicant change their project (or stop it), but NEPA does not require such a result. The goal or effect of NEPA is to ensure the environmental effects of a proposed project are fully considered prior to moving forward with the project. This full consideration is done through the environmental harm analysis, and the requirement under NEPA that all alternatives to the proposed project are considered, including the no action alternative. Although NEPA is not intended to prevent federal actions from moving forward, this often results when the process shows there will likely be significant impacts on environmental assets. During the information gathering stage, government entities are able to better assess the potential impacts of their proposals on environmental assets (the internal function of NEPA); often this internal deliberation results in a decision to alter the project to protect sensitive environmental assets, and when this cannot be done, a decision to drop the plan altogether may result. In addition, the external function of informing the public about potential environmental harms may result in a public backlash towards the project. Since government is receptive of public sentiment in a democratic system, there is a likelihood that a strong enough outrage over the proposed project can also result in an abandonment of the project. Finally, there are also judicial impediments to projects moving forward when NEPA requirements are not closely followed. When government has failed to do the environmental analysis under NEPA, or the analysis has been completed but a group is able to show the government has failed to meaningfully consider the alternatives, including the no action alternative, then a judge may order a project halted (and even removed if already built) in order to comply with the NEPA review process. Many environmental groups enforce this procedural requirement of NEPA by suing the federal government when they believe it has failed to consider the alternatives to a proposed project. The additional costs and burdens placed on government to comply with NEPA’s requirements can act as a disincentive to move forward with the project under the conditions presented.

Cape Wind
Cape Wind represents a recent example of how the NEPA process is employed (for good or bad) to determine the environmental effects of a proposed project. The actual EIS can be viewed with a quick net search.41 Let us run through the NEPA analysis above (for ourselves) as it relates to Cape Wind. First, is Cape Wind a major action? Well, it stands as the first major federal offshore wind project in the United States. The fact it would be the first such project would likely

One link is here (note the section on “NEPA Documentation”:

Page 37 of 115 propel it into the major category because of its context. Is the action federal? This is easy, as the facility is an energy generation facility, so it requires federal permitting. Also, it will be placed in federal waters (not privately owned and outside of state jurisdiction), so it needs a permit for its location (actually a lease for the space). Thus, there must be federal action. Is the project significant? Going back to what I have said above, if it is major, it generally is also significant. However, consider the uniqueness of the project, and the fact of where it will be placed; it is arguable the project can be determined significant simply based on its unique nature (at least for the United States). Beyond its “first of a kind” status, the project is also substantial in scale (you can review the link provided in the footnote for precise details – it keeps changing) and is likely therefore significant for this reason as well. Will the project harm the environment? This is where the analysis gets interesting. If you look at the EIS, you will find there are limited affects on the physical environment. This is so much the case that it is hard to see the significant impact on physical environment alone. However, as stated above, environment includes historical, cultural, and aesthetic values as well. Can anyone guess what aesthetic value (and cultural to a degree) has been the main sticking point for the project? If anyone guessed the view from the Kennedy compound (as well as other Cape areas), you guessed right! In fact, you can find the aesthetic impacts on the EIS website for Cape Wind. And recently, additional cultural considerations have been identified including a claim the project creates a visual disruption for certain groups of Native Americans who have traditionally used the unobstructed of Nantucket Sound as a place of ceremonial significance. So, Cape Wind is really a good example of how an extended definition of environment has frustrated the Cape Wind project. At the same time, it helps to explain how powerful NEPA is in the overall environmental assessment of projects in the United States. Indeed, NEPA can be used as both a shield for the environment as well as a sword for those who are interested in using legal instruments as a means of advancing personal agendas.42

In this section you should have a good understanding of the purpose of NEPA (what it is meant to do) as well as a solid foundation of the process and effect of NEPA. As stated, NEPA has an intended goal of ensuring the environment is considered as part of government activities, particularly government activities that have the potential to significantly impact environmental assets. One cannot help but note how this desire to protect environmental assets (as they exist today) is some recognition of the importance of background environmental conditions. Such recognition gives support to the ecological viewpoint that focuses on interactions of the natural system and places the

It should be understood that the law is often utilized strategically to advance personal agendas, even when those agendas are not part of the policy goals defined within the law itself. For a more detailed exploration of how this might work in practice (within the context of fishery management), please see here:

Page 38 of 115 environment as the outer limit upon which human society and economic activity is constrained. Recall the figure used to make this point earlier in the course (copied below here):

If this assumption of the relationship between environment, society, and economic activity is found in federal environmental statutes like NEPA, then we should consider its importance in how we perceive environmental laws generally. We will find some variation from this theme in other areas of environmental protection later in the course. For now, we can see that this goal of NEPA can have a profound effect on the immediate economic interests of society; NEPA can retard economic prosperity by slowing, and sometimes preventing, federal activities from moving forward. Whether we see this as an important check on our actions, or as an unnecessary limitation harming human wellbeing is an important part of the policy debate that surrounds environmental laws generally, and NEPA particularly. Once again how we ultimately decide the value of NEPA is highly dependent on whether we subscribe more towards the ecological or economist ends of the spectrum. END OF SECTION.

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V. NEPA - Remedies
Now that we have some understanding of NEPA, it is time to take a closer look at the remedies portion of the statute. Let us think about this term, remedies, for a moment. As the text states, what if a federal agency fails to follow the procedures required under NEPA? What precisely are these procedures that need to be followed? Where does the evidence come from to prove a ‘breach’ of NEPA requirements, and what is the standard of proof applied by the courts? What is the normal judicial remedy offered in such situations? What if the proposed remedy would substantially interfere with an important government policy (like national security)? Will the Court change its proposed remedy? These are all important questions to consider in order to fully understanding the implications NEPA has for the protection of the environment. (Remember to always consider in the policy implications outlined at the beginning of this course.) While many of these statutes are aimed at protecting the environment, the application of the statute may interfere with other important functions of the government (like national security as stated above). Using the concept that national security provides an exception to environmental regulations, one important question that often recurs in the environmental context is whether it is allowable to relax environmental protections for the sake of dealing with crisis issues in our society, for example to ensure domestic energy supply or to mitigate the impacts of an economic crisis; if the price of gasoline were to rise in the United States to a point where it was impacting the economic wellbeing of people living today, then would it be advisable to exempt environmental standards contained in statutes to help alleviate the economic strain? How we answer this question brings us back into our relationship between the environment, society, and economic activity. Those of the ecologist camp might argue making such exceptions today only harms the natural system and can potentially cause an equilibrium shift in the system that irretrievably harms the capacity for human wellbeing for future generations. Those of the economic camp might argue the ability for environmental standards to be relaxed in an economically disadvantageous environment is critical if a society is to grow and prosper. The degree to which we might agree with one argument over another helps us understand the role of environmental laws in our society. By viewing how remedies for violations of NEPA are handled, we get a sense of this argument in the context of a planning environmental statute; essentially, we observe what it really means under NEPA to consider environmental impacts when those impacts might also influence other political priorities – in essence whether NEPA has staying power under difficult circumstances.

The Basis for Judicial Review – The Assessment Process
Recall that NEPA requires government entities to engage in a review of environmental impacts on proposed government activities. The first part of this review process is to determine if the activity will likely cause environmental impacts (and also if the government has any discretion to not engage in the activity or alter the activity; where

Page 40 of 115 the government has no discretion43, NEPA does not apply even where environmental impacts will be shown). The second part of the review occurs where there is a potential for environmental impacts from the proposed activity (and government has discretion to alter or suspend the activity). If there is a likelihood of environmental impact, then government must: • • Assess the potential of those impacts in terms of degree (small, significant, etc.) by conducting a cursory environmental review (EA). Where the potential for impact is substantial, then a full environmental review (EIS) must be completed.

This process summarized above follows the following decision tree questionnaire format, copied from the previous module:

Government Decision Not Supported by the Record
From a judicial review standpoint, the parts of the decision-making process focused on by courts include the major questions at each stage of the NEPA process identified above (the red, light blue, and the darker blue questions). Courts are generally available to review whether the government’s decision at each state of this decision tree is supported

For example, if the government is engaging in a nondiscretionary duty identified by Congress through a statutory requirement.

Page 41 of 115 by available evidence. The available evidence, in turn, is based on the administrative record, which includes the government’s own actions (and studies conducted) in order to answer each question, and also any materials submitted by the public (at public hearings, notice and comment periods, etc.) that would give evidence to help support a decision on environmental impacts. For example, if there were clear evidence of environmental harm available to the government (and thus in the administrative record)44 at the very beginning of the process, but the government determined there was no evidence to support conducting an EA (instead noting a FONSI at this early stage), then there would be evidence contained in the record that clearly contradicted the government finding of no significant impact (FONSI). Under such circumstances a court could determine the government’s decision is unsupported by the record. The same is true if the government conducts an EA and finds there is not sufficient likelihood of environmental harm to conduct an EIS, but that finding is contradictory to the information contained in the record on environmental harm.45 If a court finds the government action is unsupported by the record, then it can invalidate the decision and require the government to conduct a proper environmental review in-line with NEPA requirements. Note NEPA does not allow the court to force the government to make a particular decision, but rather to comply with the provisions of NEPA based on the information contained in the record.46

Failure to Consider Alternatives
When an EIS is required (the full-blown environmental analysis), then one must consider alternatives including the ‘no action’ (do nothing) alternative. This alternative analysis

Remember, the evidence must be part of the administrative proceedings held by government when conducting the review. This can come from the government’s own experts or from independent expert reports and information made available to the government through a notice and comment or community hearing as part of the environmental review process.

A clear example of this would be evidence in the record that shows the site for a government development was critical habitat for an endangered species.

Notice how powerful the administrative record is when challenging the government’s decision-making under NEPA. One should be able to see the relevance of “getting on the record” if they believe important information about the area and its environmental assets is not being included in the government review of environmental impacts. This is why many organizations and citizen groups make it a priority to get their information on the record during a NEPA review process; the record becomes the entire universe of information available to a court when reviewing government decisions related to its consideration of environmental impacts on a given project. In a perfect world the government would simply ensure it is conducting a sufficient analysis of environmental impacts prior to making such decisions. However, it is likely that such information is not always obtained directly by government efforts and therefore public participation becomes an important part of the NEPA process.

Page 42 of 115 can form the basis of judicial review when government fails to adequately consider all reasonable alternatives. The way a court determines if government fails to consider alternatives is, again, based on the administrative record. So, for example, if the record identifies that a project can be altered by changing its footprint (where it is located) in such a way that protects identified critical habitat, but the government does not consider this alternative, then there is a basis for a court to hold the government has failed to consider this ‘reasonable’ alternative and therefore has not complied with NEPA.47 Beyond reasonable alternatives, government must also consider the no action alternative, which means government must consider not engaging in the project as one way of mitigating environmental impacts. The no action alternative is generally considered reasonable where the project goals can be achieved in another way and the environmental impacts of the current proposal show a substantial harm on the environment. If the project were building a dam for power generation (the goal), but the dam site is shown to harm an endangered species, then the no action alternative might be reasonable where the harm to the endangered species cannot be mitigated through other alternatives but the goal of the project (power generation) can be achieved in other ways (different projects elsewhere). In practice, the no action alternative is usually established as the baseline from which other alternatives are measured under the full ‘alternatives’ analysis.

The Standard Remedy
The standard remedy for failing to comply with the provisions of NEPA is an injunction. An injunction is an equitable remedy (this means the court issues an order telling a party to do something, rather than, for instance, issuing a judgment for an amount of money). In practice an injunction would be issued where a court determines the agency has: • • Failed to support their decision-making process (EA, EIS, FONSI) by the evidence contained in the record; and/or Failed to adequately engage in an alternatives analysis as required under NEPA.

That being said, not all injunctions are the same. They can be enacted with varying degrees of force. For example, a court could issue a complete injunction on operations. This halts the entire activity, and generally remains in-force until the government agency has fully complied with the requirements of NEPA. An alternative to this would be a

Courts have held that government entities need only consider reasonable alternatives because government would not employ unreasonable alternatives even if they were considered. In the context of NEPA alternatives analysis, “reasonable” means something that is feasible, capable of bringing about the goals of the proposed project. Thus, if government could move a proposed building a few hundred feet to protect critical habitat and still meet the intended goals of the project even after the move, then this alternative would be considered a ‘reasonable’ alternative.

Page 43 of 115 preliminary injunction. In these instances, a court may order an initial injunction of activities because there is some initial evidence that suggests the government may not have complied with NEPA. A later hearing is scheduled where the parties are able to present full evidence on whether or not a NEPA violation has occurred. After this later hearing, a judge will issue a decision either instituting a complete injunction, or lifting the preliminary injunction and allowing work to continue.48 Beyond these standard injunctions, there are many variations. As noted in the text, sometimes the court will weigh the seriousness of the project at issue against the environmental harm committed by failing to fully comply with NEPA. Recent examples generally revolve around national security. There have been numerous instances where the government has failed to follow NEPA with respect to certain activities it deems involves national security. One such instance is the Naval use of new forms of sonar, and other underwater technologies. It is argued these technologies are capable harming aquatic marine life (including marine mammals) because they are sensitive to the sounds produced. The Navy claims the right to conduct tests on these technologies for national security purposes, and further argues it does not have the time to fully comply with NEPA in many cases. Courts have been split on the issue of NEPA compliance (since Congress explicitly stated NEPA should be followed), as there are competing concerns, since national security maintains a strong level of deference in our legal and political system. The text notes two case examples, Concerned About Trident v. Rumsfeld and Wisconsin v. Weinberger, each coming to a different conclusion. The rationale behind cases coming to different conclusions is founded on the principle surrounding injunctions. An injunction is an equitable remedy. As such, courts have the discretion to balance the interests involved. Sometimes, national security is found to take precedence over environmental concerns, particularly where ‘national security’ is seen as a nondiscretionary action by the Department of Defense (recall NEPA does not apply to nondiscretionary government actions). Think about this result from a policy perspective. The concept of equitable remedies sounds like a cost-benefit approach. Indeed, it seems the environment is being balanced against other interests, and it may be the case the environment is found to have less value in some instances. This is even the case where the federal law (in this case NEPA) has been passed to explicitly protect the environment! Does this seem equitable as Stone might define the term? Also, IF the environment is capable of being weighed against other interests, then what is the likelihood one will support environmental protection in tough economic times? Consider what is happening today. Due to rising gas prices, both parties seem to be favoring the opening of offshore oil exploration, something that has not been done for decades in most parts of the country. (Indeed, the democrats have been strongly opposed to this policy until recently). Why would we even consider offshore oil exploration, when our history shows such exploration causes significant environmental harm? Moreover, what about climate change? If we drill offshore (remember, it will

Consider the arguments laid against NEPA in the previous lecture on economic grounds and think about the impact an injunction can have on a project as delays in moving forward can translate into substantial economic harm.

Page 44 of 115 take years to actually being extracting the oil even if we started developing offshore sites today), we are committing to the use of hydrocarbons for decades to come (and an increasing use at that). We were just told increasing greenhouse gas emissions (and thus concentrations in the atmosphere) is the WRONG thing to do! Why would we be willing to sacrifice our environmental security for a short-term economic security? One answer to this question may lie in the way human being behave generally. History has taught us that we are more willing to care about environmental concerns when our basic needs are being met (food, shelter, clothing). When we are being pressed to maintain a basic standard of living, issues like the environment tend to take a back seat to other priorities. Thus, in economic language, we tend to discount the future harm of our actions, and focus more on the short-term results. So, when pressed against the wall, we look to immediate solutions, not necessarily long-term solutions.49 The remainder of the chapter discusses proposed amendments to NEPA. The framing question is whether or not NEPA really works. If it does not, then we need an alternative. Many alternatives have been proposed, to include a constitutional amendment for the environment, and a uniform environmental statute. I would suggest, for many of the policy reasons state above, neither of these are likely to occur in the immediate future. It was politically difficult to get NEPA passed and would be even harder today. Moreover, some might argue there is no need for public controls, especially more laws! Rather, let the marketplace determine the evolution of environmental protection (consider Coase Theorem here). As an example, with oil costing more, technological alternatives are being developed (hybrid cars, wind and solar power, etc.) that consumers are demanding. Without ‘significant’ government forcing,50 industries are moving in this direction to meet this demand.

So, it appears from our readings for the last two modules that NEPA is not a perfect statute. It is mostly procedural in nature, and does not force a particular result. If a government agency complies with the procedures, they are allowed to continue with the project, no matter the extent of environmental harm caused. This leaves the impression NEPA does little to actually protect the environment. However, in reality, NEPA has been shown to be a significant factor in ensuring environmental protection. Maybe the easiest way to think about this is to suggest time is money. NEPA can cause significant

This may help us understand why environmental concerns are not the most pressing issues, generally, in many developing nations. Indeed, there is a historical argument that we in the U.S. did not become environmentally minded until we reached a certain level of affluence after World War II.

Government does set some regulatory requirements including Corporate Average Fuel Economy (CAFE) standards. In addition, government engages in non-regulatory incentive programs to help boost fuel-efficient vehicle demand, such as tax credits for purchasers of certain hybrid and alternative vehicles that obtain high fuel economy.

Page 45 of 115 delays to projects. It also makes the environmental harms discovered public. This transparent process can force significant changes to proposed projects that favor environmental protection. When NEPA is violated, the main remedy is an injunction. While there are exceptions to a full injunction, and while the environment may be weighed against other concerns, NEPA still remains a strong public policy statement that the environment should be considered BEFORE we engage in major federal actions that have the potential to significantly affect the environment. END OF SECTION.

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VI. Pollution: Overview and Private Controls
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.

Overview to Pollution
We are primarily concerned with those sources of pollution that create an imminent threat to human health.51 This history behind pollution controls in the United States has

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);

Page 47 of 115 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 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.52

Lower Priority: Environment for environment sake (Endangered Species Act, Marine Mammal Protection Act, Wilderness Act).


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

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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:

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.53 Understanding this evolution in thought areas). 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.

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

Page 49 of 115 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.54 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 is a “discrete” (specific) source of the waste that is being discharged into the water system.55 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 water’s 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. 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.
54 55

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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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).56 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.57 Standards themselves are based primarily around human use considerations (human consumption, human bathing, etc.). Once water quality standards have been established, then point



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 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?

‘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).

Page 51 of 115 Point Source Controls sources of pollution58 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 NPDES59 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 TMDLs60). 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 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

Establish Non-point Source Controls

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).

59 60

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

Page 52 of 115 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 nation’s 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 party’s 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 it was a national problem and a federal statute was passed in 1970 to comprehensively deal with the problem, the Clean Air Act (CAA).61

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

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The CAA works through the following generalized steps: • First, standards of air quality are established (just like under the Clean Water Act). These standards (NAAQS62) 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 (SIPs63) 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.64 These chemicals found in the air are considered ‘pollutants’ because the meet specific criteria stated under the statute: • • • They are an air pollutant, meaning they’re an ‘agent’ of air pollution; 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

much a reactive policy approach as described earlier in this course as the main way that environmental laws are created in the U.S.
62 63 64

NAAQS = National Ambient Air Quality Standards. SIP = State Implementation Plan

Page 54 of 115 what is necessary to meet those standards (control).65 While the statute is meant to be mandatory, certain areas of the country (due to high population density and unfavorable physical conditions – like LA’s 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.66 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 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

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.

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 55 of 115 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 judiciary’s 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.

A nuisance is the unreasonable interference with the use and enjoyment of another’s 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 court’s 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. 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

Page 56 of 115 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 Webb’s 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 party’s 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.67 Of course, the price being paid here is being set by the court rather than between the parties. Moreover, I’m 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.68 Again, this is another point to consider when comparing between different kinds of environmental law strategies.

67 68

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.

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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 person’s 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 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

Page 58 of 115 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 quality69 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.)

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

For example, the Clean Water Act has a clear goal stated in the statute: to restore and maintain the quality of the nation’s 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.

Page 59 of 115 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.70 (At the very least we may better understand why statutory frameworks exist in the environmental field). END OF SECTION.


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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VII. Pollution: Public Controls
In this section we are focused on understanding how public law controls (statutes) are used to achieve environmental goals. In order to place these materials into perspective we need to bring forward our understanding of private law controls (common law) from the previous module. Recall that a major difference between public and private control mechanisms is the focus between the two; private control mechanisms tend to focus on the individual, while public control mechanisms tend to focus on the environment (at least regarding ‘environmental’ statutes). A visual representation of this difference is copied below for recollection and reference purposes:

In addition to the difference in focus between public and private legal frameworks, there is also a difference in the type of judicial review applied to public and private frameworks. As described in the last module, the role of judicial review in private frameworks, based in common law, is expansive; judges have substantial discretion in fashioning remedies between the parties under common law traditions. We noticed how judges utilized a cost-benefit framework in the Boomer and Spur cases when trying to fashion an equitable remedy between the parties under the common law doctrine of nuisance. What also noticed the substantial freedom offered to judges under common law doctrines can lead to an inconsistency in the ultimate remedies created, particularly in the criteria chosen by the judges and also the weights applied to their chosen criteria. We also observed the focus of this cost-benefit application was really on the entities of the lawsuit (the company and the homeowners), and not really on the environment (the environment was more of the backdrop for the underlying claim of nuisance, but it was not really the focus in fashioning a remedy to the nuisance itself).

Page 61 of 115 In this module we focus on the role of public law in fashioning remedies for environmental harm. We will notice that environmental statutes, unlike common law, place the environment at the center of the legal issue, both in terms of determining a violation of the law and in terms of fashioning a remedy for violations. In terms of the ‘fashioning’ of remedies, we will see that courts are much more constrained in their decision-making when implementing remedies under statutes then they are under common law tradition. In order to make this clear, our analysis will begin with an overview of judicial review of statutory environmental law, and then review specific applications under several environmental statutes dealing directly with pollution.

Judicial Review of Statutory Environmental Laws
In order to understand the constraints of judicial review under statutory law application, we first need to recall our hierarchy of laws discussion (separation of powers) from earlier in the course. To help in our recollection the figure showing the hierarchy is copied here:

Recall that the hierarchy above presents us with a clear understanding of the relationships between different kinds of law. Our focus here in statutory law interpretation is on the “Laws” section above: federal environmental statutes that are passed by Congress with stated purposes and objectives. The role of the judiciary is to ensure these stated purposes and objectives are being carried out and it accomplishes its role in two primary ways: • First, the judiciary ensures the environmental statute (either facially or as it is being applied in a particular case) does not violate constitutional principles.71


A statute can be facially unconstitutional where, as written, the law violates constitutional principles; an example might be a statute that prohibits a women from getting an abortion in violation of the federal constitutional right to privacy. A facially unconstitutional law is rare as it is presumed Congress does not normally pass such laws,

Page 62 of 115 (The courts always have jurisdiction to protect against constitutional violations.) • Second, the judiciary applies an established framework of statutory interpretation to the law that is under review. This framework is based on the language of the statute; essentially the degree to which Congress has spoken on the remedies available under the statute. The court’s job is to ensure the legislative mandates are being followed based on the language of the statute.

Putting aside the constitutional questions (a court’s review of a statute to ensure it is constitutional) let us focus our attention on judicial framework of statutory interpretation. As noted earlier, the amount of discretion available to courts when reviewing statutory law is generally limited in comparison to the amount of discretion available when reviewing common law. To understand this, we must look to the statute itself to determine the intentions of Congress in passing the law and decipher the degree to which the legislature has spoken on the kinds of remedies available under the particular statute, including whether or not judicial review is actually available. The process of determining judicial review is summarized in the following steps: • First, it must be determined whether or not judicial review is available under the statute. o Look to the statute and determine if the express language of the statute allows for judicial review.    If the statute expressly allows for judicial review, then it is available. If the statute expressly forbids judicial review, then there is no judicial review available. If the statute is silent, then the Administrative Procedures Act (another statute) applies regarding judicial review.

If the statute allows for judicial review (either expressly or through silence), then other provisions of the statute must be reviewed to determine the extent of judicial review available.

and under this presumption, courts seek to ‘harmonize’ a statute to find that it is constitutional as written. Alternatively, a statute can be found unconstitutional as applied in a certain setting; the statute is not facially unconstitutional, but is unconstitutional in the manner it is being applied. An example might be a housing statute that is valid as written but is being applied in a way that prevents minorities from gaining access to housing.

Page 63 of 115 o If the language of the statute regarding the kinds of remedies available (the extent of judicial review) is unambiguous, then that statutory language controls (a court has little discretion and simply follows the statutory remedies stated).72 o If the language of the statute is ambiguous, then the court reviews the actions (usually of an agency in enforcing the statute) to see if those actions are a reasonable interpretation of the statute (reasonably likely to meet statutory goals) and otherwise within the discretion granted by Congress in the statute. o If the statute is silent, then a court will review the actions (agency conduct) in relation to other parts of the statute.73 The goal here is to find

Note that often judges are actually reviewing agency actions in implementing statutory goals under environmental laws. Recall that agencies of the executive branch (like the EPA) are often delegated the responsibility for implementing statutory goals. Thus, judicial review of environmental statutes often surrounds the actions of the agency in implementing statutes, including the enforcement of statutes and regulations made to implement a statute. The question under such review is whether the agency is acting within its delegated authority under the statute. Where a statute is unambiguous, then the court looks to ensure the agency action is a direct reflection of the statutory mandate (follows the language precisely). Where the statute is ambiguous, the court determines whether the agency action is within the discretion granted by Congress under the statute.

The review conducted by a court of agency actions is of three primary kinds (referred to as standards of judicial review): • Arbitrary and Capricious Standard: The main query focuses on whether the agency has considered ‘relevant’ factors related to the statute in their decisionmaking, and also whether there has been any ‘clear’ error of judgment based on the facts available to the agency. For example under NEPA review, the notice and comment requirements may bring forth relevant information about environmental impacts of a proposed project. Failure to consider this information may be seen as a clear error of judgment based on the facts presented because a decision is being made about the heart of the NEPA statute (environmental impacts) without considering relevant information related to that decision. In Excess of Statutory Authority Standard: The focus here is on the authority granted to the agency under the statute and whether that authority has been exceeded by the agency. Without Observance to Required Procedures Standard: The focus here is on procedures laid out in the statute and whether the agency has conformed to those procedural requirements. Failure to follow the procedural requirements of NEPA is a clear example.

Page 64 of 115 the degree of discretion granted to the agency under the statute. If the discretion is total, then the court cannot review the agency’s conduct. If the discretion is limited, then the court reviews the agency’s conduct under the express statutory limitations. A visual representation of statutory judicial review as described immediate above is provided here:

What should become apparent to you in reviewing the role of the courts in statutory interpretation is that the remedies are very much dictated by the wording of the statute. Unlike common law, courts are limited in the amount of discretion they have to ‘fashion’ a remedy; the language of the statute really controls (and some might argue ‘hamstrings’) judicial review. This is important to consider from a policy standpoint because it speaks to the overall effectiveness of environmental statutes; the degree to which an environmental statute will be effective in protecting environmental assets is directly related to the kinds of enforcement and remedial mechanisms contained in the statute. If the statute is silent on the exact remedies available, then the amount of discretion the statute grants to agencies for implementation and enforcement purposes becomes critical; greater discretion provides agencies with greater choice in fashioning enforcement and remedial measures to meet statutory goals. However, complete discretion to agencies can be detrimental from a policy standpoint as well. Because agencies are political bodies, the extent to which an agency may be willing to enforce environmental protections will be connected to the political leanings of the executive branch in any particular

Page 65 of 115 administration. Thus, while discretion may be an important part of providing an adaptive capacity to agencies, there is likely an upper limit on the effectiveness of full discretion. So we should now understand that statutory environmental law frameworks are very much drivers of environmental protection, and the precise language of those statutes becomes a controlling factor when we think about the ultimate enforcement of environmental goals. We look to the statutes to determine the extent of judicial review allowed, the kinds of remedies explicitly identified in the statute, and the roles granted to agencies in the enforcement of those goals through the degree of discretion granted to the agencies in the statute. With this understanding of judicial review in-hand, we now turn to examples of public law remedies for pollution.

Public Law Remedies to Pollution
The kinds of remedies available in our legal system are varied and include the following kinds of ‘remedial’ measures:     Holding someone criminally liable for violating a legal mandate and thus placing them in jail (removing their freedom of movement). Forcing someone to pay damages (money) to injured parties and elsewhere as a result of some action. Forcing someone to do something specific, like taking remedial action to lessen the harm caused by previous conduct. Forcing someone to stop doing something through the issuance of an injunction.

We can find examples of all of these different forms of remedies in most environmental statutes. For example, the Clean Air Act and Clean Water Act both contain civil and criminal penalties depending on the violations observed. Under the CWA violations that can lead to both criminal and civil penalties often include the intentional discharge of pollutants into a waterway without a permit under the Act. The CAA contains similar penalties for stationary sources of air pollution (coal burning power plants for example) that fail to utilize the best available technology standards set forth in the Act, or otherwise fail to self report violations of standards set for the particular facility.74 Injunctions are also the tool most often applied by judges at the beginning of litigation; preliminary injunctions are usually used as a means of stopping the activity complained

There are sections of both the CWA and CAA that require self-reporting of violations by certain sources of pollution (companies for example). This statutory requirement has been criticized because the self-reporting can lead to criminal violations under both statutes (usually the heads of the company are criminally responsible and subject to jail time). As such, some argue mandated self-reporting is unconstitutional because it violates the Fifth Amendment protection against self-incrimination.

Page 66 of 115 of while the deeper statutory issues are considered. For example, a claim of a failure to consider alternatives under NEPA may lead to an initial injunction issued by a court to prevent the activity from moving forward while it reviews the basis of the claim, i.e., whether the procedural requirements of NEPA – including consideration of alternatives – was followed.75

Citizen Suit Provisions
One additional consideration in thinking about public law remedies is the role of citizens in enforcing statutory requirements under the various environmental statutes. Recall under private remedies – particularly nuisance claims highlighted in Boomer and Spur – individual homeowners (citizens) has the right to bring actions against the ‘offender’ of the environment in both cases. Generally under common law, citizens have direct access to the court system; once a wrong has been committed (or is about to be committed) the aggrieved party has the capacity (standing) to bring a direct action in a court of law. Under common law, citizens to not have to ask for special permission to bring such actions; standing is presumed in the ability to bring a complaint forward and it is up to the defending party to show a lack of the court’s jurisdiction (say by brining a motion to dismiss indicating there is no jurisdiction because of a lack of merits to prove the underlying claim).76 The right to bring a claim by citizens is not automatic in public environmental statutes. A number of environmental statutes do contain citizen suit provisions, but the ability to bring a suit is not direct. Government generally has the right to bring such a suit first, and only upon failure to take action can citizens (who prove standing) bring a suit in the place of government. There are a number of reasons for this limitation on direct citizen suits and we can consider one aspect of the rationale generally. Note that public environmental statutes focus on protecting the environment rather than protecting humans directly as in the common law. Because the environment is at the heart of the statute (even if human health and wellbeing is the rationale behind protecting the environment), there is not necessarily a direct connection between certain humans and the environment being protected. Congress has chosen in most of these statutes to allow government (via agencies) the discretion on enforcement, and only when government has chosen not to litigate a potential violation do certain citizens have the right to bring a claim. Not all environmental laws allow for citizen suits. For example, the Endangered Species Act (ESA) does allow for citizen suits, while the Marine Mammal Protection Act (MMPA) does not. The CWA and CAA both have citizen suit provisions under limited

We also saw how injunctions were used in private law remedies, particularly nuisance, in order to stop the offending activity while the basis of claim was decided.

An example might be in a nuisance claim where there is no evidence of an offending activity upon which relief (like an injunction and/or damages) can be granted.

Page 67 of 115 circumstances. For example, if you or I believe that a company is violating the provisions of the Clean Water Act (say we believe they are discharging more pollutants into the water than their NPDES permit from the federal government allows), then we may want to bring a lawsuit against the company. However, our capacity to bring that lawsuit will be defined (and likely limited) by the specific provisions in the Clean Water Act that allow for enforcing the provisions of the statute.77 So we may need to contact EPA as the official government entity that may be entitled to bring an enforcement action against the company. But what if EPA is not willing to move forward with our claim? What if they lack the resources to check on the company immediately? This is one major limitation of public laws; they often limit our capacity to bring direct actions against potential violators. Contrast this example with private law remedies like nuisance or negligence; remember that if we can show individual harm and a connection to the company, then we have standing in order to bring a claim against them directly. From a policy standpoint we need to consider the impact limiting individual access to sue on behalf of environmental wrongs (remember the environment cannot sue on its own behalf) has on policies geared to protect the environment. Such limitations are sometimes said to have a ‘chilling effect’ on the purpose of the law. The point here is to understand that the role of public environmental laws is much more comprehensive than private laws. While comprehensive, these laws are limited in a number of ways; first, they are defined by their statutory language, which means Congress establishes the rights and responsibilities of the parties. Second, judicial review is limited to statutory construction; judges are limited in their remedial capacity by the language of the statute. Third, citizen advocacy of violations is limited; government has the primary discretion on enforcement actions under most environmental statutes, and sole discretion (no citizen suit provisions) under certain statutes. Collectively we may see that as comprehensive as environmental statutes may be in scope, they are potentially limited in application by the political nature of their creation (legislative definition) and enforcement. Some might argue it would be better to allow immediate citizen suit provisions for all environmental statutes as a way of ensuring

For example, our ‘capacity’ is defined by a number of factors under the CWA:  First, we must prove standing: o Injury-in-fact (we must show we are injured by the action) o Causation (we must show the injury is caused by the purported violation) o Redressability (we must show the court has power to redress the injury) Second, we must show government is unwilling to seek enforcement action: o 60 day notice to government required under statute (give notice of violation to govt. and then it has 60 days under CWA to determine if it wants to prosecute). Third, under CWA, we can only bring action for future violations (must show continuing violation). Only government has capacity to bring an action for past violations.

Page 68 of 115 better conformity and enforcement of these provisions (ecologist camp). Others would suggest allowing such ease of prosecution of environmental statutes would provide a substantial roadblock to progress, clog up the courts with litigation, and result in unnecessary costs and delays (economist camp).

Special Cases Attainment Areas
One interesting issue discussed in the text is that of attainment areas under the Clean Air Act. There are certain areas of the country (due to a number of reasons) that are CLEANER than the air quality standards require. An interesting policy question is whether these areas should be able to further degrade their air quality? For example, one way to attract industry into a state is to suggest they will be able to pollute a significant amount without any technological controls (which are expensive). While this might increase job opportunities through economic growth of the state, it does so at the expense of air quality. Does this make sense? Does it seem equitable? As the text notes, there are arguments on both sides of the issue. The U.S. Supreme Court ultimately decided the CAA requires high quality air, although this does not necessarily solve the policy implications as states continue to offer their lack of clean air controls as a major incentive to drive business into their jurisdictions.

Emission Credits
Emission credits are a way of creating incentives to create changes in behavior. In the most basic application, a company is given an incentive to reduce its emissions further than is required by law, because the additional reduction becomes a credit that the company can trade with other companies who might need the additional ability to pollute. It can be sold to the other company for a price greater than it cost to achieve the emission reduction, thus giving the reducing company a profit. Even if they cannot sell the credit, they can use it as a tax credit with the U.S. government, creating a failsafe incentive for the industry. This process can be seen as a policy closely linked to the free market incentives favored by economists such as Coase. The policy is created in such as way that it does not force a particular action by a company, but rather creates an incentive for a company to consider reducing their emissions. In a way, by doing this, government is creating a market that embraces a value for clean air. Many experts feel such an approach is a superior method to the traditional command-and-control form of environmental regulation.

Acid Rain
Acid rain occurs when sulfur and nitrogen oxides are generated from stationary sources, and combine with the hydrologic cycle. The resulting rain is hazardous to humans and the environment. Congress controls acid rain primarily through the CAA, but the effects of acid rain can be seen in all aspects of the hydro-geological cycle; it affects our

Page 69 of 115 atmosphere, gets deposited on our land and water, and causes substantial damage to our crops and ecosystems in general. The main cause of acid rain is sulfur dioxide, a main ingredient in many forms of coal. When coal is used as the primary source of generating electricity, it is burned in the process. The sulfur is released, combines with water in the atmosphere, and is re-deposited to the earth. We can control sulfur reaching the air through a combination of technological solutions (scrubbers on power plant smoke stacks), as well as removing the sulfur from the coal prior to burning. Both carry costs that increase the price for electricity paid by the consumer. One interesting policy point about coal and acid rain is the difference in sulfur content between coals found in different parts of the country. In general, coal mined in the eastern part of the U.S. is rich in sulfur. Alternatively, coal mined in the west has lower sulfur content. When acid rain was becoming a significant issue in the 1980s, there was a lot of lobbying being conducted by coal producers from both the east and west. Western coal claimed it provided a superior alternative because their coal had low sulfur content, thus, the need to remove the sulfur was diminished. This meant an easy control on acid rain, while also allowing for lower electricity costs to consumers. Their suggestion was to place different technological standards on power plants if they chose to use western versus eastern coal. If the CAA has created such a standard, it would likely have been much cheaper for plants to purchase from western coal, giving it a significant advantage (while protecting the environment). Eastern coal lobbied hard to ensure no such amendment was made the CAA. It argued for a best available technology standard no matter what type of coal an industry was using. What this meant was an electric plant would have to pay for the SAME technology no matter whether they used western or eastern coal. This would place eastern and western coal on equal ground from a financial standpoint. Of course, this also meant that consumers would be paying higher electricity prices when they could have been paying cheaper prices WHILE protecting against acid rain. Ultimately, Congress sided with eastern coal, and we never saw the benefit of using western coal (at least economically). The point is to highlight how the environment can very much become a side issue in the environmental debate and also how political some of these issues can become.78

Federal Government Jurisdiction Limitations
A few court cases are pointed out in the reading (SWANNC and Rapanos) discussing the extent of federal jurisdiction under the Clean Water Act. The point is to consider (again) the idea that there are limits to federal jurisdiction when considering environmental laws. SWANNC tells us one limit is where the federal government attempts to regulate wholly intrastate bodies of water. In this case, we are talking about small man-made ponds that are used by migratory birds during migrations north and south. Rapanos reiterated this idea of limitation, but placed the context in terms of ecosystems. The suggestion is the federal government CAN regulate small water bodies if that water body has an affect on the larger aquatic ecosystem. From a policy

For an excellent summary and review of this issue, please see here:

Page 70 of 115 standpoint, this is an important concept. It suggests federal environmental laws are moving into a new understanding of the relationships between humans and the environment. By mentioning ecosystems as a basis for establishing federal control (because ecosystems form an important part of interstate commerce – they are essential for human wellbeing), we may be seeing elements of sustainability move front-andcenter into the judicial interpretation of the constitutional right of the federal government to manage the interstate affairs of its citizens!79 This is important if we want our environmental laws to be comprehensive in application to achieve stated goals (all waters, whether wholly in state or interstate, are important from a systems perspective). Of course the more power granted to the federal government in accomplishing comprehensive environmental policy, the less sovereignty acknowledged by individual states to manage affairs (including environmental affairs) that occur within state boundaries.

A number of principles have been identified in these last two modules that help us better understand the relationship between public and private law remedies. Private remedies may provide for direct access to judicial review, but they are often limited in the breadth of their application; if we are seeking comprehensive environmental policies, then private law remedies may be of limited potential in achieving such comprehensive goals. Public laws have a much wider scope of application (they tend to apply to an entire field of the environment, for example the air or water) but lack the ability of both access to courts and thus judicial review, as well as limited judicial discretion in reviewing statutory violations. After reviewing these major differences of public and private controls (and seeing them in the context of pollution), we may conclude neither is superior in offering a comprehensive policy approach to environmental health. Considering we are talking about an area of law that was not intended to protect environmental concerns (common law) on the one hand, and an area of law that is subject to the influences of the political process (statutory law) on the other hand, such a criticism suggesting both lack the capacity to fully protect environmental interests may be justified. We will revisit the application of public and private controls (in land use) later in the course. For now, try and consider what kind of policy approach might offer a more comprehensive solution, or whether the current system of laws in place is about “as good as it gets.” END OF SECTION.


For a more detailed discussion of the federalism question presented in the Rapanos case, particularly its policy implications on thinking about federal jurisdiction based on systems thinking, please see the following article:

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VIII. Land Use: Introduction and Private Controls
Possibly one of the most important concepts in the modern era of human civilization is the idea of private land ownership. If we consider democratic ideals as the distribution of societal rights and responsibilities across an entire population within a social institution, then we may begin to see the importance of property rights as they relate to a fundamental resource: land. Recall our presumption about the relationship between the environment, society, and economy reproduced here:

The environment sets the outer limits of our societal and economic prosperity under this presumed relationship, and for purposes of our discussion of land use over the next two modules, we can include our concept of land within the category of “environment” in the figure. Thus, conceptually, we begin to see land as a constraining factor for our societal development and economic prosperity. Because land becomes a constraining factor, we are concerned with how land is utilized. The utilization of land is further complicated by the concept of private property rights mentioned above; through the distribution of land rights to private citizens (achieving a democratic ideal) there is the potential for competing uses of that land to arise. Consider the Boomer case in the pollution section as one example. The cement factory and adjacent private landowners were both owners of private property (“real property”) who ended up having competing uses of their properties; the cement factory desired to use its property to manufacture cement, while the private landowners desired to use their property for residential purposes. The uses became competing (rival) when the full enjoyment of one use (residential use) was frustrated by the full enjoyment of the other use (manufacturing cement). When competing uses create conflict between landowners, there is a need for intervention. Some, like Coase, might argue the best form of government intervention is limited use of the court system to enforce well-defined property right; thus, the role of

Page 72 of 115 government in such cases is to ensure property rights are established between the parties, and then to offer a mechanism (courts) to resolve conflicts between the private parties. Otherwise the private parties are in the best position to negotiate the superior use of the adjacent properties between themselves.80 The alternative to a private negotiation of land use is for some kind of government intervention, where government proactively creates rules that restrict what one can do on their property and engaged in enforcement of those rules. In the next two modules we will be reviewing both private and public controls on land use. This module will focus on private controls (via common law), while the next section will focus on public controls (via statutory law).81 However, prior to getting into the private and public controls in detail, an overview of land use will be provided focusing on the relationship between the distribution of rights between private citizens in land ownership and the way in which property right characteristics can create situations that require government intervention and thus forms the basis of environmental controls of land.

Land Use Overview
The introduction immediate above indicated that the distribution of ownership rights to land is an important part of a democratic ideal. Thus, in the United States, we see that the majority of the land is held privately, meaning ownership rights are distributed to private entities (individuals, companies, trusts, etc.). With so many different ‘owners’ of land, it is entire possible that conflicts in the way land is used will occur (as the Boomer and Spur cases attest to). The question that is at the heart of environmental law regarding conflicts in land use is how to best manage these conflicts? Categorically we will be looking at the role of private controls later in this module, and then reviewing public controls in the next module. Well, the fact that the law allows for both private and public

Using the Boomer example, Coase might argue the cement manufacturer and homeowners were in the best position to negotiate an agreement between them based on the relative values at-stake. For example, the residential property owners, if they collectively valued the ‘residential’ nature of their properties more than the value created by the cement factory, might pay for the cessation of the cement operation or (for a lesser cost) pay for a technology that removes the dust from the air as part of the manufacturing process (if such technology existed). Alternatively, the cement company might make an offer to the homeowners to purchase their land outright as a way of mitigating impacts of its manufacturing process on the surrounding area (at least the humans in the area). Or the cement company and homeowners might come up with a solution similar to the one identified by the court in the case; the cement company pays the homeowners for the value of the disruption from the manufacturing operations. Once an agreement was reached (like a contract) the government institution (the court) would only be called upon to enforce the agreement if one of the parties breached their terms of the privately negotiated agreement.

We should have a clear understanding of the difference between common law and statutory law based on the previous modules dealing with pollution control.

Page 73 of 115 controls suggests there is no superior method of resolving conflict, at least amongst these two categories. However, to better understand how these conflicts arise, particularly in the environmental context, we can take a moment to think about property rights in general and how different forms of property rights can lead to environmental problems (a particular kind of conflict). Recall earlier in this course we mentioned property right characteristics in trying to understand how environmental problems arise, at least in terms of human-created environmental issues. A visual categorization of property rights was offered based on two characteristics: excludability and divisibility. The visual representation of these categories is recreated here:

We can see from the figure that private land is categorized as a private good (yellow) and thus contains the characteristics of high excludability and high divisibility. This means that private land is divisible; once a piece of land is divided and made private, it is not available simultaneously for some other use.82 This also means that private land is excludable; an entity owning private land has the right to exclude others from that land.83

An example might be the property owned for cement manufacturing purposes. Once the property is put to this use, it cannot also be placed into another use at the same time. (This is not to suggest multiuse developments do not exist, they do. Rather, this is meant to highlight land is not like gravity, where my use of gravity does not reduce your ability to use gravity; this is the kind of ‘divisibility’ being explained here.

In American property law, the right to exclude others is seen as one of the most fundamental rights of real property that exists. If we think about it, the right to exclude others at your discretion is probably one of the most important reasons private property is valued; it is a primary reason people pay the money they do to own real estate.

Page 74 of 115 These characteristics are important because they help us understand the property rights at-stake in the regulation of land.84 Now that we have an understanding of how private land is categorized as a property right, we can think about the need for regulation through conflicts in land use. Consider that conflict in land use itself is directly related to the diffuse nature of land ownership; lots of different people with different interests hold title to land and want to use that land for different purposes. Land use regulation would be so much easier if all land was owned by a single entity like the government; the government could choose the best overall uses of land, divide the land into these different uses, and through this process automatically manage the expectations of the rest of us as we ‘use’ the land (through renting, leasing, or some other method of acceptable use). In many ways, the public controls that are used on land like fundamental zoning regulations are a means by which this large scale planning occurs; government divides inconsistent uses of land into zones (say separating manufacturing and industrial uses from residential uses). Private entities then purchase land subject to those generalized restrictions, limiting how that land can be used.85 While public controls do work in some ways as a planning instrument, they are far from comprehensive. In addition, there are significant limitations on government’s ability to comprehensively control private land use. The source of that limitation is the Fifth Amendment of the United States Constitution, which in relevant part prohibits the government from taking private property without meeting two requirements: (1) the

In addition, we might see how these property rights interact with other property characteristics to create environmental problems. For example, in Boomer the basis of the nuisance claim was the interference with the use and enjoyment of private property, not the actual invasion (trespass for example) of some other person’s private property right. Indeed, the medium for the invasion was the air in Boomer; the air brought the cement dust over to the residential properties from the cement factory. And why did the cement factory not care about ‘dirtying’ the air? Consider that no one owned the air and thus the private rights (and benefits) that go along with ownership do not accrue to anyone. Thus, the air (as a common pool resource based on our categorization figure above – the blue rectangle) allows for one to externalize costs they would otherwise bear by moving the dust away from the factory (private property) using the air (common property) as a transport mechanism.

In ideal situations, this kind of public zoning can prevent situations like Boomer from occurring, where the close proximity between inconsistent uses (industrial and residential) allowed for the nuisance to develop. By moving inconsistent uses further apart, the objectives of creating some consistency in uses (at least within zones) helps to ensure an efficient utilization of land. (Of course, Coase might argue government ‘planning’ like this likely does not lead to the most efficient distribution of land uses; the open market is a better means of determining superior distribution of uses between properties over time.)

Page 75 of 115 taking must be for a public purpose; and (2) the government must pay just compensation (generally fair market value of the property at the time of the taking).86 The Fifth Amendment prohibition applies not only to physical occupations (where the government intends to physically occupy a property), but also to regulations (prohibitions on certain activities like development of undeveloped private land) that have the legal effect of ‘taking’ private property.87 We will discuss the limitations on public controls, including takings analysis, in greater detail in the next module. However, to help make the point about the limitations of government in public land use planning, consider the following figure:

The figure represents a spectrum where on the left side (in red) the Fifth Amendment prohibition against a taking of private property exists. On the far right (in green) the Tenth Amendment power of the state government to enact police power regulations exists. The question raised here is when a government regulation of private land goes so far as to result in a regulatory taking of the private property right? As noted in the figure, there are instances where the government action is an obvious taking (far left in red) and also instances where the government action is well supported under its police powers to regulate for the health, safety, and welfare of the citizenry (far right in green). Then there is the middle (yellow box) where the government action might either be considered a taking of private rights or as a valid expression of government police power. We look to judicial opinions and precedent (case law) in order to know exactly when the facts might


Remember our hierarchy of laws here. The government attempts to control land use through public zoning measures, which would be at the “Laws” level of the hierarchy; while the Fifth Amendment is at the “Constitution” level, meaning any public zoning measure that met the requirements of a taking under the Fifth Amendment would be deemed unconstitutional.

While specific public zoning measures are considered “Laws” in our hierarchy, the source of power to regulate land by government is found in the Tenth Amendment of the U.S. Constitution, sometimes referred to as the police power of the states.

Page 76 of 115 lean in one direction over another. Again, we will explore takings in greater detail in the next module because the focus is really on public controls of land use. So we should now be able to see that the idea of a singular owner of real property is not realistic in our democratic system. What we have then is a diversity of individual interests in the ownership of land that is regulated for general health and safety by our governments (federal and state). Even with a good degree of public regulation, there are still many instances where issues between and among private property owners must be resolved. There is a rich history of common law doctrines and principles that apply to land use that are employed by private individuals to manage conflicts and expectations between landowners. Collectively these private land use controls are the focus of the remainder of these lecture materials. As you consider the different private instruments available to regulate land, think about their role in meeting environmental policy goals generally, in a similar way as we contemplated private controls of pollution. What you may find, similar to what we discovered in the pollution section, is that private controls are helpful in managing the expectations between individuals and small groups. However, such controls may lack the kinds of comprehensive impact that we may look for when thinking about land use controls on larger scales, particularly scales that match our objectives from an environmental perspective. Still, you may find that private instruments are useful tools to fill in gaps that may exist in larger public land use controls. In some cases these private instruments can be powerful in balancing the equity principles of land use owners in order to provide outcomes that meet multiple criteria objectives (both environmental concerns and individual property rights).

Private Controls of Land
There are a number of private controls that can be applied to land. From a policy standpoint we can consider the benefits of private control mechanisms. For example, private controls are generally voluntary in nature, meaning they are agreed upon between the private parties (something Coase would deem an efficient means of determining the superior value of land). In addition, these controls are mainly private, not only in terms of the parties formulating the agreement, but also in the legal effect of the agreements. Once an agreement has been established under the principles of law, they act like contracts between the parties (or subject properties) and are enforceable as such in a court of law. Finally, these private controls are dynamic, meaning they can be drafted in ways that accommodate a variety of purposes contemplated between the parties; agreements for different kinds of access, restrictions, and uses among and between private land are all possible under the various instruments described below. Thus, such agreements offer significant potential in achieving the desires of land use between and among individuals and groups of property owners. Of course this may also be a signal of a limitation of private land use controls; while they are capable of adapting to the desires of landowners, they are equally capable of failing to provide comprehensive and uniform support for generalized environmental goals. Individual self-interest can often come into conflict with environmental goals (particularly where the ability to externalize costs onto others is available). This consequence of private land use control instruments should be considered as one thinks about the role of these tools in achieving environmental goals.

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The first private control discussed in the text is nuisance. We discussed nuisance in some detail under our exploration of pollution. Remember, a private landowner can prevent an activity that causes an unreasonable interference with the use and enjoyment of the landowner’s property. There are many types of activities that can be controlled, from actual physical invasions of smoke, dust, soot, chemicals (and maybe even water); to more subtle activities including noise, view obstruction, and sunlight obstruction. If the activity causing the disruption of a landowner’s use of land is deemed an unreasonable interference, then a Court will generally issue an injunction preventing the offending activity. Remember, however, the Boomer case, which stated the Courts generally use a balancing test, and weigh the benefit of the offending activity against the harm it causes to the landowner. So, an individual burning leaves on their property is more likely to be enjoined from the activity than a manufacturing business that causes dust or noise to invade another person’s property. Why? Because the manufacturing process is likely considered a higher value than the individual burning leaves when balanced against the harm being caused.88

Easements are another form of private control. Easements give a right to one individual (A) to the use the land of another (B). There are two types of easements: easements appurtenant and easements-in-gross. (There is a third kind of easement, a prescriptive easement, which is a special kind we will also discuss). Easements, like all of these private land use control mechanisms, are based in common law and thus come from a tradition where land control emanates mainly from the point-of-view of individual landowner interests; often the larger interests of society and environment are not the basis upon which the instruments are utilized (although they certainly have been used for environmental purposes; conservation easements – an agreement to place a land in preservation status – have been used to help maintain ecological functions and preserve natural land in many areas).

Easement Appurtenant (EA)

We have already discussed at great length the way in which ‘value’ is being expressed here, specifically the use of direct economic value as the basis for determining the cement manufacturing is a ‘superior’ use of land in comparison to residential use. (Some might also argue, contrary to a Lockean theory of land use, that allowing land to remain open space (undeveloped by humans) is a ‘superior’ use of land because of the ecological values under consideration. For example, a piece of land that is home to a number of endangered species (critical habitat) might be important from a biodiversity standpoint, and depending on how one values biodiversity, its value per unit (acre, etc.) may be higher than it would be if converted to residential units and sold on the open market.

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As stated above, an easement gives you a right to use other land in some fashion. An easement appurtenant (EA) gives one piece of land a right over another piece of land; the rights and privileges are attached to the land rather than to a person as an easementin-gross (discussed later). The general scenario is when Land A is adjacent to a public road, but Land B sits behind Land A, and has no access to a public road: Land B is considered land locked. Thus, Land B requires transit over Land A to gain access. A visual representation of this situation is here:

Land A may grant an easement right for the benefit of Land B to use a portion of Land A to access the public road (in red). As you might imagine, this makes Land B more valuable, since it now has access rights to a road. There is no legal obligation for the owner of Land A to grant the easement, and as a private land use control the easement is completely voluntary. The owner of Land B may negotiate a payment for the easement, or the owner of Land A may simply allow the easement as a gesture of goodwill. There is no requirement for the exchange of value for the easement to be effective. Moreover, once the easement is granted, it is said to run with the land. What this means is the easement becomes a part of the title to the property burdened by the land (and likely also referenced in the title of the property benefitted by the land). Thus, Land A is burdened by the easement and Land B maintains the benefit of the easement in perpetuity (forever). The idea that the land is burdened forever is not absolutely correct in all cases. In most cases the benefits and burdens on the respective properties are maintained under the easement for as long as the purpose of the easement exists. So for example, if another public road were to come into existence and by doing so negated the purpose of the easement, then this is an argument that the original easement no longer needs to exist. A representation of how the purpose of the easement may be negated is presented here:

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The new public road built to the right of both Land A and Land B removes the purpose of the easement as it relates to general access to Land B; Land B can now access its property from the new road without having to utilize Land A. However, the actual ability to extinguish an easement is not as simple as showing access is accomplished through another method (such as the new road). There may be other advantages intended and utilized in the easement burdening Land A, and those advantages might not be available for Land B by using the new road. These details are unimportant for our general understanding, but we can note that the application of the law is dynamic and subject to certain conditions that can impact the effect of the law (nothing is absolute – except maybe death and taxes…) Future owners of Land B enjoy the benefit (future owners of Land A accept the burden) of the easement on the respective properties. As you can imagine, such easements affect the value of property. A potential buyer of Land A must consider the easement that now exists on the property. That portion of the property that is burdened by the land cannot be altered in any way that would frustrate the purpose of the easement (so, if for access, the owner of Land A cannot build on the portion of the property providing the easement). Alternatively, Land B is benefitted by the easement (for access), which will increase the value of the land. Future purchasers of Land B can be assured they will have access to a public road because of the easement’s existence.

Easement-In-Gross (EIG)
An easement-in-gross (EIG) works in much the same way as an EA, but with one major difference: an EIG is personal; it gives the right of an easement to an individual (rather than a piece of land as an EA does) over the land of another. Thus, an EIG is a person to land relationship. The scenario might be Individual A seeks a right in Land B (for the

Page 80 of 115 same purpose, access, as stated above). Land B gives the right of access to Individual A, but the right is limited to the life of the individual. Unlike an EA, the benefit does not run with the land, but rather dies with the individual. So, an EIG places an important limitation on the duration of the easement. This is the main difference between an EA and an EIG.

Prescriptive Easement (PE)
A prescriptive easement refers to a right in the land of another that is gained by operation of law. This means the right is gained regardless of how the owner of the burdened land feels about the situation. So, if Individual A uses a portion of Property B, even against the will of the owner of Property B, in a similar manner and for a given amount of time, then Individual A will obtain a legal right to use that portion of Property B by operation of law. This may seem unfair to many of you. However, consider the policy behind land use in the United States. We have a general policy (think John Locke if you study political philosophy) to put land into ‘productive use’. A prescriptive easement has a couple of assumptions underlying its use. The first assumption is the land is not being used productively. This is because the owner of Property B should have been aware of the use, and if s/he did not approve of the use, they would have prevented it from occurring (through a trespass action). Because the use was allowed to occur for a long period of time (how long depends on where you live: 20 years in MA, 5 years in CA for comparison), the owner of Property B must have either acknowledged and assented to the use, or was unaware through a lack of using Property B themselves. Either way, Individual A is placing Property B in a superior use. Under a legal theory of prescriptive easement, Courts will acknowledge a superior use by providing a guaranteed right of use even if the owner of Property B is in disagreement. So, we see here how a PE favors a policy of productive use of land. What about organizations like the Nature Conservancy, which purchase land to remain undeveloped (unused) because of valuing things like biodiversity? Is this not a productive use? Does it seem right to label only extractive uses as productive? Is there value in leaving land undisturbed, and must an owner constantly monitor what is happening to this land in order to protect their ownership rights? The issues brought up under this line of questioning are important when we think about the larger policy implications of laws impacting land use. If we consider these issues in detail, we can see how the lines between terms such as superior and productive are being drawn between our economist and ecologist camps.

Besides nuisance actions and easements, another private land use control is the covenant. Covenants differ from easements in one main way: covenants are voluntary restrictions on property that are placed on the same property by the owner of that property. So, unlike an easement, we have only one person and one property involved in the covenant process. To better understand how a covenant works, think of the example of a real estate developer. This developer wishes to subdivide their single parcel of land,

Page 81 of 115 and create a number of buildable lots. The hope is to create a subdivision with twenty homes. Prior to subdividing the lot, the developer decides to place restrictions on the entire property that will limit what can be done on the property (to ultimately include each sub-divided lot). These restrictions help to ensure each homeowner of the new lots will maintain a minimum level of aesthetic taste. The restrictions may limit what can be built on the property, how many animals can be maintained, a minimum condition of the grass, restrict the use of certain colors of the homes, etc. You may know these kinds of rules to be enforced by local homeowner associations. Well, the rules are all related to original restrictions that were placed on the common property, before subdivision, by a common owner. This is what is known as a covenant. Recently, covenants have been used to restrict development on land for environmental conservation purposes. You may know such covenants by the term conservation restriction. These are voluntary covenants where the landowner places a restriction on development of the land. This ensures the land is maintained in a natural state, and many states create an additional incentive for the landowner by lowering (or eliminating) the property tax on the portion of the property that has been set aside for conservation purposes. Many family farms locally are considering conservation restrictions as a way of keeping the land in an undeveloped state while maintaining affordability by mitigating burdensome property taxes due to real estate appreciation and thus higher tax burdens on larger parcels of land.89

Private land use control is an important part of our jurisprudence. As mentioned, there are many advocates for a private market control of land use agreements. Coase has advocated for such private agreements to control the marketplace of ideas. In the Boomer example, for instance, if the value of the environment was higher than the value of the business, then the residents may be willing to pay the company to end the pollution. In this way, the true value of the environment (air) in that area would be realized (it would be the price the people were willing to pay to prevent the continued pollution of the air – maybe the cost of buying the business). Through the nuisance action, we know the court took a bit of a different approach: having the company pay the residents for the diminished quality of the air (and noise). However, because the court set

The text also discusses unconstitutional covenants in a number of cases. These are examples where restrictions are placed on land that are in violation of constitutional protections, for example limiting ownership based on race, religion, or ethnicity. With the passage of the 14th Amendment (constitutional provision), and the Civil Rights act of 1866/1963 (federal law), such restrictions have been declared unconstitutional (when a government entity allows such a restriction) and/or illegal under federal law (when a private entity creates such a restriction). However, it does raise an environmental justice issue. If you place upland habitat into conservation restrictions, you limit housing access in many areas. This leaves the poorest to build in floodplains (low value land), which places them at unnecessary risk. So, we see a difficulty when environmental laws result in displacement of the poorest amongst us.

Page 82 of 115 the value (told the company what to pay) it can be argued the true market value of the environment was not achieved by using the public court system to set the value of the property rights at-stake. If we follow the private right argument in the Boomer case, then we are left seeing the interests are directly related to the land ownership rights and not to the protection of the environment (in this case the air, which is the medium being polluted). One plausible reason for this is because neither the cement factory nor the homeowners owned the air and thus they have little vested interest in maintaining the quality of the air. As a common pool resource, the air (environment) is something that may not be negotiated for between the parties in the Boomer case – as Coase might hope for. Rather, both parties will likely discount the pollution of the air in such negotiations. This, again, may be the reason why government often intervenes in controlling individual actions that, in the aggregate, can degrade environmental quality. With this said, we now turn our attention to public land use controls in order to see how comprehensive forms of zoning might help better achieve environmental goals that otherwise might not be considered in market transactions. END OF SECTION.

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IX: Land Use: Public Controls
In the immediately preceding module we discussed private controls of land use, distinguishing them from public controls by noting the voluntary nature in which those agreements occur between private parties. The focus of such agreements tends to be on utilizing land: putting the land to some human-based use.90 The presumptions that go into this kind of belief about land use were mentioned (John Locke). However, other private controls such a conservation easements were identified as private land use control tools that aid in protecting land as open space; often environmental organizations use this tool as a means of preserving land. Thus, private controls are shown as tools that can be utilized to accomplish a variety of land use goals, both development and protection. Private land use controls, like private pollution controls, are limited in their scope and thus do not provide a comprehensive means of achieving large-scale land use policies. As noted in the previous module, the variety of interests in land ownership (from one landowner to another) creates some need for overarching management, and this need is usually filled through government intervention. Public controls of land are the legal means by which government intervenes. The purpose of this section is to overview the kinds of public control mechanisms utilized by government and discuss some of the issues that arise when government uses those controls. Remember government is limited in controlling land in our democratic system because the majority of that land is privately owned; if government were able to fully control private land in any way it desired, then that land would likely loose its characteristic as private land resulting in a diminished demand (and value) of that land. As we review these government powers and limitations, think about the role of public controls in achieving environmental goals. We will see that emerging environmental issues (such as climate change and sea level rise) create difficulties for government because the capacity to control landowner expectations is limited due to the nature of the private-public relationship in land ownership. Thus, alternative policy directions are likely needed to achieve certain environmental goals, particularly forward-looking goals that attempt to deal with environmental hazards (like climate change) before they are fully realized.

Public Controls of Land The Zoning Power
To begin, we can identify the source of power inherent in government to control private land use. The source of that power is the Tenth Amendment of the United States

The example of an easement from the previous lecture discussed the need for access to a landlocked piece of property, thus the easement allowed for access to the property so it could be ‘improved’ through direct human interaction.

Page 84 of 115 Constitution, which reserves all powers not specifically given to the federal government to the states.91 These ‘reserved’ powers (often referred to as the police powers of the state) include the power to protect the health, safety, and welfare of the citizenry. The mechanism for engaging in this protection by the state government regarding land use planning is through zoning powers. Basic zoning of land was mentioned in the previous lecture, for example separating conflicting uses of land such as industrial and residential to avoid a Boomer-like situation where the process of manufacturing cement interferes with residential use of land in close proximity to manufacturing. By separating the uses of land into categories, zoning provides a means by which individual private preferences for land use can be made in an orderly fashion. A visual representation of zoning is shown here:

We can conceptually think of zoning as an overlay on top of private land use controls. So, for example, when one is considering the private uses of land, including potential controls on private land, there is a background condition of zoning that must be considered. If one has a private residence built on a property but wants to add a retail store on the same property, then before they engage in any process of developing the

Note the Tenth Amendment reserves the power to regulate land to the state government. This means that public land use controls, like zoning, are primarily a state government function, and most states delegate this function to the local municipalities. The result is that most zoning and control of land use occurs at the local level, although the amount of power capable of being wielded at the local level is limited by our hierarchy of laws; a local zoning ordinance cannot violate state statutes regarding land use regulation. Further no local ordinance or state law can violate constitutional protections of private interests in land.

Page 85 of 115 retail store the background zoning laws must be reviewed to determine if the retail store is an acceptable use of the land where the store is contemplated. If the retail store is not allowed by zoning, then its existence would create a nonconforming use of the land; a use of the land that is not in conformance with the background zoning laws. As you might imagine some nonconforming uses are more nonconforming than others. For example, a desire to build a cement manufacturing facility on residentially zoned land is a more of a nonconformance than a desire to create a small retail office for counseling in a residential neighborhood; the cement manufacturing facility well beyond the character of the kinds of land use contemplated in a residentially zoned area, while a counseling office is closer to the kinds of characteristics contemplated in a residential zone (people meeting at homes to talk).92 Nonconforming uses that are similar to the zoned use of the land are more likely to be allowed where nonconforming uses that are wholly dissimilar to the zoned use will likely be denied. The Euclid case in the text identifies the basis (capacity) for government to engage in zoning, and we understand this basis is broad, defined by Tenth Amendment powers, but it is not absolute. In general, there must be a connection between the zoning power and its relationship to public welfare, particularly in the context of public nuisance. What this means (without getting into too much detail on the semantics of land use law) is that government has the power to regulate public land, but that power is really defined through its protection of the public from dangers that are common to the public. When government begins to regulate in ways that are not meaningfully connected to preventing a public harm, then the power of government to regulate private land rights diminishes. Sometimes that power can diminish to such an extent that the government attempt to regulate land goes too far and results in a taking of private property rights. This brings us to the takings doctrine and its influence on public land use controls.

The Takings Limitation on Public Land Use Control
Recall in the previous lecture our summary discussion of government attempts to regulate land, and particularly how certain regulations can go too far and violate the Fifth Amendment to the United States Constitution by ‘taking’ private property rights without identifying a public purpose and paying just compensation. To help understand this concept in relation to the government’s legitimate exercise of its police powers under the Tenth Amendment, the following figure was offered to present a spectrum of government actions that flow from legitimate 10th Amendment police powers to illegitimate 5th Amendment takings:


Remember, zoning is based in the Tenth Amendment’s reserved powers to the states, and this is really about managing land use for the protection of the public welfare. Thus, the character of land use becomes important because it helps to place the use into a context where it is balanced against the purpose of zoning.

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This balance between the 10th and 5th Amendments, from a policy standpoint, represents the limited capacity of government to control private land use.93 Before getting into some of the details of when a government action might constitute a taking of private interests, we can consider the implications of limited public controls on land use as a means of achieving environmental goals. At a minimum, we can acknowledge that government likely cannot do anything it wishes when attempting to manage private land use. This means one cannot rely solely on government regulations of land as a means of advancing environmental policy; some policies will likely be supported by public controls while others will not. The question any policy planner would want to know is what kinds of regulations are allowable to further environmental interests, and what kinds are not; essentially, where is one safely within the green area of the spectrum and where is one wholly within the red area of the spectrum (in the figure above) when using public control mechanisms? U.S. Supreme Court case law has helped to advance our understanding of when government is acting safely in its 10th Amendment capacity, and alternatively, when government is violating 5th Amendment protections. A review of these major cases is an important way of knowing what kinds of government actions are allowable. However, it is critical that we also understand the cases have not resolved every kind of government action; there are numerous government actions that fit within the yellow box area in the figure above, meaning there is no clear indication of whether those kinds of actions would be considered valid or invalid exercises of government power. With this


Recall that if government were the sole owner of property, then its capacity to control land use would be (almost) unlimited. However, under our democratic ideal of distributing rights and benefits to private individuals (including the rights and benefits of private land ownership) the capacity of government to control land use is limited.

Page 87 of 115 understanding we can summarize major cases to better understand public government control of private land in context. The cases noted in the text provide examples of government action that might be considered a taking of private property and thus trigger Fifth Amendment constitutional protections. It is important to remember these cases deal with government regulations of land where the government does not intend to actually ‘take’ the property (as it would in an eminent domain proceeding). Thus, the cases are examples of state government attempting to use its 10th Amendment powers to regulate, but those regulations are being challenged as a 5th Amendment violation of private property rights.94 A summary of these cases are listed in the following table: Loretto Lucas A government regulation resulting in a permanent physical occupation of private property is a categorical taking and the requirements of the Fifth Amendment must be met.95 A government regulation that deprives a private property owner of all viable economic use of their property is a categorical taking and the requirements of the Fifth Amendment must be met.96 A government regulation that results in a temporary deprivation of private property rights, even where that deprivation removes all viable economic use of the property, is not a taking.97

Tahoe Sierra

There are other cases that help us understand precisely what constitutes a regulatory taking of private property. However, these three cases are sufficient to understand the general relationship between a government regulation and its impact on private property rights. If we were to place these cases along the spectrum of government actions figure above, the resulting figure would look something like the following:

When government is acting under its eminent domain power, it is acting under the Fifth Amendment to the United States Constitution (as opposed to the Tenth Amendment police powers). As such, the only questions to consider are: (1) whether the eminent domain taking is for a public use; and (2) whether just compensation has been paid?

A government regulation allowing third party cable boxes to be affixed to private residences is a government sanctioned permanent physical occupation of one’s property requiring Fifth Amendment protections.

Note: the deprivation must be based on a property right that is part of the title to the property. A private owner cannot claim a deprivation of a property right they do not have.

A 32-month moratorium on development along Lake Tahoe is not a taking because the prohibition is temporary in nature.

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Lucas is placed in the center because the question of whether a taking has occurred in that case depends on the degree of government action and the background principles of property law in the state in which the regulation occurs. Where the regulation removes all viable economic use of an existing property right under Lucas, then there is a taking. Otherwise, there is no taking where the regulation simply reinforces a background principle of property law (such as protecting against an established public nuisance) even where the result of the regulation is, effectively, to remove all viable economic use of the property.98

Policy Implications for Environmental Regulation
With some understanding of takings jurisprudence, we can go back to considering the policy implications of public controls on land use. Consider the facts of the Lucas case as an example. The regulation at the heart of the Lucas challenge is a prohibition that was enacted by the South Carolina Coastal Commission in response to a hurricane that

An example may be the protection of wetlands by preventing the development of building in wetland areas. Many states do not allow development to occur within wetlands and this prohibition is based on background principles of property law in those states (protecting against a public nuisance). Thus, a person who purchases a piece of property consisting entirely of wetlands cannot claim a regulatory taking of their property under Lucas principles when they are denied the ability to develop the property. The reason is the purchaser never obtained the right to develop when they purchased the property consisting wholly of wetlands; the right to develop was not one of the property rights that ‘ran’ with the title upon purchase. Thus, the purchaser cannot claim a deprivation of a right they never had. (Hopefully the price paid for the land included a substantial discount reflecting its inability to be developed.) For a detailed explanation of background principles of property law, please see the following: (pgs. 157-160).

Page 89 of 115 substantially damaged mainland and barrier islands around the state. The regulation prohibited future development on barrier islands to help maintain the islands as development intensifies the erosion of the islands. Maintaining the islands helps to protect the mainland from the forces of hurricanes and coastal storms, and reducing population densities on those islands helps to protect human safety and welfare. Thus, from an ecological standpoint, it may be argued the regulation is helping to preserve the protective services provided by the barrier islands (storm surge protection) while also protecting fundamental police power concerns (safety and wellbeing of the state’s citizens). The suggestion after Lucas is that a state may indeed choose to protect sensitive coastal habitats, but if that protection results in the deprivation of all viable economic use and is further not supported by background principles of property law, then the state must pay just compensation for the regulation through its eminent domain powers. Consider the effect of such a holding when we think about the role of public controls of land in achieving environmental goals. For example, sea level rise is an ongoing concern and all of the scientific evidence suggests we will be dealing with the issues of sea level rise for decades to come. What are the options for government in acting proactively to adapt policies to sea level rise? For example, must government pay for all coastal land it chooses to protect against sea level rise by banning future development in those areas? And if so, will such costs make such regulations infeasible thereby allowing coastal development to continue to the detriment of its citizenry? If so, this would mean government is relegated to a reactionary, environmental disaster response mode, meaning its role would be to respond to natural disasters and flooding similar to what was observed during Hurricane Sandy in 2012 along the East Coast of the United States. The questions posed above speak directly to the capacity of government to control land uses in a way that achieves environmental goals. What we learn from regulatory takings analysis is that government’s capacity is limited; it can purchase property rights through eminent domain procedures (thus transmuting the property from private to public control – not an ideal solution on a number of counts), or it can wait to be reactive in its response to environmental disasters. Government also has options outside of its regulatory stance, including taking actions as both a property owner and as trustee of public rights, particularly along coastal areas.99 However, these options are limited when we think of land use policy from a programmatic stance.

Public controls of land use are fundamentally 10th Amendment applications of power; the government has the power to regulate for the health, safety, and welfare of its citizenry. However, this power is not unlimited. In particular, the 5th Amendment

For a detailed examination of government options in proactively dealing with sea level rise through managing coastal property development (including a detailed examination of regulatory takings claims) please see the following article:

Page 90 of 115 prohibits the taking of private property by the government without a public purpose and the payment of just compensation. Existing between the lines of constitutional public control and unconstitutional takings is a dynamic interaction of private landowner protections and the protection of the public from harm. Understanding the context in which these public controls exist helps inform our understanding of both the law of land use and the limits of policy approaches concerning land. The public controls identified in this module are limited for the reasons noted above. The private controls identified in the previous module also have limitations. However, if we think about both sets of controls (public and private) collectively, we may begin to see a framework for developing a more comprehensive approach to land use policy, particularly when it comes to thinking about environmental issues within the context of land use planning. END OF SECTION.

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X. Waste
The concept of waste is really dependent on perspective. For example, from a system standpoint, there is really no waste in a thermodynamic sense of the term; energy is neither created nor destroyed, it simply changes form. Recall our previous discussion about our natural system and the concept of equilibrium. A visual representation of a system is copied here for recollection purposes:

If we think about Planet Earth as a natural system that is ‘closed,’ then our definition of waste is, practically speaking, really about moving things from one part of the system to another (transmuting energy from one form to another).100 However, we do know there can be consequences to shifting around energy in different forms. Recall our discussion about moving carbon from storage in the ground to the atmosphere, thereby increasing the concentration of atmospheric carbon. This process does not create new carbon, but even so it has potentially significant impacts on our wellbeing (climate change). This is particularly true if the addition of carbon into the atmosphere results in a shift in the equilibrium state of the Earth system. The visual representation of such a shift noted

For example, the creation of plastic includes taking chemicals (combinations of elements) that already exist in the Earth system and combining those chemicals in a way that creates a particular combination resulting in a product – plastic. Thus, the plastic is not something that adds to the Earth system, but rather it is a transmutation of existing chemicals into a combined form that results in something new (the plastic). Waste products can be said to be combinations of existing things that are no longer desired for human use.

Page 92 of 115 previously is copied here for recollection purposes:

From an environmental policy standpoint, we are systematically concerned with actions/events that can result in a shift in the equilibrium of our natural system, particularly when that shift can result in harm to human wellbeing. So maybe when we think about waste, we are not thinking about adding new materials to the system, but rather altering the background energy flows of the system in a way that potentially harms our wellbeing.101 So if we think of waste patterns as the focus of our discussion, we can begin to explore how those patterns might have an impact on human wellbeing through disruptions to background conditions of our Earth system. In order to do this we can bring forward our concept of systems thinking and the use of box models as a way of identifying waste problems. A visual representation of a box model is copied here:


We can certainly include in our discussion here waste patterns that result in ecological harm as this harm can certainly impact human wellbeing when we connect our wellbeing to the background environmental conditions that allowed for human development and prosperity.

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Understanding waste patterns, including the effects of waste, is really about understanding the flows (inputs, outflows, feedbacks) and interactions within a system component. The box model provides a way of modeling these flows in order to understanding the causes and effects of certain waste patterns. For example, waste we identify as hazardous (because of its characteristics) can have a potentially significant impact on human wellbeing; certain hazardous wastes allowed to seep into groundwater has been the source of contamination of drinking water leading to the development of cancer in human beings. Often the impacts of certain waste patterns (like hazardous wastes) can be understood by utilizing a box model approach (thinking systematically). The events usually go something like this: • • There is a background condition of the system component (the groundwater is usually free of toxic chemicals and safe for human consumption). An input into the system component alters the system component (a hazardous waste is added to the groundwater, mixing with it and causing a chemical change in the groundwater). The output is groundwater that is no longer safe for human consumption. The feedback loop is a higher incidence of cancer rates among humans who consume the contaminated groundwater.

• •

By utilizing a systems approach, the problem (contaminated groundwater) can be sourced back to the initial input, the hazardous waste. Once identified, the source of the problem needs to be controlled; the basis for the control is the impact the waste is having on the environment, particularly the connection (nexus) between the waste and human health dangers. Through this example we can see how waste (particularly certain wastes) requires regulation (monitoring and special handling). Even non-hazardous waste can require

Page 94 of 115 special attention because the problems that can arise from the aggregation of the waste over time. Indeed, it is because of the impact of waste flows, both hazardous and nonhazardous, that public intervention through regulation is required. In a world where the costs of waste production, handling, and disposition were completely internalized by each individual, there may be less of a need for government intervention (public statutory controls). However, we have yet to create such incentives and internalization of the costs of waste generation and disposal. Thus, private controls (like nuisance and negligence) are an incomplete method of waste regulation; this is particularly true where toxic tort actions (for example suing for exposure to contaminated water) are wholly reactive in nature, allowing the harm to occur before the law offers a remedy. For these reasons, much of waste regulation falls to public control mechanisms, and our focus is on understanding the statutory mechanisms involved in controlling waste patterns.

Waste and Resource Recovery Overview
Waste is something we Americans have become very good at doing. After World War II, we developed certain habits regarding waste, mostly due to technological innovations. One prime example is the development of plastic. Since its inception, plastic has become the preferred method of carrying, concealing, holding, and storing our expanding material collections. Most of the time, it is created in a form that is readily disposable; think of plastic bags at the supermarket. Plastics have become an issue onto itself recently as certain areas of the U.S. and abroad have begun experimenting with the regulation of plastic bags through prohibiting their use.102 All of this plastic, and our inheritance of a throwaway society, has led to an everincreasing amount of waste generation. Early in our career as a throwaway society, the answer was simple: build more dumps. However, as land has become scarce (and expensive), building more dumps has become less attractive. Also, we have had to deal with the environmental consequences of waste generation. The purpose of this module is to look at the laws used to deal with waste, and more recently, resource recovery.

The Scope of the Waste Problem
As noted in the text, waste is a significant issue, which is increasing over time. There are a few tables at the beginning of the chapter that show a significant increase in the amount of waste generation since 1960. However, you can see that increased recycling over recent times has lowered the net impact of waste generation. From a big picture, we can think of waste generation in the following diagram:


There are also economic and psychological factors that influence and reinforce a consumptive society. For a good summary of these factors (while discounting any bias in its presentation) please see the following video:

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Mathematically, the net amount of waste can be seen in the following equation

Wn = Wi - Wr
Where Wn = Net Waste (the dependent variable) Wi = Waste Input (independent variable) Wr = Recycling (independent variable) In English, this should tell us that we can control the total amount of waste (Wn) by altering how much waste we generate (Wi), and how much recycling effort we engage in (Wr). There are many ways to accomplish this goal, and we can see from the table that increases in recycling efforts does indeed lower the amount of net waste in society.

Not All Waste Is Equal
Waste comes in many forms, which makes the issue more than one of just quantity. As stated in the text, most waste is categorized legally as solid waste. A sub-category of solid waste is hazardous waste, which is generally defined as the kind of waste that has the potential to severely harm human beings or the environment. An acronym that is sometimes used to define what is hazardous waste contains the following properties: corrosive, reactive, ignitable, toxic (CRIT). A clear example is radioactive waste, generally the result of uranium or plutonium enrichment for energy generation (nuclear power plants) and weaponry development. No one would seriously argue the hazardous nature of radioactive material. Also, many household goods (especially cleaning agents) exhibit the CRIT properties, and are therefore classified legally as hazardous substances. Conceptually we may understand how waste is divided between hazardous and

Page 96 of 115 nonhazardous materials based on a relationship between probability and magnitude of harm. This can be visually represented in the following figure:

Hazardous waste has a high probability and magnitude of harm, whereas nonhazardous waste has a low probability and magnitude of harm.103 Aside from the obvious humanhealth issues associated with hazardous waste, non-hazardous solid waste makes up the bulk of the waste problem today. It is the sheer mass of waste, with the attendant problems of collection, storage, transportation, and disposal that is the main focus of the public controls on waste.

Legal Mechanisms for Controlling Waste
Historically, waste issues were dealt with locally under the 10th Amendment police power of zoning and ordinances. Private disputes regarding waste retention were generally dealt with under the common law nuisance doctrine. Beginning in the 1960s, the federal government began to centralize (take over) waste control from the state governments. Remember, the federal government has authority to regulate matters that affect interstate commerce under its Commerce Clause power granted by the U.S. Constitution. Waste is transported over state lines, and even where it is a wholly intrastate activity, it has an effect on interstate commerce.


Of course, nonhazardous waste can still create significant harm, depending on how ‘harm’ is being defined. One way of thinking about this is to consider the aggregation of nonhazardous waste and the conditions this can create for both human and nonhuman aspects of the environment.

Page 97 of 115 Two major federal laws have been enacted to deal with waste: the Resource Conservation and Recovery Act (RCRA); and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

RCRA is the major federal waste management statute. RCRA controls both hazardous and non-hazardous wastes. For non-hazardous wastes, RCRA creates a federal incentive plan that provides federal funds for states and regions that adopt federal waste management guidelines. The major enhancement in the federal RCRA law is the lining of dumps to ensure the waste material does not escape into the soil as it decomposes. Such escape has been shown to contaminate groundwater, which can be a major threat in rural areas where wells provide the main source of water consumption. The lining is a hard plastic material that resists tears and bio-degradation; it works by trapping the waste material (most importantly seepage) in the lining body. Much of this material can be converted to energy, such as utilizing the gases that are created from the decomposition process to create electricity.104 This is one example where technology is working to make waste disposal a more efficient process while also taking advantage of the energy flows in the waste itself to generate another form of energy - electricity. RCRA also manages hazardous wastes. It does so by providing a manifest system that monitors the waste from cradle-to-grave. The purpose is to closely monitor the creation, transportation, and ultimate storage of hazardous material. Through such monitoring, the law aims to limit the amount of hazardous waste that may escape into the environment. Under this accounting system, a creator of waste (let’s say a chemical manufacturing plant that has toxic chemicals as a waste product) must account for every ounce of hazardous material created; if they store the material on-site (unusual), then they will complete a federal form that shows exactly where the material is being stored, in what manner it is being stored, and the exact amount of material being stored. In the end, the amount generated must equal the amount stored on any given day. If the material is being stored off-site, then the ledger is signed by the chemical plant, and counter-signed by the transportation company. At the destination, the transportation company signs off on delivery, and the holding facility signs a receipt. At each point, every entity is confirming the amount being handed-off and/or received. Through such a process, the cradle-tograve accounting of the hazardous waste has been conducted. Federal authorities engage in surprise inspections and testing of storage facilities to ensure the quantities of the hazardous substance actually stored mirror the amount stated on the manifest document. If they do not, both civil and criminal penalties can apply. One point mentioned in the text (and worth repeating here) is the environmental justice issue attached to areas that house hazardous waste storage facilities. Imagine living in a community that stores hazardous waste; what do you think the presence of this facility might do to property values? The general term given to such areas is LULUs (Locally

As an example:

Page 98 of 115 Undesirable Land Uses). If we look historically, most of these facilities are located in socioeconomically depressed cities and towns. Thus, the poorest people are generally those who live in direct danger of hazardous waste storage facilities. Is this fair? We all benefit from the industrial advantages of the processes that generate hazardous waste, but we do not equally share in the costs. Under such a benefit/cost analysis, does it seem right that the poorest of our country take on the most direct burden for our prosperity? This is but one of the logical policy questions that derive from our generation and ‘disposal’ of waste products. Again, whether we find ourselves on the economist or ecologist side of the scale helps to inform our understanding (and likely answers) to these questions.

What happens when RCRA fails to account for hazardous waste, and a piece of land becomes contaminated? This is where CERCLA comes in. CERCLA’s purpose is to identify and clean up contaminated sites. You may be aware of the Superfund sites (Superfund refers to the financial program set up under CERCLA) around New Bedford. The harbor is a famous (or infamous depending on semantics) Superfund site.105 Superfund sites are lands that were operated during the earlier parts of our industrialization process. Since environmental laws were not prevalent, many of the sites became contaminated with hazardous materials. The contamination is of a kind where it poses a persistent and substantial hazard to the health and wellbeing of humans and the environment surrounding the site itself. Thus, the focus is to remediate the site based on the past actions that are not longer allowed under federal law (i.e., disposing of hazardous materials through dumping, burial, and similar means). In order to expedite cleanup, Congress provided initial funding (Superfund) of the CERCLA program, but the statute also allows for legal actions against responsible parties. So, if Company X owned a property that is deemed contaminated, CERCLA allows the federal government (working with the state) to seize the property and begin cleanup procedures. It also authorizes the government to file a federal lawsuit against the owners of the property to seek reimbursement for the costs of cleanup (as well as other damages outlined in the law).

Failures of Legal Mechanisms
The federal public laws regarding waste are largely disposal statutes; they do not directly address conservation and recovery of waste (remember our equation above on reducing total waste), which is left primarily to the states and local governments. In other words, the laws that deal with waste derive from a policy presumption of waste generation. However, there are other ways of dealing with waste patterns that do not presume the generation of waste, at least in terms of thinking about altering the net waste that results from human activity. Policy directions that focus on conservation are one way of accomplishing this goal.


Page 99 of 115 An example of encouraging conservation and recycling is the adoption by the Town of Dartmouth to impose a per bag garbage fee on garbage disposal in the Town. Admittedly, the reason behind the bag-fee program was not environmental (rather a money saving measure). Still, the effect has been to significantly reduce the amount of total waste received by the Town. How has this been possible? By charging a fee, residents have been given an incentive to reduce direct wastes because they are internalizing the costs of the waste generation by paying per unit of waste. Residents have thus reduced their waste inputs mainly through increased recycling efforts. Thus, the Wr in our equation has increased substantially. Because it has an inverse relationship with Wn, the more recycling you do, the less net waste you create. A good example of how small economic incentives (approximately $1/bag) can have an immense change on individual behavior, resulting in a reduced waste flow. In addition to conservation effort through recycling, policies can also focus on the initial generation of waste. For example, altering the design patterns in product manufacturing and packaging can limit the amount of waste that is inputted into the system, thereby reducing the overall concentration of potential waste product that is subject to recycling (and other similar efforts to mitigate net waste outflows).

Waste generation is an ongoing concern. Our regulations have done a pretty good job overall in controlling the amount of hazardous waste that exists in our environment; manifest systems like those found in RCRA do a good job of identifying the generation and ultimate storage (‘cradle-to-grave’) of hazardous waste. Nonhazardous waste generation is increasing over time, although efforts to internalize the costs of waste through discrete payment systems, recycling regulations, and product manufacturing standards are beginning to have an impact on the overall picture of waste management. Understanding the basic mechanisms that control waste (focusing on a systems approach to the problem) can help to better identify the cases and potential policy solutions. With federal public laws like CERCLA ensuring we clean up our legacy issues of waste from the past, and current regulations like RCRA to control the impacts of waste generation, we have the potential to look beyond the way in which we control waste today to a future where we alter our waste patterns so as to move towards the most efficient utilization of resources in respect to our larger environmental goals. END OF SECTION.

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XI. Energy
The Laws of Thermodynamics tell us that energy can neither be created nor destroyed, but rather what we know as energy is really a constant conversion of energy from one form to another. So we really are not speaking about ‘creating’ energy here but rather about releasing energy from one source and getting that release to give us energy from another source. For example, most traditional electricity generation is accomplished through the movement of turbines that create electrical charges as a byproduct of their movement. Making the turbines move requires energy and large power plants need to find ways to get those turbines to move. Hydrocarbons (coal, natural gas, oil) are traditional ‘sources’ of fuel to move the turbines; we burn the hydrocarbon as an input to create heat as an output. This heat output is then used as a secondary input to warm water and create steam, a secondary output. The steam then becomes the tertiary input by which the electric turbines are moved creating electricity as the tertiary output. Hydroelectric dams do this same thing but instead of creating steam as is done in the burning of hydrocarbons, the flow of the water (the input) moves the turbines directly (the output). We are essentially taking existing energy from one source and using some of that energy to create electricity through a series of energy transfers.106 In the burning of hydrocarbons, there are a number of energy transfers that must occur whereas there are less energy transfers in the use of dams or other methods such as wind or solar power. An example of the idea of energy conversion, transfer, and release is provided in the following figure:


Each stage of an energy transfer process tends to loose some energy along the way. For example, as noted above, burning hydrocarbons (like coal) to create electricity is a 3step process. During this process energy is lost at each stage; not all of the energy contained in the coal is converted (passed) to the boiling of water to create steam, and not all of the steam energy is converted to the moving of turbines. Thus, the most efficient forms of electricity generation are those where there are fewer steps (all things being equal) because there is less opportunity to loose energy. Thus, hydroelectricity generation may be more efficient than hydrocarbon electricity production from an energy transfer perspective.

Page 101 of 115 Understanding that energy is neither created nor destroyed, we might not be too concerned with the idea of energy loss through a multistep process of converting energy from one form to another; we just know that it takes more energy in a multistep process to convert the same amount of net energy. For example, it will take more energy stored in coal to produce the same amount of electricity as hydroelectric power because there are more steps in the process and thus more energy is lost during those steps. But we may begin to be concerned when there are other costs involved in the creation of energy by using different sources of energy production. For example, if you need to burn a lot of coal to produce electricity (because there is wasted energy in the process), then one likely needs to look at the burning of coal and determine if they are other costs incurred beyond the loss of energy at each stage in the process. If so, we likely need to pay close attention to those additional costs and particularly the impact they might have on our background environmental conditions because, under our premise of the importance of background conditions for human wellbeing, maintaining the current equilibrium state of the environment is a primary goal in achieving environmental objectives. The issue of other costs may also be referred to as externalities. The use of hydrocarbons results in the release of carbon from a stored state (we get the carbon from coal, gas, and oil stored in the ground) to a ‘released’ state as the carbon moves into the atmosphere and other components of the natural system after it is burned. Most of the released carbon gets added to atmospheric concentrations. The increased concentration of carbon in the atmosphere results in a greenhouse effect, trapping heat energy from the Sun on the Earth. The end result is a pattern of warming that can have negative impacts on our overall wellbeing. This is a good example of a situation where the creation of electricity (and gasoline from oil for combustion engines) is having unintended consequences (a feedback loop) that include climate change. A way of visualizing this systematically is to consider the following box model application to the use of coal as a source of electricity production:

Page 102 of 115 Beyond issues related to climate change, the use of hydrocarbons has other costs. For example, coal often contains sulfur that is burned with the coal during the first phase of energy transition. The sulfur is released into the air and can combine with other elements to create chemicals that are harmful to humans and other living things. In addition, the particulates that are burned with the use of coal can cause respiratory illness and other air quality issues for those within the surrounding communities to these power generation plants.107 Finally, the production process of extracting coal for use in energy generation can have consequences on the local landscapes and ecosystems. Collectively these costs can be substantial and are part of the reason why energy policy might move in directions that attempt to mitigate these costs, for example by utilizing alternative sources of energy production (conversion). As we explore the materials on energy, consider that we are not necessarily considering energy from the production standpoint (literally the conversion of energy from a ‘stored’ form to a different more usable form, like electricity). Rather we are attempting to understand the associated costs of energy production between different sources (inputs) so that we can better understand the feedback loops between energy choices as exampled in the figure above. Our goal is consider the different inflows (inputs) for energy production (hydrocarbons, wind, solar, geothermal, nuclear, hydro, tidal, etc.) and think about the interactions between the inflow and the system component. This will lead to consideration of the outflows and feedbacks. It may be that through this process certain sources of energy production are shown to be superior based on the criteria chosen to evaluate this measure. At least this will provide us with a conceptual framework for understanding our overall energy policy in the United States and how environmental laws might impact those policy directions.

Overview of Energy
We live in a technologically advanced (and advancing) age that is driven by energy flows. As such, the ability to power our civilization is a key component to our social and economic wellbeing. But remember our presumption regarding the role of the environment in constraining our social and economic capacity, visually recreated here:


It is due to such practices that the Clean Air Act (discussed under pollution controls) manages stationary sources of pollution, like power plants, utilizing best available technology methods to include ‘scrubbers’ that attempt to filter out the worst of the soot and residue that emerges from burning coal before it is released in smoke stacks from the energy generation facility.

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In order for our economy and social institutions to thrive in a technologically advanced civilization we need to consider the impacts of our energy choices on our environment; at least this is the premise by which some would define our goals towards a sustainable energy policy. Many suggest this policy needs to focus more on renewable sources of energy production that have little to no secondary impacts on environmental (and implicitly human) wellbeing.

The U.S. Energy Policy
The U.S. is the major consumer of energy, particularly per capita (energy used per individual). Our levels of energy consumption are unsurpassed globally (although China has exceeded our overall consumption level – not consumption per individual). The text introduces a graph that maps our overall consumption habits, as well as where we source our energy. As you can easily see, the vast majority of our energy comes from nonrenewable resources (coal, oil, natural gas). This is changing, as we are moving to increase our use of renewable energies (which range from wind to solar, as well as nuclear). Another important trend to discern from the charts is the U.S. became energy dependant on other countries since about the mid-1950s. This is shown in how reliant we have become on imports for energy production since 1950.108

In recent years the United States has increased its domestic production of energy, particularly natural gas and oil extraction through methods that include fracking technologies. This has been combined with a downturn in economic activity in the latter half of the 2000’s and early 2010’s, which has resulted in a decrease in overall consumption. Lower consumption with higher production is creating a potential energy boom in the United States focused mainly on nonrenewable energy, particularly hydrocarbons such as oil and natural gas. This mostly terrestrial (on land) activity has

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Our substantial energy needs are combined with a history of technological development and political insecurity that has helped to create our current mosaic of regulatory mechanisms related to energy development and use. As noted earlier, our expanding reliance on technology increases our need for energy to power that technology. This coevolution between energy needs and technological growth began with the industrial revolution and the mechanization of our world. First coal (via the steam engine and similar technologies) and then oil (for greater efficiency) became the primary sources of meeting this technology demand. Over time, technology itself has provided us with advancements in the ability to transmute energy from one form to another: whether that is harnessing the power of the wind or sun to create electricity, or the use of electricity to power more of our lifestyle (electric engines for example). Our energy policies have also been influenced by availability. Coal exists in abundance in the United States and is relatively cheap to extract (mine). Based on the direct costs of extraction and burning, coal provides an incredibly inexpensive form of electricity generation (even with its inefficiencies) as compared to other methods. However, if we include indirect costs into the price of coal, it may be that it is not as cheap of a source of electricity as once thought.109 Regardless, coal was (and is) readily available and cheap to access (because it is readily available), and it has been a major contributor to the economic expansion of the United States during the industrial revolution up until today, helping to shape the historical reasons for its use. Finally, our energy policies have been influenced by history. Geopolitical events such as the oil embargo of the 1970s and the creation of OPEC helped to create a sense of urgency in the United States. The idea that our economic prosperity can be tied to influences outside our direct control has impacted this country’s sense of selfdetermination. As such, energy independence in the Untied States has often become an overriding policy theme. The exact means by which this independence occurs is another question. For example, do we become extractive in our goal of independence by increasing domestic production through certain techniques (such as fracking) in undisturbed environments (such as the Alaska National Wildlife Refuge - ANWR), or by increasing offshore production and creating potential issues like the BP Oil Spill of 2010? Or, we may choose to invest in alternative technologies that help to limit our overall demand for energy (hybrid and electric vehicles, increase fuel efficiency standards) as well as seek alternative sources for generating electricity (wind and solar farms). All of these policy directions can lead to a goal of energy independence, but each of them have relative costs and benefits that can be compared between the choices, and by engaging in such an approach the tradeoffs between different policy directions become apparent.

bolstered some desires to increase offshore oil and gas development in U.S. waters.

Those in the economist camp might focus on direct costs, while those in the ecologist camp might want to include indirect costs into an analysis on the overall value of coal as an energy source.

Page 105 of 115 In addition to seeking independence, we may also prioritize other values for energy such as consistency (the capacity to provide a constant supply of energy based on alternating demand) and cost (we may look to provide energy at a competitive price to help spur economic growth and prosperity). In accomplishing these multiple criteria goals, the United States also has to consider the environmental impacts of its energy choices. This is often explicit, such as when the use of certain energy inputs (like coal) becomes the basis for public pollution control under the Clean Air Act, or when the development and funding of a new coal powered plant proposal must undergo NEPA’s environmental review process. However, it can also be implicit, like the decision to increase domestic production of oil and gas and the impacts such a decision can have on the environment.110 In sum, energy policy is not defined by any single law, but rather it is based in policies that reflect political preferences, historical context, and social justice issues. We can look to the actual choices about energy undertaken by the United States and then try and understand how those choices impact the areas of law we have discussed previously (in addition to any specific laws identified in the readings).

Environmental Controls on Supply and Consumption
Do we control our energy consumption because of the environment, or because of global politics? Maybe an accurate answer is both, but the majority of our controls have been directly linked to supply issues, not because of environmental concerns. Historically, we became concerned with energy supplies following the oil embargos of the 1970s with the formation of the Organization of the Petroleum Exporting Countries (OPEC). Since that time, we have pitted environmental concerns against energy independence. An example has been the recurring attempts to develop oil reserves in the Alaska National Wildlife Refuge (ANWR). Do we achieve energy sufficiency (and independence) at the expense of environmental concerns? Or, do we work towards other methods of energy independence (including renewable energy production and conservation)? One main federal law that was aimed at energy conservation is the Corporate Average Fuel Economy (CAFE) standards. These standards were put in place after the OPEC oil embargo in an effort to decrease gasoline consumption (again, not for environmental concerns, but to decrease foreign dependence – plus we did not have enough supply during the embargo to meet demand). The CAFE standards increase average fleet fuel economy to around 30 miles per gallon. In fact, CAFE standards can be credited with brining to the U.S. The Toyota Corolla and Honda Civic. (Demand increased for smaller, more fuel-efficient cars, which Japan had been making for years). Recently (2012), CAFE standards have been increased to meet an average fuel economy of 54.5mpg by 2025 (although it is arguable the change was made in response to climate change as well as our continued foreign dependence on oil).


For an example of how federal offshore oil and gas development policy can impact coastal state management plans regarding protection and mitigation of sea level rise, please see here:

Page 106 of 115 The federal government has used its regulatory structure to create markets for alternative and renewable energy sources by requiring power distributors to purchase, at certain prices, the power generated by alternative sources. Also, the government, as a major purchaser of goods, has enacted policies to any purchase highly energy efficient products, thereby creating a market for such products. Finally, the federal government has aided the individual purchase of energy efficient products (hybrid vehicles) through a credit program on individual income tax obligation. Other federal programs have been more controversial, such as the opening of federal lands for the production of oil and gas resources (resources held in public trust). While such energy production arguably decreases our dependence on foreign oil, it does little to prevent the release of stored carbon dioxide, a molecule known to contribute to global warming. Recently, the U.S. Supreme Court has ruled carbon dioxide is a pollutant that must be regulated under the Clean Air Act (CAA). This ruling suggests federal statutes such as the CAA may be used as a means to regulate energy production, since any such emissions may be subject to pollution discharge permits under the CAA. (The ruling was limited to auto exhaust emissions, but may be applied to energy production facilities that release CO2). Besides these federal incentive programs, there is no direct uniform energy control mechanism under U.S. law. (The Federal Energy Regulatory Commission (FERC) is more of a permitting agency than a uniform agency dealing with energy policy).

The main point of this module is to introduce you to the issues surrounding energy production, and likely also point out the lack of a uniform federal law to deal with energy issues (at least from an environmental perspective). Recent calls in Congress to develop climate change legislation is one example of an attempt to create such a uniform environmental law regarding energy in the U.S. The fact that EPA, in 2012, has begun the process of regulating carbon as an emission from major electricity generators, as well as defining carbon dioxide as a ‘pollutant’ under the Clean Air Act, is a sign that the impacts of how we generate our energy are beginning to take hold on policymakers in the United States. How we ultimately feel about our domestic energy policy depends largely on how we perceive energy needs (as a reflection of our societal and economic wellbeing) in relation to environmental needs. Those who place the environment at the forefront of human wellbeing and prosperity will tend to seek ways to promote energy policies that limit environmental impacts, even if the direct costs of energy increases as a result. Alternatively, those who prioritize economic concerns and the immediate needs of humans may place economic considerations over environmental concerns. Through this categorization process we can hopefully see how energy policy develops. We may also begin to see how other public environmental laws may be utilized to push energy policy in a particular direction. END OF SECTION.

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XII. Global Environmental Law
So far in this course we have focused our attention on the common and statutory laws that apply to protection of the environment wholly within the United States. There is certainly enough to focus on within a single country because of the presumptions that go into the development of the law within that country.111 It is from these presumptions that our rights and obligations are defined; if we change these presumptions then we may be under a completely different set of rules (and thus legal frameworks). And it is these rules that ultimate define policy directions.112 In this module we begin to think beyond the borders of a single country and move into questions of international law related to the environment. It makes some sense to think about environmental law from an international standpoint because the more difficult environmental problems today are global in scale and thus require cooperation between countries when trying to develop solutions. For example, in 2007 when the U.S. Supreme Court was deciding whether or not the Federal Environmental Protection Agency had an obligation to regulate carbon under the Clean Air Act as a pollutant,113 the government (under President Bush at the time) was arguing, in part, that it should not have to regulate carbon because, even if it did, the regulation would have limited impact because other


For example, recall the presumptions we have in the United States about the democratic ideal and the distribution of private property rights regarding land use; this presumption is a key component to understanding the limitations placed on government when attempting to regulate for the public welfare and that regulation impacts our societal ideals regarding private property rights (particularly through the Fifth Amendment to the United States Constitution).

For example, other countries do not believe in the distribution of private property rights in land to individuals living within that country. In some instances, the government has full rights of ownership over the property within its borders and is thus capable of making more unilateral policy decisions that can have a substantial impact on private citizen interests. Thus, the differences among countries in how they apply their domestic laws are connected to the history of the development of the rule of law in those countries. Knowing the different histories and development of law within these countries is referred to as comparative international law.

The Court was actually deciding whether EPA had a mandatory obligation under the CAA to decide whether or not to regulate carbon as a pollutant. At that time EPA was simply not choosing to whether or not it would include carbon as a pollutant. So the legal issue was really whether or not EPA had discretion to not decide on whether or not carbon was a pollutant as defined under the CAA.

Page 108 of 115 countries continue to use carbon in their development (like China and India) thus negating any benefit from regulating carbon in the United States.114 This kind of argument highlights the issues that surround global environmental law; because many of today’s environmental problems span the boundaries of single countries, what kinds of legal mechanisms are available to help solve environmental problems that are the common enemy of all citizens and countries of the world?115 Our goal in this module is to gain a sense of these legal mechanisms and how they might apply to help resolve global environmental issues.

Global Environmental Law Overview
To bring us conceptually back to the fundamental concepts surrounding environmental law, recall the following figure representing the relationship between our environment, social institutions, and economic activity:


The basis of the lawsuit in Massachusetts v. EPA (2007) was that coastal states (including Massachusetts) were loosing public property rights due to sea level rise brought on by global warming, which is being caused in large part by the human emissions of carbon dioxide into the atmosphere. Thus, the coastal states were arguing that the federal government (via EPA) had an obligation to regulate carbon as a pollutant under the CAA to help mitigate sea level rise. The government’s argument, in part, was that even if it did regulate carbon domestically, that regulation would not stop sea level rise due to climate change because other countries would continue to emit carbon at increasing rates – thus highlighting the global nature of the problem (and suggesting a global solution is required).

All countries share a common interest in environmental issues that fundamentally alter background environmental conditions if, by altering those conditions, the capacity for human wellbeing is diminished. Indeed, if we identify human wellbeing as a major driver of policy initiatives across countries (why countries seek to become developed nations), then we can see the commonality amongst countries in desiring background environmental conditions that are stable (rather than dynamic and constantly changing) so that policy initiatives for growing prosperity amongst citizens can occur with the least amount of resistance from environmental conditions.

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The environment represents the constraining factor for social and economic development. Starting from this presumption, we can expand our concept of society and economic activity to a global scale; rather than focusing on the domestic society and economy of a particular nation, we can think about the role of the environment in supplying the necessary means by which a global society and global economy prospers, both today and tomorrow. In order to do this we need to account for the different members of our global society. For example, we often distinguish between developed and developing countries based on criteria regarding the advancement of a particular society. From an environmental standpoint, developed nations are often seen as countries that have utilized the environment in a way that has allowed the development and prospering of those countries at the expense of the environment.116 Developing nations are seen as countries that have yet to utilize environmental assets in the same manner and thus have yet to reach the same level of prosperity as developed nations.117 The question, then, becomes one of how to create fair and equitable legal frameworks for the global community that allow for developing nations to prosper and advance themselves while also allowing developed nations to continue prospering, but doing all of this in a way that does not significantly impact background environmental conditions (the constraining factor for global wellbeing). In order to accomplish this goal we look to form agreements in the international community that bind all nations in a common legal framework so that environmental goals can be met. This is where global environmental law comes into play. What legal mechanisms are implemented at the global level to solve environmental problems? Are they different from national (domestic) legal mechanisms? How does one enforce a law against another nation? These questions are all the purview of global environmental law.


For example, developed nations have utilized hydrocarbons (coal, oil, gas) as a means of ‘cheap’ energy production in order to ‘fuel’ their industrialization and prosperity. One of the consequences of these actions has been to increase the carbon concentration in the atmosphere. This increased concentration has led to the phenomenon of climate change where the impacts are spread across the entire globe; the impacts are not confined to the developed nations.

For example, developing nations have not fully engaged in industrialization. One argument is that, from an equity standpoint, it is wrong to suggest developing nations cannot use hydrocarbons in the same manner as developed nations in order to become developed themselves. Thus, developing nations have a right to use such ‘cheap’ methods of energy production in order to also create wealth and prosperity for their respective inhabitants. A counter to this argument is that technological advances allow for newly developing countries to ‘fast forward’ their development by using alternative sources of energy inputs for growth purposes. Some argue the equity can be achieved by encouraging technology transfer between developed and developing nations so development can occur in ways that limit potential harm to background environmental conditions.

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Subsets of Global Environmental Law
There are three main subsets of global environmental law: • • • International Environmental Law: Law that is applicable to more than one country. Extraterritorial Application of National Environmental Law: The law of an individual country, which may have an effect on other countries. Comparative Environmental Law: Compares two individual nations, asking how each nation, using its own national law, deals with the same or similar legal issue.

International Environmental Law
International environmental law is a process of agreement between two or more countries that is formalized in either a written document, or more traditionally through custom. An international agreement that is between two nations is referred to as a bilateral agreement; an international agreement between more than two nations is generally referred to as a multilateral agreement. Whether bilateral or multilateral in nature, one of the hallmarks of international agreements is that they are always voluntary, meaning one country cannot force another country to become a member to an agreement against their will. This is due to the legal principle of sovereignty, which holds each nation is a free state and cannot be ruled by another (unless they are taken over by force). The issue of sovereignty brings up an important question: to what degree does sovereignty limit the capacity to find agreement on environmental concerns between nations? Some argue that sovereignty makes international agreement difficult (and sometimes near impossible) on issues of global environmental concern because of the nature of environmental issues with global reach. For example, a small island nation may be experiencing significant impacts due to sea level rise brought on by climate change.118 As such, these nations may prioritize global limits on carbon emissions and seek an international agreement on such emissions. Other nations, however, may not prioritize sea level rise because of a desire to continue cheap economic development fueled by hydrocarbons. Because these nations might have greater adaptive capacities over small island nations to deal with sea level rise (for example, the capacity to move inland), they might not share the same concerns (and thus priorities) of the small island nation. This difference in priorities is one reason why global environmental agendas are limited through sovereignty; the ability of nations to simply defect from a proposed international agreement diminishes the potential of such agreements. Even with such limitations there are examples of successful development and implementation of international environmental agreements.

Because of the characteristics of small island nations (small size, low-lying) they are particularly vulnerable to the impacts of sea level rise.

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Examples of international environmental agreements include the Kyoto Protocol and the Montreal Protocol. The Kyoto Protocol (Protocol refers to an amendment in international law nomenclature) was passed in 1997, and set the stage for the current global cap-and-trade program that is being instituted mostly in Western Europe. It was ratified and went into full effect in 2005 (when Russia’s ratification of the agreement brought it into full force). The U.S. signed the Kyoto Protocol in 1997 under the Clinton Administration. However, that same administration failed to present the Protocol to Congress for ratification (for political reasons). When President Bush took office in 2000, he withdrew the U.S. signature of the agreement. Thus, we are not signatory member of the international agreement on climate change (at least the carbon emissions reduction program), even though the United States remains active in its participation. Recent updates to the UN Convention on Climate Change in Mexico (2010) and South Africa (2011) indicate countries are more willing to engage in monetary commitments to mitigate and adapt to the impacts of climate change then otherwise engaging in substantial limitations on the current use of carbon-based energy sources as a means of growing domestic economies. The European Union stands as an exception where this bloc of European countries has been continually pushing to meet carbon reduction requirements that were initially agreed to in 2005. The issue has moved from one of reducing total carbon emissions to one of reducing carbon intensity within the countries, or otherwise allowing total emissions to grow while reducing the intensity of carbon usage on a per capita or similar basis. Another example is the Montreal Protocol (of which the U.S. is a signatory and full member through ratification). The Montreal Protocol was passed in 1987 as a means stopping the manufacture and use of chloroflorocarbons (CFCs) because recent scientific research had shown these molecules were responsible for diminishing the ozone layer. This layer is responsible for blocking much of the harmful ultra-violet (UV) radiation that is emitted by the Sun. Prolonged UV exposure can lead to skin irritation and cancer in animals including humans. One might ask why the Montreal was successful while the Kyoto was not (at least by the US). The true answer to this question is better served in an international course, but one simplification is Montreal dealt with one substance, CFC (where there was a ready-made alternative), while Kyoto deals with many substances, and the political-economic effects of Kyoto are far-reaching.

Extraterritorial Application of National Environmental Law
In previous work we discussed the National Environmental Policy Act (NEPA). Recalling NEPA applies to major federal actions, significantly affecting the environment; it requires a full environmental analysis of such actions prior to allowing the action to commence. NEPA has also been used outside the U.S. for actions taken by citizens or corporations of the U.S. that require federal permitting, and have the potential

Page 112 of 115 to harm the environment. NEPA’s full application outside of U.S. soil is a legal question that is still in dispute, and will not likely be resolved anytime soon.119 Other laws mixed with consumer education have an effect on international trade. Consider labeling laws as a way to accomplish an environmental objective in combination with consumer education. In the 1980s the United States was at the forefront of marine mammal protection with a domestic law (the Marine Mammal Protection Act) that made it illegal in the U.S. to harass, hunt, or annoy marine mammals. One of the intended beneficiaries of this law was the Dolphin. However, tuna fishing in jurisdictions outside the United States were resulting in a number of dolphin deaths; the dolphins tend to swim above the tuna schools and were being caught in nets while the tuna were being harvested. A number of dolphins were dying in the process as they were drowned while the nets were slowly being pulled up toward the fishing vessel. The U.S. wanted to enforce its territorial law against fishers from other countries but could not do so directly. Thus, the U.S. instituted a ban against tuna imports that did not utilize dolphin-safe methods of fishing.120 The ban was found to violate international trade agreements (other international law) of which the U.S. was a signatory. Thus, in this case, an international law was preventing the U.S. from enforcing provisions of a domestic law to carry out a policy of marine mammal protection. So the U.S. could not ban imports of tuna from other countries, but it certainly could ensure accurate labeling of imported tuna in the U.S. Thus, domestic labeling laws were updated to include a dolphin-safe label that could only legally be used on cans where the tuna was proven to be caught using such safety measures. With the domestic law in place, the only remaining element was consumer education. An educational effort ensued where consumers began to vote with their wallets. Tuna without the dolphin-safe label began to loose significant market share resulting in a voluntary change in industry standards adopting the dolphin-safe fishing methods. In the United States labeling of dolphin-safe tuna shut down an international tuna industry using unsafe netting methods by the mere fact that consumers simply chose to purchase only the dolphin-safe brand. Thus, countries that wanted access to the U.S. consumer market were financially driven to adopt the dolphin-safe fishing gear. This is a prime example of how policy objectives can be achieved by a mix of legal frameworks and public advocacy. The original move to ban tuna imports violated international law, so an alternative path was chosen that respected international agreements but focused on consumer choice as a means of creating change; this is an exemplar identifying how legal frameworks and consumer action can combine to achieve a policy goal.

For a detailed examination of applying domestic laws to shipping vessels (via flag state status) on the open ocean, please see here:

The addition of escape holes near the top of the nets had proven to be a sound (and simple) technology allowing the dolphins to escape the nets while the tuna was being harvested.

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Comparative Environmental Law
Comparative environmental law seeks to find the sources of environmental law from different countries, and compare the effects of such laws. In essence, one looks to the body of law in Country A on a subject and then compares it with the body of law in Country B. Similarities and distinguishing characteristics are noted. Through this process one can gain deeper insights into the relative means by which policy goals and objectives can be achieved. For example, is it more or less likely for Country A to be capable of addressing an environmental concern based on its body of law than Country B? One means of comparing between bodies of law (and the relative merits between countries) is determining the source of environmental law in various countries. In order to understand this ‘source of law’ comparison, recall our hierarchy of laws pyramid, recreated here:

As already stated, the Commerce Clause is the source of environmental law in the U.S. Alternatively, the European Union (EU) has adopted a specific constitutional provision that gives them power to deal directly with environmental issues. Implications are likely the EU can go farther than the U.S. in adopting encompassing environmental regulations. The reason why is the Commerce Clause is an imperfect source for protecting the environment simply because it does not speak directly to the environment. Rather, the Clause regulates commerce between the states (interstate commerce). Environmental issues often arise as subjects of interstate commerce (such as the regulation of carbon as a pollutant under the Clean Air Act: carbon results in climate change, a phenomenon that impacts interstate commerce) and this is clearly how the

Page 114 of 115 federal government establishes jurisdiction in many cases.121 However, there are instances where the federal government’s ability to protect the environment is limited. For example, the SWANNC case deals with the attempt by EPA to regulate wholly intrastate bodies of water under the Clean Water Act (small ponds with no hydrologic connection to rivers, etc.). The U.S. Supreme Court held the EPA does not have jurisdiction under the CWA because it has no connection to interstate commerce (where jurisdiction resides).122 It would be much easier for the United States to regulate on behalf of the environment if it had the right to do so under a constitutional provision like the European Union. Thus, in a comparative law sense, it may be easier to regulate the environment under EU law because the source of power to regulate on behalf of the environment is both constitutional and direct (derives from the environment rather than commerce). Another example may be the litigation process itself. As shown in previous weeks, the U.S. system allows for direct litigation of environmental harms (through negligence claims for example). China does not have a direct litigation route for such issues, but rather favors a mediation process that favors the collective benefit over individual remedy.

Environmental issues viewed from a global perspective can be daunting. Getting sovereign nations to agree on a particular path is difficult, especially when that path is couched in ‘economic prosperity.’ Major developing nations such as China and India are focused on continuing their economic development. Since climate change will remain the decisive environmental issue for decades to come, it will be interesting to see how countries respond to growing threats brought on by climate change over time. Whether they will be more willing to adopt international agreements that comprehensively deal with major environmental issues remains to be seen. The United Nations Framework Convention on Climate Change has proven to be a mixed bag, where real commitments to prevent the impacts of climate change seem to be moving towards a mitigation/adaptation philosophy; this is occurring at the expense of the most vulnerable like small island nations. In many ways the issues presented when thinking about global environmental law are the same as domestic considerations: do we prioritize nature over economic prosperity? Do we consider future generations in our actions today? Do we agree the environment

Remember state governments can enact environmental protections for issues that occur wholly within the state.

The Clean Water Act allows for the protection of the nation’s waters (interstate commerce connection). For a detailed look at this issue of interstate commerce applied to the Clean Water Act and federal jurisdiction please see the following:

Page 115 of 115 sets the outer limit of our social and economic potential? The only difference at the international level is the lack of compulsory legal mechanisms that can exist at the national level. Regardless, understanding the basic frameworks of global environmental law is an important way of thinking about the subject within the context of some of the most daunting and pressing issues of our time – because those environmental issues are global in scale and impact. END OF SECTION. END OF DOCUMENT.

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