DEPARTMENT OF PUBLIC POLICY

POL 661: Environmental Law

Lecture 1: 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 10 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 10 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.
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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 weve 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
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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: http://works.bepress.com/chad_mcguire/34/
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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 10 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
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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).
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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 10 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.
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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:

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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.
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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
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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 10 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
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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 10 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.

Conclusion
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.

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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).