Midterms Reviewer Flashcards
(52 cards)
Why is environmental law so difficult?
- Scarcity
- conflict in use; nature of scarcity depends on the type of resources - Clash of values among competing interests
- Biocentrism
- Anthropocentrism
- Intergenerational equity
Type of Resource
- Extractive
a. Non renewable - coal, oil, copper (limited availability)
b. Renewable - fish, timber, soil, groundwater (rate of extraction must not threaten renewability) - Ecosystem services (not extracted or harvested but no value in the commercial market and hence, ignored)
- pollination, water purification, flood control, climate stability - Aesthetic/Spiritual (congestion)
- scenic vistas, Mt. Mayon
(Nature of Scarcity)
Challenges on each type of resource
- Extractive, non renewable: HOW TO ALLOCATE
- Extractive, renewable: HOW TO LIMIT EXTRACTION, ENSURE SUSTAINABILITY
- Ecosystem services: HOW TO VALUE
- Aesthetic/Spiritual: HOW TO REGULATE ACCESS EQUITABLY
Problem of the Commons/Tragedy of the Commons
1968 by Garrett Hardin
Ex: grazing in public land
One cow uses a particular area of land for grass consumption. More and more come because ooh resources. Pag dumami lahat and nakitang shet nauubos na resources. One would think need nya imaximize use nya kasi if hindi, imamaximize ng iba ang mauubusan sya and his sacrifice will mean nothing and he will end up losing more. Eh kung mag-agree naman sila na ilimit yung use, pano sila nakakasigurado na walang ibang outsider na mananamantala nung area?
In this situation, what would appear to be the logical thing to do for the individual would be illogical from the collective’s point of view. Yet this would be the normal course of each individual.
The difficulty of collective action and free riders
- collective
- who? how?
- transaction costs
Some basic themes of environmental law
- Scientific uncertainty
- we will never fully understand and control nature
- choices remain vague because there is uncertainty
- 2 basic strategies to address this problem: a) develop better information; b) precautionary principle - Market failures
- happens when the price mechanism fails to allocate scarce resources efficiently or when the operation of market forces lead to a net social welfare loss
- environmental problems are modeled as market failures using either of the following theories: a) public goods b) externalities - Mismatched scales
- political and economic scales do not match the scales of environmental action
- political boundaries define who will spend but the benefits would accrue to even those beyond those boundaries
- same is true with time; generation spending will not be the only one to be benefitted - Cognitive Biases
- we will never run out of fishes
- God will always provide (overpopulation is not a problem)
- only a dew people believe that they are to blame for environmental problems - Protected interests
- environmental protection inevitably causes a clash of competing interests
- unfortunately not all involved in the conflict have someone to protect it
- who will protect the interests of wildlife or parks?
- Who will protect interests of future generations?
Regulatory Tools in Environmental Law
6Ps
- Property Rights
- Prescriptive Regulation (Command and Control)
- Property Rights and Prescriptive Regulation Hybrid
- Permits Trading
- Penalties (Internalizing Externalities)
- Payments
- Public Disclosure and Persuasion
Explain property rights as regulatory tool
Approach: take away public access to the resources and privatize it or create ownership rights
Premise: people will take better care of their private property
Applied to problem of the commons:
Use will be limited to the owners.
Can be used in regulating fishing»_space; limited people to exercise fishing rights»_space; fishermen will not be pressured into getting as much as they can»_space; overfishing can be prevented by pre-determined fishing quotas
Challenges:
How to allocate the resources? Who gets what, and why?
How to exclude others from common resource?
What to do when efficiency conflicts with social goals?
Explain prescriptive regulation (command and control) as regulatory tool
Approach: Regulators direct behavior of regulated party
Premise: Regulators know best, has the most accurate information, will not give in to pressure groups or politics and has the monitoring and enforcement capacity
Applied to the problem of the commons:
Regulators determine, based on available science the carrying capacity of the land
All grazers are then required to abide by the grazing limit and other rules
All those who violate prohibition will be punished
Challenges:
Premises not true in the Philippines
Regulators do not know best; have no information
Regulators subject to pressures, political or otherwise
No monitoring and enforcement capacity
Provides no incentive for going beyond the limits they set
They offer limited flexibility on where and how to reduce pollution
They often have politically-motivated loopholes
Explain property rights and prescriptive regulation hybrid as regulatory tool
Permits trading
Approach: Create property rights, prescribe regulations, create market
- maximum emissions per installation set
- owners of emission permits can trade
- the ownership of rights and the privilege to trade gives the incentives to develop new techology
Explain penalties (internalizing externalities) as regulatory tool
Approach: Makes the polluters/destroyers absorb the environmental costs
Premise: If actual costs to the environment are passed on to those who will degrade it, they will avoid degrading the environment
As applied to the commons:
Each grazer will be taxed equivalent to his/her share in the cost of damage to the environment
They may graze as much as they want but they will have to pay the taxes
Challenges:
Calculating costs to the environment (value of ecosystem services)
Mismatched scales and the resulting “race to the bottom”
Enforcement and monitoring capacity
Explain payments as regulatory tool
Approach: Pay/reward environmentally friendly behavior
Premise: If environmentally friendly practices are rewarded in an amount more than an individual can earn from overusing the resources, environmentally friendly behavior can be shaped
As applied to the commons:
Grazers who limit their animals to a definite number will get government subsidies
As a result, there will be more incentive not to overuse the grazing field as revenues will be “guaranteed”
May also be applied to air pollution:
Government subsidizes those who do not use coal fired power or those who use electric cars
Challenges:
Where would the government source the funds to subsidize particular groups?
Possible conflict with socio-economic objectives
How to choose which activities to subsidize and once chosen, how to prioritize?
Explain public disclosure and persuasion as regulatory tool
Approach: Make the public themselves choose to be environmentally friendly by educating them and giving them direct access to relevant information
Premise: An educated and informed citizenry will decide to do what is best
As applied to the commons:
All grazers/shepherds will be required to report the number of sheep they bring
Those who “abuse” the commons will be known to everyone, based on the info
With an educated public informed of “abusers,” consumers will reject products of the abusers
Challenges:
Economic needs/social pressure may outweigh “intelligent choices” in day to day decision-making
Monitoring labels and information that may mislead the public
Scientific uncertainty
Seeds of Environmental Degradation
- Philippines itself
- megadiversity country
- extensive water resources
- coral triangle
- pacific ring of fire - Dependence on Natural Resource Extraction
- Early History
- Communities were led by Datus but resources were collectively owned - Spanish Arrival
- Encomienda system was established - American Period
- cultivated and spotted class of former village chiefs under the Spanish regime - Independence
- the elite classes who owned land and were strengthened - Martial Law
- one faction of the elite class emerged
- control over resources was further monopolized - Post-EDSA Revolution
- did very little to address the centuries old highly inequitable distribution of wealth between the rich and the poor
Development at the expense of the environment
- The elite has always emphasized agricultural intensification
- over-utilization of agricultural lands
- soil degradation - Export led industrialization energy
- creation of special economic zones
- conversion of prime agricultural lands
The Philippines a biodiversity hotspot The problem of solid waste disposal Fresh water availability Air pollution Coral reefs Mangroves
Philippine Environmental Impact Statement System
Main Objective: to require every project proponent to take the environment into consideration in the implementation of its project in order to provide adequate protection to the environment or at least minimize the project’s potential negative impacts
PD 1151 passed in 1979 - required all agencies and instrumentalities of the national government, including government-owned or controlled corporations, as well as private corporations, firms, and entities, to prepare, file and include an Environmental Impact Statement (EIS) in every action, project or undertaking which significantly affects the quality of the environment.
PD 1586 established the EIS System, which provided a systems-oriented and integrated approach to the filing of the EIS in coordination with the whole environmental protection program of the State.
US National Environmental Policy Act of 1969
Sec. 102 (2)(c) of NEPA provided that an environmental impact statement (EIS) is to include: in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on:
i. the environmental impact of the proposed action
ii. any adverse environmental effects which cannot be avoided should the proposal be implemented
iii. alternatives to the proposed action
iv. the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
v. any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented
What are included in the PEISS
a. the environmental impact of the proposed action, project or undertaking
b. any adverse environmental effect which cannot be avoided should the proposal be implemented
c. alternative to the proposed action
d. a determination that the short-term uses of the resources of the environment are consistent with the maintenance and enhancement of the long-term productivity of the same
e. whenever a proposal involves the use of depletable or non-renewable resources, a finding must be made that such use and commitment are warranted
Calvert Cliffs Coordinating Committee vs. US Atomic Energy Commission
Policy: use all practicable means and measures to protect environmental values
Environmental protection was not the exclusive goal»_space; reordering of priorities so that environmental costs and benefits will assume their proper place along with other considerations
agencies must use a “systematic, interdisciplinary approach” to environmental planning and evaluation “in decision making which may have an impact on man’s environment”
Environmental amenities will often be in conflict with ________________
economic and technical considerations
To consider the former along with the latter must involve a balancing process.
NEPA mandates a systematic balancing analysis.
Balancing analysis
responsible officials of all agencies shall prepare a detailed statement covering the impact of particular actions on the environment, the environmental costs which might be avoided, and alternative measures which might alter the cost-benefit equation
Purpose: to aid in the agencies’ own decision making process and to advise other interested agencies and the public of the environmental consequences of planned federal action.
all agencies must study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources
Purpose: to see all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance
Baltimore G & E Co. v. NRDC
Twin aims of NEPA
Zero release assumption
Not duty of the court to determine whether the right decision was arrived at but rather WON the agency complied with NEPA
Twin aims of NEPA
- it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action
- it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision-making process
Strycker’s Bay Neighborhood Council v. Karlen
NEPA imposes upon agencies duties that are essentially procedural.
