Introduction, Sypmosium Common Law Environmental Protection (original) (raw)
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Environmental Law: Then and Now
Washington University Journal of Law Policy, 2010
This symposium originated when the editors of this journal approached Professor Mandelker about publishing an environmental symposium issue. He graciously consulted me and we decided on a yin and yang symposium. We selected five core environmental statutes: the Clean Air and Water Acts, the Endangered Species Act, the Toxic Substances Control Act, and the National Environmental Policy Act. We then paired established scholars with younger counterparts. The basic idea was that the senior scholar would look back at the assumptions behind the original Acts, examine how the assumptions have held up since the environmental decade (1969-1980) in light of evolving knowledge about the nature of the problems and the performance of governance institutions, and assess what worked and what did not work about each statute. Junior scholars would speculate on what in these statutes will continue to work and what reforms are needed to meet the future challenges of environmental protection. Professor Mandelker and I are deeply grateful to the Washington University School of Law for sponsoring an authors seminar on March 20, 2009 in St. Louis. All the authors benefitted from the conference presentations and exchanges. We are equally grateful to
The Coming of Age of State Environmental Policy Acts
Public Land and Resources Law Review, 1984
PUBLIC LAND LAW REVIEW statements more closely. In addition, those courts apply the SEPA requirements for circulation of and comments to an EIS more strictly. Finally, the majority of state courts have required state and local agencies to abide by the substantive policies as well as the procedural requirements of their state acts. Since 1969, NEPA, and federal cases interpreting it, have served as the source of persuasive authority in state cases interpreting and applying SEPA. 8 Since the late 1970's a large body of state law, interpreting and applying state environmental policy acts, has developed. This article analyzes the body of state case law that has arisen as a result of the interpretation and application of state environmental policy acts. I. THE EIS PROCESS AND COMMON REQUIREMENTS OF STATE ENVIRONMENTAL POLICY ACTS All state environmental policy acts require, to varying degrees, preparation of a statement or report (EIS) describing the environmental impacts of a proposal, alternatives to the proposal, and unavoidable adverse environmental effects. The EIS process follows a common scheme. First, a proposal surfaces which calls for action by a governmental body. Under the requirements of a SEPA, the governmental body determines if the action falls within the purview of the SEPA. It then determines if the environmental effects of the proposal, if any, are significant. If so, the agency prepares a draft and a final EIS, and, finally, reaches a decision on the proposal. This process serves as the framework to analyze and compare the requirements of various SEPA's in the following discussion. Three points of analysis are necessary in any discussion of the SEPA schemes. The first point is found in the question: when must an EIS be prepared? This comprises several subquestions: (1) Who, among the categories of state agencies, local governments, quasi-governmental bodies, and private entities, must prepare an EIS? (2) What constitutes a major action significantly affecting the quality of the environment? (3) What must an agency do before it determines that an EIS is or is not necessary? The second point lies in the requirements for the contents of the EIS. Stated differently, when is an EIS "adequate"? The third point is, how are decision-makers required to treat an EIS once it is prepared? The following analysis will also comment upon the standard of review which state courts apply to each of these steps and consider specific provisions in state environmental policy acts and other state laws which
Stan. L. Rev., 1984
In 1971, Ezra Mishan brilliantly satirized the views of a Dr. Pangloss, who argued that a world of largely unregulated pollution was "optimal" because cleanup would involve enormous transaction costs.' Less than 15 years later, Professor Latin uses the same Panglossian argument to rationalize the current regulatory status quo.2 He not only accepts but endorses our extraordinarily crude, costly, litigious and counterproductive system of technology-based environmental controls. Like Mishan's Pangloss, he seems to believe that if it were possible to have a better world, it would exist. Since it does not, the transaction costs involved in regulatory improvement must exceed the benefits. Proposals for basic change accordingly are dismissed as naive utopianism.
Fateful collision: how revolutionary environmental laws of the 1970s led to a rift in U.S. society
SSRN Working Paper, 2022
From the later 19 th Century to the early 1970s the U.S. was consistently at the frontier of publicly relevant technology and policy. Groundbreaking environmental laws of the early 1970s continued this tradition. The National Environmental Policy Act of 1969 (NEPA), the Clean Air Act Amendments of 1970 (CAA) and subsequent environmental laws made rapid progress against environmental pollution; the U.S. became the world leader in environmental policy. However, the CAA transformed the existing system of short laws and independent federal technical agencies that maintained cooperative relationships with states and the private sector. The CAA and subsequent laws gave command & control authority to the Environmental Protection Agency (EPA) over all national activity related to environmental pollution. Adversarial regulatory provisions including citizen suit in federal court especially affected manufacturing and industry, the prime sources of pollution. The new laws promoted litigiousness and aroused antagonism in the business community. The results contributed to economic decline and exodus of business from manufacturing and industry to economic sectors less affected by the new regulations. Reacting to the developments and the stagflation of the 1970s, zealous officials in the first Reagan administration rolled back regulatory enforcement and controls on leasing of federal lands. This led to Congressional backlash. Conflict over environmental policy widened to partisan political polarization. In the 1980s the Democratic Party became the party of environment and the Republican Party became the party of business and industry. The rift led to Congressional gridlock, which continues to cripple the federal governmentʻs ability to address major national problems, including global climate change. The collision in the title refers to the conflict of powerful new environmental laws in the 1970s with economic development. It is suggested that to resolve polarization in U.S. society it will be necessary for the U.S. to move from command & control regulation and toward more cooperative environmental policies adopted by European nations. These have allowed Europe to become the world leader in global climate change performance and policy.
Jewish and Israeli Law - An Introduction, 2017
Clean Air Act,l Congress has developed a plan by which the states may institute their own programs to control air pollution within their boundaries while keeping within the framework of a general federal plan. While the Act declares a Congressional policy of leaving the responsibility for the achievement and maintenance of air quality to the states,2 it also reveals an intent to develop a viable national control strategy through the provisions authorizing federal intervention should states fail to implement or enforce minimum federal standards. 3 The wrinkles of "new federalism" inherent in these provisions are sometimes surprising, often confusing, and invariably complex. The following sections will explore the scope and enforceability of the Massachusetts statutes and regulations which implement the Act's provisions for the oontrol of air pollution. Under the provisions of the Clean Air Act, several phases of statefederal interaction must precede final adoption of state implementation plans: (1) federal designation of air quality control regions;4 (2) federal listing of air pollutants for which completed air quality criteria and standards must be issued;5 (3) federal publication of national primary and secondary ambient air quality standards 6 for each air pollutant for §21.2. 1 42 U.S.C.
Environmental Law and Public Policy
Discussion Papers, 2004
This chapter provides an economic perspective of environmental law and policy with regard to both normative and positive dimensions. It begins with an examination of the central problem in environmental regulation: the tendency of pollution generators in an unconstrained market economy to externalize some of the costs of their production, leading to an inefficiently large amount of pollution. We examine the ends of environmental policy, that is, the setting of goals and targets, beginning with normative issues, notably the Kaldor-Hicks criterion and the related method of assessment known as benefit-cost analysis. We examine this analytical method in detail, including its theoretical foundations and empirical methods of estimation of compliance costs and environmental benefits. We include a review of critiques of benefit-cost analysis, briefly examine alternative approaches to analyzing the goals of environmental policies, and survey the efforts of the Federal governmental to employ these analytical methods. The chapter also examines in detail the means of environmental policy, that is, the choice of specific policy instruments, beginning with an examination of potential criteria for assessing alternative instruments, with particular focus on cost-effectiveness. The theoretical foundations and experiential highlights of individual instruments are reviewed, including conventional, commandand-control mechanisms, economic incentive or market-based instruments, and liability rules. In the economic-incentive category, we consider pollution charges, tradeable permit systems, market friction reductions, and government subsidy reductions. Three cross-cutting issues receive attention: implications of uncertainty for instrument choice; effects of instrument choice on technological change; and distributional considerations. We identify a set of normative lessons in regard to design, implementation, and the identification of new applications, and we examine positive issues, including three phenomena: the historical dominance of command-and-control; the prevalence in new proposals of tradeable permits allocated without charge; and the relatively recent increase in attention given to market-based instruments. Finally, the chapter turns to the question of how environmental responsibility is and should be allocated among the various levels of government. We provide a positive review of the responsibilities of Federal, state, and local levels of government in the environmental realm, plus a normative assessment of this allocation of regulatory responsibility. We focus on three arguments that have been made for Federal environmental regulation: competition among political jurisdictions and the race to the bottom; transboundary environmental problems; and public choice and systematic bias.