Environmental law, policy, and economics reclaiming the environmental agenda

Reilly xxix1 The Nature and Origins of Environmental Contamination 1 5 Administrative Law: The Roles of Congress, the President, the Agencies, and the Courts in Shaping Environmental Pol

policy, and economics makes this book one of the most comprehensive, useful, and timelesstreatments on the subject to date.’’

—Jennifer Sass, Senior Scientist, Natural Resources Defense Council

‘‘This book is a timely and important contribution, written by authors who combine decades

of academic excellence with significant real life experiences It demonstrates the cutting edgepotential for law to become a policy tool that can drive sustainable innovation when applied

by knowledgeable and capable practitioners The vast and comprehensive scope is both broadand deep; the synthesis of complex interconnections is a welcome tour de force.’’

—Ted Smith, Founder and former Executive Director, Silicon Valley Toxics Coalition andCoordinator, International Campaign for Responsible Technology

‘‘This book explores not only the basic environmental pollution control laws but also, and offundamental importance, the ways in which these laws do or do not lead to cleaner produc-tion Its explanations of various concepts and legal tools will be useful to both students andpractitioners.’’

—John C Dernbach, Professor of Law, Widener University Law School

‘‘A comprehensive and invaluable compendium of two decades of scholarship and dence on the legal, social, and economic dimensions of pollution regulation, control, and pre-vention Written largely from an American perspective, the volume draws important lessonsfrom the comparative, European experience, as well.’’

jurispru-—David A Sonnenfeld, Professor and Chair, Department of Environmental Studies, SUNYCollege of Environmental Science and Forestry

‘‘Highly recommended for use both in the classroom and the law o‰ce It is not only a highlyuseful treatise on the field, but a convincing a‰rmation of the central role law plays in envi-ronmental protection.’’

—William Futrell, President, Sustainable Development Law Associates

Reclaiming the Environmental Agenda

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Library of Congress Cataloging-in-Publication Data

Ashford, Nicholas Askounes.

Environmental law, policy, and economics : reclaiming the environmental agenda / Nicholas A Ashford, Charles C Caldart.

p cm.

Includes bibliographical references and index.

ISBN 978-0-262-01238-6 (hardcover : alk paper) 1 Environmental law—United States 2 Environmental policy—United States I Caldart, Charles C II Title.

KF3775.A967 2007

344.7304 0 6—dc22

2007001995

10 9 8 7 6 5 4 3 2 1

Foreword by William K Reilly xxix

1 The Nature and Origins of Environmental Contamination 1

5 Administrative Law: The Roles of Congress, the President, the

Agencies, and the Courts in Shaping Environmental Policy 241

6 The Clean Air Act and the Regulation of Stationary Sources 343

7 The Regulation of Mobile Sources Under the Clean Air Act 461

8 Protection of Surface Waters, Wetlands, and Drinking Water: The

9 Regulation of Hazardous Wastes: RCRA, CERCLA, and Hazardous

10 The Right to Know: Mandatory Disclosure of Information Regarding

11 Enforcement: Encouraging Compliance with Environmental Statutes 807

12 Alternative Forms of Government Intervention to Promote Pollution

13 Policies to Promote Pollution Prevention and Inherent Safety 967

14 Epilogue—Beyond Pollution Control and Prevention: Sustainable

1 The Nature and Origins of Environmental Contamination 1

A The Nature of the Problem: Pollution and Accidental Releases of

Christiani, David C and Woodin, Mark A., ‘‘SpecificAir Pollutants Associated with Adverse RespiratoryE¤ects,’’ from Life Support: The Environment and

Hu, Howard and Kim, Nancy K., ‘‘Drinking-WaterPollution and Human Health,’’ from CriticalCondition: Human Health and the Environment,

Roe, David, et al., Environmental Defense Fund,

‘‘Executive Summary,’’ from Toxic Ignorance: TheContinuing Absence of Basic Health Testing forTop-Selling Chemicals in the United States (1997) 19

B The Causes of Pollution and Accidental Releases 21

1 Increases in the Production and Use of Chemicals, and

Changes in the Nature of Chemical Contamination 21

Commoner, Barry M., ‘‘A Reporter at Large: TheEnvironment,’’ The New Yorker, pp 46–71, June 15

2 Public Goods, the Tragedy of the Commons, and Free-Rider

Problems: The Destructiveness of Pursuing Narrow

Ru¤, Larry, ‘‘The Economic Common Sense ofPollution,’’ from Economics of the Environment,

Ashford, N and Heaton, G., ‘‘Environmental andSafety Regulation: Reasons for their Adoption andPossible E¤ects on Technological Innovation,’’

Environmental Policy and Law, vol 1, pp 171–172

Morgan, Granger, ‘‘Risk Management Should BeAbout E‰ciency and Equity,’’ from EnvironmentalScience & Technology, pp 32A–34A, January 1

C Pollution and Accident Control, Mitigation, and Prevention 41

E Beyond Pollution and Accident Control and Prevention:

A Life Cycle Analysis and the Biological Impact Pathway 45

Ashford, N A., Hattis, D B., Heaton, G R., Katz,

J I., Priest, W C and Zolt, E M., ‘‘Life CycleModels for the Production, Use, and Disposal ofChemicals,’’ from Evaluating Chemical Regulations:

Trade-o¤ Analysis and Impact Assessment forEnvironmental Decision Making, pp 19–25 (1980) 47

Ashford, N A., Hattis, D B., Heaton, G R., Katz,

J I., Priest,W C and Zolt, E M., ‘‘The BiologicalImpact Pathway,’’ from Evaluating ChemicalRegulations: Trade-o¤ Analysis and ImpactAssessment for Environmental Decision Making,

1 Classical Categorization: The Dose Makes the Poison 51

b Dose-E¤ect and Dose-Response Relationships 52

Ashford, N A., ‘‘Exposure to Toxic Materialsand Carcinogens,’’ from Crisis in the Workplace,

Ashford, N A., Hattis, D B., Heaton, G R., Katz,

J I., Priest, W C and Zolt, E M., ‘‘RelatingExposure to Damage,’’ from Evaluating ChemicalRegulations: Trade-o¤ Analysis and ImpactAssessment for Environmental Decision Making,

c Categorization of Health E¤ects Resulting from Exposures

Ashford, N A., Hattis, D B., Heaton, G R., Katz,

J I., Priest, W C and Zolt, E M., ‘‘Taxonomy ofBiological E¤ects with Di¤erent Dose-ResponseImplications,’’ from Evaluating Chemical Regulations:

Trade-o¤ Analysis and Impact Assessment forEnvironmental Decision Making, pp 5–27 to 5–31

b Low-Level Chemical Sensitivity 69

Ashford, Nicholas A., ‘‘Low-Level ChemicalSensitivity: Implications for Research and SocialPolicy,’’ from Toxicology and Industrial Health:

Special Issues on Multiple Chemical Sensitivity,15(3–4), pp 421–427, April–June (1999) 69

c Toxicant-Induced Loss of Tolerance: A New Theory of

Ashford, Nicholas A., and Miller, C S., ‘‘Low-LevelExposures to Chemicals Challenge Both Science andRegulatory Policy,’’ from Environmental Science andTechnology, pp 508A–509A, November (1998) 73

D The Basics (and Limitations) of Risk Assessment 77

Heyvaert, Veerle, ‘‘What Is Risk Assessment?,’’ fromReconceptualizing Risk Assessment, Reciel 8(2): 135–

Masters, G M., ‘‘Risk Assessment,’’ fromIntroduction to Environmental Engineering and

Heyvaert, Veerle, ‘‘[The] Trouble with RiskAssessment,’’ from Reconceptualizing RiskAssessment, Reciel 8(2): 135–143 (1999) 100

E Scientific Uncertainty, Values, and Implications for Policy: Can a

‘‘Safe’’ Level of Exposure be Unequivocally Determined? 121

Ashford, N A and Miller, C S., ‘‘Public PolicyResponse,’’ Environmental Science and Technology

D Economic E‰ciency and the Technological Dynamic 140

E The Use of Cost-Benefit Analysis as a Means of Evaluating and

Designing Options for Environmental Regulation 147

1 Problems in Estimating Environmental Policy Benefits 151

b Valuing Environmental Resources and Amenities 153

2 Problems in Estimating Environmental Policy Costs: Static

versus Dynamic Assumptions About Technological Responses 156

5 Misuses and Abuses of Cost-Benefit Analysis 163

7 Trade-o¤ Analysis as an Alternative to Cost-Benefit Analysis 168

F Prioritizing Environmental Problems Within and Among Di¤erent

1 Perceptual and Political Influences on Risk-Based Priority

2 The Inherent Nonuniformity in Priority Setting 171

G Law and Economics as Competing Frameworks for

Environmental Decision Making: The Polluter Pays Principle and

H Schools of Economic Discourse and Policy Formulation 180

4 Addressing Pollution Through the Tort System 189

1 The Common Law: Court-Made Law (and Policy) 190

2 The Relationship Between the Common Law and Statutory

4 Strict Liability for Abnormally Dangerous Activity 218

Beshada v Johns-Manville Products Corp., 447 A.2d

E The Technology-Forcing Potential of Tort Law 227

The T J Hooper 60 F.2d 737 (2d Cir 1932) 227

F Drawbacks to Using the Tort System as a Pollution Reduction

1 The Financial Investment Necessary to Mount a Credible Case 228

2 The Di‰culty in Moving Beyond Current Industry Practice 229

3 The Di‰culty in Proving Proximate Causation 230

4 The Di‰culty in Presenting ‘‘Novel’’ Scientific or Engineering

5 The Lengthy Delay Between Causation and Remedy 233

6 The Di‰culty in Securing an Injunction Against Ongoing

Boomer et al v Atlantic Cement Company, Inc, 26

5 Administrative Law: The Roles of Congress, the President, the

Agencies, and the Courts in Shaping Environmental Policy 241

A Questions to Consider when Analyzing a Regulatory Framework 242

B The Constitutional Basis for Health, Safety, and Environmental

g Statutory Amendment and Informal Controls 258

h Federal Regulatory Authority and the States 259

New York v United States, 505 U.S 144 (1992) 260

Schultz, William B and Vladeck, David C., ‘‘AnObstacle to Public Safety,’’ The Washington Post,

Ferguson, J H and McHenry, D E., ‘‘ConstitutionalCourts,’’ from The American System of Government,

from Yale Journal on Regulation 133 (1985) 288

Caldart, Charles C and Ashford, Nicholas A.,

‘‘Negotiation as a Means of Developing andImplementing Environmental and Occupational

Health and Safety Policy,’’ from HarvardEnvironmental Law Review 141 (1999) 296

D Citizen and Corporate Access to the Administrative Process 312

5 Monetary Limitations on the Availability of Review 320

6 Bypassing the Agency: Citizen Enforcement Through the

E The Role of the Courts in Reviewing Agency Decision Making 321

1 Five Judicial Limitations on Agency Authority 322

Motor Vehicle Manufacturers’ Association v StateFarm Mutual Automobile Insurance Company, 463

3 Judicial Review of Agency Decisions Not to Act 330

F Two General Environmental Mandates to Agencies: The National

Environmental Policy Act and the Endangered Species Act 331

6 The Clean Air Act and the Regulation of Stationary Sources 343

2 Structure and Overview of the Clean Air Act 347

B The National Ambient Air Quality Standards for Criteria

American Trucking Associations, Inc v

Environmental Protection Agency, 175 F.3d 1027

Environmental Protection Agency v AmericanTrucking Associations, Inc, 531 U.S 457 (2001) 389

Union Electric Co v Environmental Protection

ii What Is a ‘‘New’’ or ‘‘Major Modified’’ Source? 402

Portland Cement Association v Ruckelshaus, 486 F.2d

iii Alternative Standard-Setting Criteria 408

2 Additional Emission Standards Designed to Achieve or

Maintain Ambient Air Quality Standards: Nonattainment and

the Prevention of Significant Deterioration 410

ii Specific Requirements for Ozone, CO, and Particulates 412

b Nondegradation Policy (Prevention of Significant

c The Applicability of the Bubble Policy in Nonattainment

4 Acid Rain Controls and the SO2 Allowance Trading System 428

5 Emission Standards for Hazardous Air Pollutants 430

Natural Resources Defense Council, Inc v

Environmental Protection Agency, 824 F.2d 1146

i Designation of Specific Hazardous Air Pollutants 443

ii Distinguishing Between ‘‘Major’’ and ‘‘Area’’ Sources 444

National Mining Association v EnvironmentalProtection Agency, 59 F.3d 1351 (D.C Cir 1995) 444iii Specific Emission Standards According to a Specified

v Reporting and Prevention of Accidental Chemical

6 Enforcement and the Title VI Operating Permits 456

7 The Regulation of Mobile Sources Under the Clean Air Act 461

C The Emergence of Air Pollution Legislation for Mobile Sources 468

1 Emission Standards for New Motor Vehicles 471

International Harvester Co., et al., v EnvironmentalProtection Agency, 478 F.2d 615 (D.C Cir 1973) 473

Natural Resources Defense Council v EnvironmentalProtection Agency, 655 F.2d 318 (D.C Cir 1981) 491

c Federal Preemption (and the California Exception) 503

2 Regulation of Fuel Content—Product Ban as Technology

2 Tier II Standards—Uniform Standards for Light-Duty Cars,

5 Diesel Sulfur, Heavy-Duty Engine, Heavy-Duty Vehicle Rule 536

F Regulation of Fuel E‰ciency 541

Massachusetts, et al v Environmental Protection

H Beyond the Traditional Internal Combustion Engine 568

8 Protection of Surface Waters, Wetlands, and Drinking Water: The

Clean Water Act and the Safe Drinking Water Act 579

A The Clean Water Act: Regulation of Point Source Discharges of

Pollutants to Surface Waters, Wetlands, and Sewage Treatment

1 The History and Development of the Federal Regulations 582

a The 1972 Federal Water Pollution Control Act

ii The Absolute Prohibition Against Nonconforming

iii Broad (but Shrinking?) Definition of Navigable Waters 587

Rapanos v United States, 126 S.Ct 2208 (2006) 588

iv The National Pollutant Discharge Elimination System

vii Technology-Based E¿uent Limitations and Public

Financing for Public Sewage Treatment Plants 607viii Federal Pretreatment Standards for Discharges into

ix Ambient Water Quality Standards Set by the States 608

xi A Strong Emphasis on Public Participation 609xii State Involvement in Implementation and Enforcement 611

i The Division of Pollutants into Three Categories 612

ii Technology-Based E¿uent Limits for Toxic Pollutants 613

Wyche, Bradford W., ‘‘The Regulation of ToxicPollutants Under the Clean Water Act: EPA’s Ten-Year Rulemaking Nears Completion,’’ from 15Natural Resources Lawyer 511 (1983) 614

i A Renewed Emphasis on Water Quality-Based

2 The Technology-Based E¿uent Limitations in Detail 620

a Industrial Source Limitations in General 621

Dupont v Train, 430 U.S 112 (1977) 621

EPA v National Crushed Stone Association, 449 U.S

b First-Tier Limitations for Existing Sources: BPT 643

c Second-Tier Limitations for Existing Sources: BCT and BAT 643

e Limitations for Public Sewage Treatment Plants 648

a The State and Federal Roles in Setting and Revising

b The Mechanics of Establishing Water Quality Standards 650

c Translating Ambient Standards into E¿uent Limitations 653

ii The Section 304(l) Program for ‘‘Toxic Hot Spots’’ 655iii The Mechanics of Establishing Water Quality-Based

6 Limitations on Discharges to Public Sewage Treatment Plants 661

7 Regulation of Toxic Chemicals in Sewage Sludge 664

B The Clean Water Act: Protection of Surface Waters and Wetlands

C The Clean Water Act: Protection of Surface Waters and Wetlands

from the Discharge of Dredged and Fill Material 668

2 The Application of the Section 404 Program to Wetlands 671

D The Protection of Public Water Systems: The Safe Drinking

1 The City of New Orleans and the Origins of the Safe Drinking

b Federal Standards: Primary and Secondary Drinking Water

e Regulation of Underground Injection Wells 681

3 The 1986 Amendments: Mandating the Maximum

Natural Resources Defense Council v EPA, 824 F.2d

9 Regulation of Hazardous Wastes: RCRA, CERCLA, and Hazardous

1 Nowhere to Hide: The Relationship Between Hazardous Waste

2 Activist Suburbs: The Revitalization of the Environmental

Movement and the Resulting Di‰culty in Siting Hazardous

Waste Treatment, Storage, and Disposal Facilities 696

3 The ‘‘Breakthrough’’ that Wasn’t: Constitutional Limitations

on Local Control of Hazardous Waste Shipment and

1 The History and Development of the Federal Regulations 708

2 The Broad Impact: A Federal ‘‘Tax’’ on Hazardous Waste

iii RCRA Definition Waste 714

v Ash Generated by Municipal Solid Waste Incinerators 714

City of Chicago v Environmental Defense Fund, 511

4 The ‘‘Cradle-to-Grave’’ System for Hazardous Waste 720

5 The ‘‘Land Ban’’ and the Hazardous Waste Treatment

American Petroleum Institute v United States EPA,

6 Standards for Hazardous Waste Incinerators 738

10 The Citizen Suit and Imminent and Substantial Endangerment

Dague v City of Burlington, 935 F.2d 1343 (2d Cir

C The Comprehensive Environmental Response, Compensation, and

1 Looking Both Ways: The Policy Impact of CERCLA 749

2 The President’s Authority to Take, Order, or Contract for the

Performance of Cleanup Action under CERCLA 751

4 The Nature of Response Actions Under CERCLA 754

6 The Liability of Responsible Parties to Pay the Cost of

U.S v Hercules, Inc., 247 F.3d 706 (8th Cir 2001) 762

7 The Special Program for Remediating Federal Facilities 767

8 The Search for Innovative Cleanup Technologies 767

9 The Liability of Responsible Parties to Pay for Damage to

11 Monetary Damages for Personal Injury and Damage to

10 The Right to Know: Mandatory Disclosure of Information Regarding

2 Chemical Release Reporting Under the TRI Program 784

C Community Right to Know as a Spur to Risk Reduction 788

Karkkainen, Bradley C., ‘‘Information asEnvironmental Regulation: TRI and PerformanceBenchmarking, Precursor to a New Paradigm?,’’

11 Enforcement: Encouraging Compliance with Environmental Statutes 807

B Theories of Enforcement: Compliance, Deterrence, and

D Enforcement in Practice: The Proverbial Nuts and Bolts 810

1 Monitoring, Reporting, and Record-Keeping Requirements 810

Marshall v Barlow’s Inc., 436 U.S 307 (1978) 810

Weinberger, Secretary of Defense, et al v Barcelo et al., 456 U.S 305 (1982) 816

Romero-
United States Public Interest Research Group, et al

v Atlantic Salmon of Maine, LLC, et al., 339 F.3d 23

6 Enforcement Actions Against the Government 838

E The Special Rules Governing Citizen Enforcement 838

1 Article III Principles: Standing and Mootness 838

Gwaltney of Smithfield, Ltd v Chesapeake BayFoundation, Inc., et al., 484 U.S 49 (1987) 841

Friends of the Earth, Inc., et al v LaidlawEnvironmental Services (TOC), Inc., 528 U.S 167

2 The Relationship between Citizen Enforcement and

3 Strategic Lawsuits Against Public Participation (SLAPP Suits) 876

12 Alternative Forms of Government Intervention to Promote Pollution

Ashford, Nicholas A., Ayers, Christine and Stone,Robert F., ‘‘Using Regulation to Change the Marketfor Innovation,’’ from Harvard Environmental Law

B Indirect Controls I: ‘‘Negative’’ Incentives 891

d History, Evidence, and Analysis of E¤ectiveness of

Burtraw, Dallas and Mansur, ‘‘Environmental E¤ects

of SO2Trading and Banking,’’ Environmental Scienceand Technology 33(20): 3489–3494 (1999) 905

Ellerman, A Denny, ‘‘Are Cap and Trade ProgramsMore E¤ective in Meeting Environmental Goals than

Command-and-Control Alternatives?,’’ CharlesKolstad and Jody Freeman (eds.), pp 48–62 (2006) 907

C Indirect Controls II: ‘‘Positive’’ Incentives 913

2 The Coordination of Tax Policy and Environmental Policy 916

3 Other ‘‘Positive’’ Instruments: Information Sharing, Technical

Assistance, and Government Purchasing Practices 917

Environmental Protection Agency, ‘‘EnvironmentallyPreferable Purchasing Program,’’ EPA Report 742-R-

Ashford, Nicholas A and Stone, Robert F.,

‘‘Liability, Innovation, and Safety in the ChemicalIndustry,’’ from The Liability Maze, pp 392–402

E ‘‘Voluntary’’ Initiatives and Negotiation-Based Strategies 927

Carraro, Carlo and Leveque, Francois, ‘‘TheRationale and Potential of Voluntary Approaches,’’

from Voluntary Approaches in Environmental Policy,

a Self-Enforcement, Environmental Management Systems,

Gouldson, A and Murphy, J., ‘‘VoluntaryRegulation and the European Union’s Eco-Management and Audit System,’’ from Regulatory

Ashford, N A., and Caldart, Charles C.,

‘‘Negotiated Regulation, Implementation and

Compliance in the United States,’’ from TheHandbook of Voluntary Agreements, pp 135–159

Caldart, Charles C and Ashford, N A.,

‘‘Negotiation as a Means of Developing andImplementing Environmental and OccupationalHealth and Safety Policy,’’ from HarvardEnvironmental Law Review 141 (1999) 953

13 Policies to Promote Pollution Prevention and Inherent Safety 967

1 The Limits of Traditional Pollution Control and the

Strasser, Kurt, ‘‘Cleaner Technology, PollutionPrevention and Environmental Regulation,’’ Fordham

2 The Winds of Change: Dissatisfaction with End-of-Pipe

Ashford, N A., ‘‘Pollution Prevention: A New Ethic

or New Rhetoric?,’’ from Environmental Strategiesfor Industry: International Perspectives on ResearchNeeds and Policy Implications, pp 277–307 (1993) 976

3 Industrial Ecology as a Competing Paradigm to Pollution

Oldenburg, K and Geiser, K ‘‘Pollution Preventionand or Industrial Ecology?,’’ from Journal ofCleaner Production 5(2): 103–108 (1997) 978

B Chemical Accident Prevention and Its Relationship to Pollution

Ashford, Nicholas A., Gobbell, James Victor,Lachman, Judith, Matthiesen, Minzner, Mary Annand Stone, Robert, ‘‘The Encouragement ofTechnological Change for Preventing ChemicalAccidents: Moving Firms from Secondary Preventionand Mitigation to Primary Prevention,’’ Report tothe U.S Environmental Protection Agency, Centerfor Technology, Policy and Industrial Development

2 Chemical Safety and Accident Prevention: Inherent Safety and

Ashford, Nicholas A and Zwetsloot, Gerard,

‘‘Encouraging Inherently Safer Production inEuropean Firms: A Report from the Field,’’ Journal

of Hazardous Materials, 78(1–3): 123–144 (1999) 999

3 The Enhanced Need for Inherent Safety after 9/11 1005

C Moving from Characterizing Problems and Assessing Risk to

3 The European Experience: The Cleaner Technology Movement

D U.S and European Union Legislation Focusing on Pollution and

2 The Chemical Safety Provisions of the Clean Air Act 1017

b OSHA’s Process Safety Management Standard 1019

3 The Massachusetts Toxics Use Reduction Act 1021

Karkkainen, Bradley C., ‘‘Information asEnvironmental Regulation: TRI and PerformanceBenchmarking, Precursor to a New Paradigm?,’’

Coglianese, Cary and Nash, Jennnifer, ‘‘PolicyOptions for Improving Environmental Management,’’

4 Coordinating Accident Prevention with Pollution Prevention 1027

a The Integrated Pollution Prevention and Control Directive 1028

E Using Traditional Environmental Statutes to Encourage Pollution

Caldart, Charles C and Ashford, Nicholas A.,

‘‘Negotiation as a Means of Developing andImplementing Environmental and OccupationalHealth and Safety Policy,’’ Harvard Environmental

14 Epilogue—Beyond Pollution Control and Prevention: Sustainable

B Conceptualizations of Sustainable Development 1046

C Incremental Change by Incumbent Firms Is Inadequate for

As a country, we have made substantial progress in cleaning up the environment,thanks to an ambitious statutory framework, impressive contributions by states,municipalities, and the private sector, and most importantly by the American public’sunwavering support for clean air and water And yet, we face a daunting array ofchallenges The environment continues to be degraded by toxic chemicals such

as pesticides, heavy metals, and synthetic organic compounds We continue to losewetlands, wildlife habitat, and other productive natural resources to development.Demand has exploded for clean water for all its many purposes, in some places out-stripping available supplies, as population and economic activity increase We arenotoriously ine‰cient in the way we use both water and energy Numerous fisheriesare excessively harvested or depleted, and coastal estuaries and waterways aredegraded by runo¤ from sources of pollution dispersed across the landscape Mostobvious today is the threat of global climate change; as more greenhouse gases arepumped into the atmosphere, leading scientists report we may have reached, or beclose to reaching, a ‘‘tipping point’’ that requires urgent action

What is clear from this sampling of environmental concerns is that, ing the progress we have made, we have not yet fulfilled the promise of a clean,healthy environment for all Americans envisioned when President Nixon created theEnvironmental Protection Agency in 1970

notwithstand-Is it time to rethink the roles and strategies of government and the private sector insafeguarding public health and the environment? Taking the twin pillars of regula-tion and enforcement as a foundation, tackling the challenges of global climatechange and toxic pollution requires more of us to fashion nonpartisan solutions thatenlist the creativity and entrepreneurial spirit of Americans Technology, whichhas contributed to past problems, must be employed to reverse current energy andpollution trends, as they pose a clear risk to all of us This requires the intelligentuse of legal and economic tools to create appropriate incentives for those engaged

in industry, agriculture, transportation, and business—as well as for consumers, andcitizens generally—for we have learned over more than 30 years in this endeavor that

environmental protection is by no means the exclusive province of EPA Rather, wehave to build the concern into all aspects of our economic and community life if

we are to achieve a safe, healthy environment

We need far more attention devoted to the means by which we can stimulate anddeploy new, more environmentally sustainable technologies We need to harnessmarket forces on behalf of the environment More and more companies are learningthat improving e‰ciency and cutting waste pays o¤—in their bottom line Ulti-mately, we need to reconcile consumer demand with the growing awareness of itsimpacts on a finite and, it seems, increasingly vulnerable planet

Environmental Law, Policy, and Economics provides a valuable foundation forconstructing multifaceted approaches to nonpartisan environmentalism It o¤ers, inone place, grounding in environmental science, economics, law, and policy Theauthors examine the relative e¤ectiveness of law and economics, including the emer-gence of information, or right-to-know, tools for addressing environmental chal-lenges and spurring technological advancement The book’s subtitle, Reclaiming theEnvironmental Agenda, could well be its title My hope is that this work will help pro-vide the basis for renewing our commitment to environmental health in step with amodern industrial society Our future may well depend on our ability to embrace aparadigm shift to sustainable development, in other words, to a model of economicprosperity that respects the essential contribution of the natural systems on which allhuman activities depend

William K Reilly

Administrator,

Environmental Protection Agency, 1989–1993

The authors are grateful to the Department of Civil and Environmental Engineeringand the School of Engineering at MIT, both of which supported the teaching of thecourse upon which this text is based We are also thankful for financial support fromthe Bernard Gordon Curriculum Development Fund and from the Bauman Founda-tion We thank Robert F Stone for his contributions to the writing of chapters 3 and

12, Simon Mui for his contributions to the writing of chapter 7, and Dale B Hattisand Claire Franklin for their insightful comments and feedback on chapter 2 Wealso wish to thank Chris Mascara and Rita Adom for their assistance in the prepara-tion of the manuscript, and Elizabeth Milnes for assistance in obtaining copyrightclearance We are especially grateful to Androniki A Ashford for a creative coverdesign Finally, we extend a special thanks to the hundreds of exceptional students

it has been our privilege to teach in law and policy courses at MIT; their inspirationand feedback have been invaluable

This text on environmental law, policy, and economics grows out of courses taught

by the authors at the Massachusetts Institute of Technology over the past 25 years.During that period, there has been a significant evolution in environmental policy.New environmental legislation has been added at the federal level, and older environ-mental legislation has been substantially reshaped by congressional amendments.There has also been a significant evolution in environmental science, and in the treat-ment of science (and scientific uncertainty) by the courts

The concept of the cost-benefit analysis as an overriding normative principle hasgained a firm foothold in both congressional and judicial thought, and it does peri-odic battle with the equally powerful notion that ‘‘technology forcing’’ is a legitimatefunction of environmental law Increased citizen participation—in both legal and po-litical processes—has been a focus of federal environmental legislation, and this hasborne considerable fruit at the federal, state, and local levels Yet, despite increasedpublic involvement in environmental policy (or perhaps because of it), environmentallaw is under attack in several quarters

Traditional (so-called command-and-control) legislative approaches are alleged to

be increasingly ine¤ective and fragmented, and many argue that mandatory styles ofgovernance should give way to—or at least be heavily influenced by—negotiatedstakeholder processes So-called end-of-pipe approaches for pollution control arenow less favored than preventing pollution at the source, but analysts disagree as towhether regulations or economic incentives provide a more e¤ective pathway to thisend Some argue that the polluting industry itself is in the best position to come upwith the appropriate solutions, and that incentives should be structured accordingly,while others argue that many incumbent industries and products ought to be replacedwith more sustainable ones Finally, there appears to be an increased willingness inthe federal courts to second guess (albeit often implicitly) the policy choices made byCongress, which makes environmental law more unpredictable than it would other-wise be

One of the authors (NAA) brings to this treatise both a knowledge of, andinvolvement in, European approaches to environmental challenges and a long his-tory of inter-country comparative research on the e¤ects of regulation on techno-logical change The other author (CCC) brings years of experience in litigatingviolations of environmental statutes and regulations, and in the creative use of thelaw to protect citizens, workers, and consumers.

This work includes what might be found in a traditional course in environmentallaw and policy: common law and administrative law concepts; the standard air,water, and waste statutes; the Pollution Prevention Act; the National EnvironmentalPolicy Act; and the Endangered Species Act We also include a chapter on enforce-ment Beyond these more traditional topics, we also address the information-basedobligations of industry (such as ‘‘right-to-know’’ laws), and the problems presented

by sudden and accidental chemical releases of chemicals (which require di¤erentapproaches from those focused on the gradual release of pollution) In addition, weinclude chapters on environmental economics and market-based and voluntary alter-natives to traditional regulation Finally, because we believe that an appreciation ofthe basics of environmental science and risk assessment, and a familiarity with theprocesses of technological innovation and di¤usion, are essential complements tothe understanding of legal concepts, we explore these topics as well

The text focuses on pollution rather than energy, and addresses both pollutioncontrol and pollution prevention (what the Europeans call cleaner and inherentlysafer production) Perhaps the most distinguishing characteristic of the volume is itsemphasis on the evaluation, design, and use of the law to stimulate technologicalchange and industrial transformation, rather than to merely control pollution Weargue that the law can be used to implement an ‘‘industrial policy for the environ-ment’’ and that beyond changes in industrial inputs, products, and processes, there

is a need to address broader issues of sustainable development, which will involvethe shift from products to product services, and further to larger system changes

As the subtitle of the text—Reclaiming the Environmental Agenda—implies, wedepart from those environmental law, environmental policy, and environmental eco-nomics texts that argue for a reduced role for government The environmental record

of the past 35 years suggests there is much to be gained when government providesclear, stringent legal requirements for environmental improvements and for tech-nological transformations, although these requirements must be coupled both withflexible means to achieve environmental targets and with meaningful stakeholderparticipation

The text is meant to provide a broad and detailed discussion of the most currentpressing issues in environmental law, policy, and economics for the general reader,and to provide in one volume material for undergraduate and graduate-level coursestaught in law, business, and public policy schools; schools of public health; and in

departments of urban studies, civil and environmental engineering, environmentalsciences, chemical engineering, chemistry, and economics There is more material inthis text than would ordinarily be taught in one semester The material could easilyspan a two-semester—or two- or three-quarter—sequence of courses Because of thebroad expanse of the materials and their stand-alone nature, the instructor teaching aone-semester or one-quarter course could easily select only some of the regulatorysystems—for example air and water pollution or waste—coupled with the tutorials

on right to know and/or pollution prevention and/or tort and/or science and/oreconomics

Because of the lengthy nature of this treatise, we have included very little statutorymaterial in the text itself The reader is encouraged to read selected statutory lan-guage provided at the website: http://mitpress.mit.edu/ashford_environmental_law.That website will also contain updated material considered essential for keepingabreast of the developing environmental law and policy, such as new cases andcommentary

A The Nature of the Problem: Pollution and the Accidental Release of Chemicalsinto the Environment

B The Causes of Pollution and Accidental Releases

1 Increases in the Production and Use of Chemicals, and Changes in the Nature

C Pollution and Accident Control, Mitigation, and Prevention

D The Focus of Traditional Environmental Law

E Beyond Pollution and Accident Control and Prevention: Sustainable Productionand Products

In this introductory chapter, we address the origin and causes of pollution and dental releases of chemicals into the environment We distinguish the expectedby-products of industrial production, transportation, and consumption—sometimescalled gradual pollution—from the unintentional or unexpected (and sometimes sud-den) accidental release of chemicals and energy associated with industrial spills,explosions, and fires Of course, sudden and/or accidental releases may take time topermeate soil and water (or air), but the initial loss of control of toxic materials is thecharacterizing element that society seeks to eliminate or minimize Environmental lawaddresses both types of pollution, traditionally focusing on the control of pollutionand accidental releases, on mitigation (environmental cleanup and injury prevention),and to a lesser extent on primary prevention that eliminates or dramatically reduces,

acci-at the source, the probability of releases thacci-at could cause harm to human health andthe environment.

A THE NATURE OF THE PROBLEM: POLLUTION AND THE

ACCIDENTAL RELEASE OF CHEMICALS INTO THE ENVIRONMENT

Figure 1.1 is a pictorial representation of the stages (life cycle) of a polluting try, indicating sources of air, water, and waste associated with related productionprocesses and products Pollution control is traditionally focused on the wastestreams emanating from the facility or from product use and disposal, while pollu-tion prevention is centered within the production or manufacturing facility Allstages, from production to disposal, can contribute directly or indirectly to pollutionand contamination

indus-The chemicals released into the environment during this industrial life cycle come

in a variety of forms, and cause or contribute to a variety of known and potentialharms The following three excerpts discuss some of the more important humanhealth problems emanating from pollution of the air, of drinking water, and ofthe food supply, and some of the more important chemicals associated with suchpollution

Figure 1.1

Stages of production leading to chemical exposure.

Specific Air Pollutants Associated with Adverse Respiratory E¤ects

David C Christiani and Mark A Woodin

Source: ‘‘Urban and Transboundary Air Pollution,’’ in Michael McCally (ed.), Life Support:The Environment and Human Health MIT Press, Cambridge, Mass., 2002, pp 15–37,excerpted with permission

Several major types of air pollution are

currently recognized to cause adverse

respira-tory health e¤ects: sulfur oxides and acidic

particulate complexes, photochemical

oxi-dants, and a miscellaneous category of

pollut-ants arising from industrial sources

SULFUR DIOXIDE AND ACIDIC

AEROSOLS

Sulfur dioxide (SO2) is produced by the

com-bustion of sulfur contained in fossil fuels,

such as coal and crude oil Therefore, the

ma-jor sources of environmental pollution with

sulfur dioxide are electric power generating

plants, oil refineries, and smelters Some fuels,

such as ‘‘soft’’ coal, are particularly

sulfur-rich This has profound implications for

nations such as China, which possesses 12

percent of the world’s bituminous coal

reserves and depends mainly on coal for

elec-tric power generation, steam, heating, and (in

many regions) household cooking fuel

Sulfur dioxide is a clear, highly

water-soluble gas, so it is e¤ectively absorbed by

the mucous membranes of the upper airways,

with a much smaller proportion reaching the

distal regions of the lung The sulfur dioxide

released into the atmosphere does not remain

gaseous It undergoes chemical reaction with

water, metals, and other pollutants to form

aerosols Statutory regulations promulgated

in the early 1970s by the U.S Environmental

Protection Agency (EPA) under the Clean

Air Act resulted in significant reductions in

levels of SO2and particulates However, local

reductions in pollution were often achieved by

the use of tall stacks, particularly for power

plants This resulted in the pollutants being

emitted high into the atmosphere, where

pro-longed residence time allowed their mation into acid aerosols These particulateaerosols vary in composition from area toarea, but the most common pollutants result-ing from this atmospheric reaction are sul-furic acid, metallic acids, and ammoniumsulfates Sulfur dioxide, therefore, togetherwith other products of fossil-fuel combustion(e.g., soot, fly ash, silicates, metallic oxides)forms the heavy urban pollution that typifiedold London, many cities in developing na-tions today that mainly burn coal, and basinregions in the United States, such as in areas

transfor-of Utah where there are coal-burning plants

In addition to this smog—a descriptiveterm generically referring to the visiblycloudy combination of smoke and fog—anacidic aerosol is formed that has been shown

to induce asthmatic responses in both adultsand children [B]oth epidemiological andcontrolled human studies have demonstratedremarkable sensitivity of persons with asthmawhile exercising to the bronchoconstrictivee¤ects of acidic aerosols Several studies havealso linked exposure to acidic aerosols andmortality, documenting an increase in deaths

of persons with underlying chronic heart andlung disease who had been exposed Finally,acidic aerosols result in ‘‘acid rain,’’ whichmay threaten aquatic life

PARTICULATES

Particulate air pollution is closely related to

SO2 and aerosols The term usually refers

to particles suspended in the air after variousforms of combustion or other industrial activ-ity In the epidemics noted earlier, the airpollution was characterized by high levels ofparticulates, sulfur dioxide, and moisture