The Role Of Public Law In Controlling Pollution

On Earth Day in 1970, environmentalism emerged in part as a populist movement which enlisted lower-middle-class mothers concerned for the health of their children.34 Stories about hazardous wastes buried in urban neighborhoods, rivers that caught fire, a blowout of an oil well off the coast of Santa Barbara, accidents in chemical production facilities, and other incidents excited populist resentments that erupted in understandable moral outrage. Rachel Carson's Silent Spring (1962), among many other studies, described the destruction of wildlife by pesticides and demonstrated how negligent the nation had become in protecting its natural and ecological heritage. Americans agonized over cities filling with smog, species becoming extinct, wildlife disappearing, oil spills, fish kills, detergents foaming in rivers and lakes, beach closings, and any number of horrors which led them to regard pollution as a menace gone out of control.

When the astronauts returned from the moon with pictures showing North America covered with clouds of pollution, Americans felt ashamed as well as afraid. The political response to the poisoning of neighborhoods, the destruction of wildlife, and the fouling of the water and air did not depend on a calculation of how these moral failures affected the economy. Rather, Congress acted to reduce environmental pollution and degradation in the same spirit it acted to end child labor; establish civil rights; improve unconscionable conditions in sweatshops, company towns, and mines; set a maximum workday and a minimum wage; relieve the suffering of the very poor; provide some form of public health care; combat discrimination; and establish other programs to vindicate the nation's claim to being a caring, compassionate, law-abiding community.

Boomer vs. Atlantic Cement Company played in the New York courts from 1967 to 1970, at the time Congress was considering major amendments to the Clean Air Act. Those who testified at congressional hearings looked over their shoulders at the Boomer courts and noted the role of pollution control technology in defining property rights. One witness said:

The [Boomer Appeals] Court discussed the state of the art and said they could not foresee any improvement in the future. I think this is a step in the wrong direction. I think the courts and the legislators have to provide inducements to industry to see that there will be improvements in the state of technology and such inducements have to be written into the law.35

Between 1969 and 1978, Congress enacted eight major pollution control statutes as part of a wave of environmental legislation that responded to the moral aspirations of American society. These aspirations centered on four normative issues. The first responds to popular sympathy for or empathy with the victim of pollution: the worker, neighbor, homemaker, or child who is injured or dies as a result of exposure to a toxic substance in the workplace or in the environment. The second concerns the protection of rights. Traditional forms of private law - that is, remedies for tort including nuisance - remain the first-line defense against pollution. Since it is often hard to match plaintiffs with defendants in cases of mass torts, public law has to supplement private law. A statute regulating pollution can be understood as a socially efficient way to control the kind of assault or trespass that traditionally finds its remedy in common law.

Third, Americans are concerned about pollution for cultural and patriotic reasons quite apart from the dangers that, from a scientific point of view, pollutants may pose to individuals. Americans are committed to the idea that America is and ought to remain beautiful. Smog-filled air, polluted rivers, dead lakes, and fouled land offend our cultural values and sense of national dignity and pride. Fourth, while markets may help consumers to form and to satisfy personal preferences, democratic political institutions allow citizens to deliberate together to choose common goals and aspirations that they could not achieve or even conceive alone.

Society regards and should regard pollution in the typical case as a social evil to be minimized, not as a social cost to be optimized. Like any trespass, pollution has to be understood primarily as a moral failure, not as a market failure. Pollution is to be treated as an ethical problem and not primarily as an economic one. At the same time, if society were oblivious to the economic costs of pollution control, it could cause industry to cease; jobs would become scarce and inflation rampant.

In 1970, Congress amended the Clean Air Act to set standards for air pollutants to assure an "adequate margin of safety" to protect the public health. With respect to "hazardous" pollutants, Congress required an "ample" margin of safety. The moral basis of pollution control law is so obvious, as Maureen Cropper and Wallace Oates observe, that "the cornerstones of federal environmental policy in the United States," such as the Clean Air and Clean Water Acts, "explicitly prohibited the weighing of benefits against costs in the setting of environmental standards."36

Even if statutory law explicitly prohibits the weighing of benefits against costs, it cannot become cost-oblivious because at some point society must recognize the law of diminishing returns. Policies undertaken to eliminate small risks, moreover, often create greater risks of other kinds. Commentators on all sides asked "how safe is safe enough?" This question implicitly inquires how we can function as a society while keeping in mind two goals - the right of individuals to be free of coercion and the need of the community to secure the advantages of overall economic growth.


If pollution-control law were to pursue only moral and not economic objectives - if it intended purely to prohibit trespass and to protect public safety and health - agency actions could become "cost-oblivious."37 If regulations are oblivious to costs, they may slow or impair the growth of the economy on which social well-being or the standard of living primarily depends. Everyone will suffer on balance as a result. Accordingly, it is important to identify "resting points" or "stopping points" - levels of pollution that are acceptable given the costs of further reductions and the burden of those costs on the overall economy.

How has environmental regulation managed to keep two opposed ideas in mind at the same time, that is, both to reduce coercion and at the same time to accommodate growth? Environmental policy at its best (which may not be typical) has recognized that even if pollution is an evil to be minimized - rather than a cost to be optimized - it is to some extent a necessary evil, since economic production requires some emissions and effluents. Accordingly, society has developed a number of ethical tests and standards that it applies to set allowable levels of pollution, to determine at least for a time how safe is safe enough, clean is clean enough, and so on. These resting points, as I shall argue in later chapters, rely on ethical principles and moral intuitions that help society strike a balance between contradictory ideas, in this case, a principled abhorrence of pollution as coercion and an equally principled belief that economic growth is essential to social progress and welfare.

One well-known principle is the idea of de minimis risk. The law does not have to regulate risks that are so small they are hardly detectable. Governmental agencies such as EPA generally regard as de minimis a "1 in a million" increased risk of a bad outcome to a person exposed to a hazard over a seventy-year lifetime in a large population. We all take greater risks all the time without thinking about them. In this context, one may quote Lord Rothschild: "There is no point in getting into a panic about the risks of life until you have compared the risks which worry you with those that don't, but perhaps should."38

Another concept useful to strike a balance between pollution control and economic growth has to do with "benchmark" and "best method" standards for various industries. If the idea is to maximize through regulation the number of lives saved (or deaths or injuries avoided), moreover, then economists advise that we will do best if we equalize the marginal cost per life saved or injury avoided across programs. We need a benchmark amount - say $6 million - to test different regulations to see if they require society to spend more or less than that amount for each statistical life saved or death avoided. If there are significant cost differences, these have to be defended by some moral argument or reason, which often can be done, since some risks are more odious than others to society. A benchmark figure, a sort of average number, is needed, however, to assess regulations to make sure cost differences can be justified and explained.39

After the Union Carbide chemical disaster in Bhopal, India, killed thousands of people, Congress enacted a statute that required firms to collect and disclose to the public data on the releases and transfers of various toxic chemicals from industrial facilities. In the Toxic Release Inventory, EPA provides an enormous database that allows members of the public to discover who is releasing what into the environment - and on that basis help to control, perhaps by shaming, industrial polluters.

Lawyers may use this database to seek clients with diseases or injuries possibly attributable to an industrial polluter. This sort of liability, which every polluter must fear, remains the first-line defense of the nation against industrial hazards. Legal decisions in nuisance and injury cases respond to expectations about what kinds of technology industry is morally as well as legally obliged to adopt to reduce whatever emissions and effluents it may produce. The nature and extent of property rights are defined in legal decisions in tort - decisions determining who is liable for what and who must cease a nuisance entirely.40

In many contexts, technology-forcing regulation can allow morally acceptable amounts of pollution. In many industries, initial gains to the environment are inexpensive; eventually the cost of controlling the "next" or "incremental" unit of pollution increases. At some given state of technology, one can often find an inflection point or "knee of the curve" - a point at which the cost of controlling the next or marginal unit of pollution increases very rapidly, and returns to the environment rapidly diminish per dollar spent. One morally acceptable way to allow some pollution (for example, through "cap-and-trade" markets for pollution allowances) is continually to encourage or prod industry to improve its processes and technologies to move the knee of the curve -the point at which costs may go asymptotic - ever farther out along the pollution-control axis. To the extent the government can encourage industries, through incentives and threats, to invent environment-friendly technology it can assure environmental progress while allowing at a given stage of technology the minimum amount of pollution necessary for economic growth.

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