Governance use of the police power, opposed to the common law.

Government enact legislation, statute etc.

Nez perce national forest

US Forest Services
- Forest service organic act
- Multiple use/sustained Yield Act.
- National Forest management Act.

Federal land managed by the United States. What we want of this forest?
National Environmental Policy Act (NEPA) (1969). For federal agency
All rounded corporate legal with previous experience in the energy, exposed to international
environment and work well with various stakeholders.
- NEPA as conceptually
a. Information about environmental conditions is crucial to law and policy.
Addressed assumptions, that the actors have full information of the environmental
consequences of his action.
b. Public goods underproduced by market forces
Information rarely available, it’s nature of public goods (meaning once acquired, people
cant profit from it but it’s available for everybody to use. Consequently, the market will
underproduce)
c. NEPA is information forcing, design to force federal agency before they act to look
before they leap, to have a sense of the value of the various ecological parts that they
might be disturbing.
- NEPA as technically, use the statue to read statute.
a. All agencies of the US federal govt
b. Shall evaluate the environmental impact of federal action
c. That significantly affect the quality of the human environment
The “EIS” Environmental Impact Statement requirement, technically:
 Actions significantly affecting the quality of the environment

When reading statutes, the scope of analysis:

a. Direct effects, including effects of all actions “connected” to the projects.
- See if certain term is defined or regulated on, some implementing regulation / clarifying
regulations to clarify what NEPA require.
b. Indirect effects, that are reasonably foreseeable (including cumulative effects)
- Air pollution is indirect effects
- Private developer come in and builds development on the surrounding, is indirect effect

Thomas v Peterson (1985)

Proposal to build a logging road near nez perce forest,
- forest service concludes that there is not environmental impact (FONSI Forest of No
Significant Impact).
What did court do: Held a violation of NEPA, injunction to stop the building of the road. Tbe logging
is “connected” to the logging road. improper scope of analysis. The agency’s analysis was failed to
consider the obviously foreseeable. Indirect and cumulative effects of building the logging road.
The requirement to do an environmental impact analysis.
The federal endangered species act:
a. conceptually
1973, US congress was told of an extinction epidemic “something other than the normal
process of natural selection”, “half of recorded extinction of mammals over the past 2000
years have occurred in the most recent 50 years period”
“the value of this genetic heritage is quite literally, incalculable”

TVA v Hill (1978)

Congress spoken in the plainest of words, making it abundantly clear that the balance has
been struck in favor of affording endangered species the highest of priorities, thereby
adopting a policy which it described as “institutionalized caution”
Institutionalized caution

ESA start by listing endangered species.

Section 7 : all federal agencies must ensure that action carried out by them do not
jeopardize the continued existence of an endangered species or result in the destruction or
modification of the habitat of such species.
Section 8, no person may take any endangered species.
Section 3, definition of person “an individual, corporation, or any private entity; any federal,
state, municipal entity or political subdivision; or any other entity subject to the jurisdiction
of the US”
Definition of “take”. Harras, harm, pursue, hunt, shoot, wound, kill capture, collect
Section 10. “incidental take” provided there is an approved habitat conservation plan (HCP).
The idea is counter bailing measure take to manage the endangered species.

Conservation biology up to the task? Provides tool to actively manage the land we have, to
prevent extinction of animals.

Is the law up to the task

Sweet home v Babbit (US 1995)

Harm : an act which actually kills or injuries wildlife, including significant habitat modification
that impairs essential behavioural pattern, such as breeding, feeding, sheltering.
Broader definition of harm to include significant habits modifications
Suggesting regulations is subject to normal understanding of “proximate causation”

“causing” habitat modification

- causing-in-fact or but-for-causation
ie. Blasting in the quarry, the animal would not die.
- Proximate causation (reasonably foreseeable)
Proximate cause hypos
a. Park ranger paves over hillside where endangered bears den? The den was knowingly by
the park ranger, the law would know the reasonably foreseeable, will be attacking its
habitat. Cause in fact and proximate cause
 b. Draining a lake where is known to be an endangered minnow? Draining a lake is
destruction though its privately owned. No person shall take endangered species. Cause
in fact and proximate cause.
c. Farmer plow field, tornado comes, pick up loose soil transport 20 miles, dumps in river
on the endangered salmon nests? Has it been a take? A attenuated proximate cause
hypos.
d. Former plows adjacent field? yes
e. Company in paris emits GGS from a factory contributes to global warming, reducing sea
ice in the arctic, affecting polar bears (a listed endangered species)? Under the principle
of proximate clause, not.

b. technically
reading statutes carefully

Tennese Valley Authority v Hill (1978)

Propose Tellico dam over tennese river, would attract industries. Federal action proposed that would
largely impact the environment.

EDF v TVA (ten 1973)

- this was a NEPA action, seeking injunction until EIS could be prepared.
- Proposed dam would flood 16000 acres and some of best remaining farm “bottomland” and
hunting/fishing land on the little
EDF v TVA (6th Cir 1974)
- EIS prepared and judged “adequate”
- Injunction lifted, project can re-commence
- NEPA entirely “procedural”

ESA entered the picture because it is 1973, discovery of endangered fish based on ESA section 4/

Hill v TVA (6th Cir 1977)

- Plaintiff now seek to enjoin the dam, entirely. To close the dam for good.
- District court refused, finding that it would wasting $53 million already spent
- Court of appeals, reverse, enjoins further construction under ESA.
TVA v Hill (US 1978)
- Action do not jeopardize the living of endangered species.
- Section 7 of ESA requires all federal agencies to “insure” that their actions do not
“jeopardize" continued existence of endangered species.
- Did section 7 prohibit the completion of the dam? Yes, it enjoins any further works of the
dam.
- Court urged to use “common sense”, “but is that our function? We have no expert
knowledge on the subject of endangered species. Congress has made it abundantly clear
that the balance has been struck in favor of affording endangered species priority.
- Congress did not amend the statute to allow the dam.
- Congress did create a committee to meet in “exceptional circumstances” (the god squad) to
carve and exception for the dam.
- The dam was a dead end of the society,
 - 1978, appropriation rider (tiny probation) and allowed the dam to finish.
- The last endangered small fish is gone on 1979
- Court TVA v Hill, how powerful the endangered species is.

ESA in general
- Remarkably effective
- Continual political fights over implementation of the chronic

Political economy of environmental Law

From statute “NEPA” and “ESA”

Where statute above come from?
Why would national legislation pass a bill like above?

1. The “public goods” problem

Standard economic model that looks at the “public goods” like the environment.
2. The “logic of collection action”
a. More free riding among public than among special interest
b. Special interest influence
Why are there any strong environmental statutes?
1. “More public regarding action” by the public than standard self-interest model predicts
2. Self interest the norm “bursts” of public regarding behaviour “republican moments”
Implementation of such statute depends on powerful agency or delegate
1. Typically, by regulatory agencies
2. Governed by administrative law
a. Courts generally deferential to agencies
b. Need to win at the agency level
Which level of government should do the action?
1. Federal or state/province?
a. Virtues of experimentation
b. Race to the bottom
2. International level
a. Global trade of the environment
b. General agreement of tariff and trade (GATT)
c. World trade organization (WTO) ; WTO on barring shrimping & turtle (shrimp turtle II)

Introduction to “Risk” in Environmental Law, the Case of Pesticides.

Pollution and the regulation of toxics substances.

Risk – the case of toxic substances.

1. Conceptually, the role of risk in general in environmental law
a. Not certain,
b. But ‘uncertainty” isn’t quite the same as “risk”
In economics slightly different, uncertainty means have nothing to clue about something
going to happen. Risk is something that have some information: probability and
something happening.
 2. Technically, pesticide regulation as an example.
a. In US the federal insecticide, fungicide & rodenticide act (FIFRA)
All pesticide must be registered and must not show any “unreasonable risks” to people
or the environment, taking into account the costs and benefits of the pesticides.
b. Silent spring from the fear that pesticide would poisoning the world
Dew chemical v Blum (1979)
245T an herbicide active ingredient used to control weeds in forest, pastures, right of
way. Used by the US military as agent orange at the Vietnam war.
What evidence of risk?
1) Contaminated with small amounts of TCDD which can cause “feto toxic and
teratogenic effects in animals at extremely lose dose levels”
2) Epidemiological “connection” with increase in human “spontaneous abortion” in
Oregon
Cost benefit analysis
1) Emergency suspension – short time span
2) No evidence alternatives are not available
EPA certainly made “no clear error of judgement” in its assessment of the low benefits

Risk regulation often depends on conflicting evidence and a judgement whether these powerful
agencies that implement enviro law have reasonable basis to conclude that there’s a risk

Precautionary principle
Alternative to risk-based regulation

Canada/US v EU , beef hormones dispute:

- General agreement on tariff and trade (GATT)
- WTO framework
- In US, very common in cattle to be given growth hormones. EU didn’t want import of such
product.
- Global trade principles:
a. Articles I and III – aspire to free trade among countries
b. Articles XX(g) – nations may restrict imports “relating to the conservation of natural
resources”
c. Article XX (b) – nations may restrict imports “necessary to protect human health” –
agreement on sanitary and Phytosanitary Standards (SPS)
- Canada/US v EU beef hormone disputes:
a. EC imposed ban on beef treated with certain growth promoting hormones
b. WTO adjudicated the disputes, US/Canada successfully challenged before a WTO panel
1998
c. Doesn’t not meant EU shall allow import beef with the hormone.
d. 2008 a second WTO appellate panel held:
Test is not whether WTO panel think a risk assessment is correct, but rather whether it’s
supported by coherent reasoning and respectable scientific evidence
Recommended further proceedings

- Precautionary principle v risk assessment?

-
Cleaning up contamination
- Resources conservation and recovery act
- Clean water act
- Oil pollution act
- Comprehensive environmental response, compensation and liability act (CERCLA):
a. Addressed release of “hazardous substances”, don’t include petroleoum.
b. “released” into the environment
c. Can require short time “removal” responses and long term permanent “remedies”
d. Clean up to standards established in other federal laws
e. “Remedies’ to be the cost effective
CERCLA liability provisions:
1) Owners and operators of a facility
2) Past owners or operators at time of disposal
3) Those who “arranged disposal “
Are each strictly liable for cleanup costs
New York v Shore reality corp (2d cir 1987)
- Formed to but 3.2 acre site on which build condominium
- 700000 gallons of hazardous waste already stored in property from previous owners
- Is shore realty corp liable? Yes, categorized as the current owner.
Superfund sites cleanup
- CERCLA created a fund that at its largest contained $9 billion
- Estimates of the national clean up bill for contaminated sites in the US estimates $100-
$500billion
- National priorities list (NPL), sites- the most dirty known sites (superfund sites)

Risk Economics, Fairness and Environmental justice: Another “Devil’s game and the “island” game

Worst Case Risk

Risk Distribution

Environmental Justice, Water Pollution, Claims to Human Right to Drinking Water, Fracking and
Insights from an Economic Model of Regulatory Cost-Effectiveness
Issues involving fresh water and water pollution in relation to the risk distribution on the concept of
environmental justice. The legal approach to transboundary shipments of waste, using US and
international trade as case histories to illustrate the challenge posed to environmental law by claims
of environmental racism and injustice.
Introduction of American Safe Drinking Water Act and UN measures articulating of human right to
drinking water, and considering worldwide phenomenon of hydraulic fracturing (“fracking”) and its
intersection with freshwater resources.
Introduction of technology-based regulatory design of the American Clean Water Act.
Theory on the concept of economics cost-effectiveness and its role in pollution-control regimes in
Clean Water Act.
The concept to explains interest in the designs of “markets” for pollution control.
Statement of accomplishment with Distinction.
Waste and Commerce : Lesson from US and International Law
Environmental distribution of Risk (how risk is distributed, not only number outcome by the reason
behind it).
Who bears the risk of environmental distribution?

Environmental justrice
City of philadelphia v new jersey (1978).
Solid waste of CoPare contracted to land in new jersey, however new jersey has adopted statute
prohibited importation of solid waste unless the importation action permitted without endangered
the health of population.
Supreme court of new jersey confirm “interstate shipment of waste is commerce” and commerce
was under the congress to regulate (unconstitutional)