basic themes in environmental law

IBASIC THEMES INENVIRONMENTAL LAW

It suddenly struck me that that tiny pea, pretty and blue, was the Earth. I put up my thumb and shut oneeye, and my thumb blotted out the planet Earth. I didn’t feel like a giant. I felt very, very small.

— Astronaut Neil Armstrong

The first day, we pointed to our countries. Then we were pointing to our continents. By the fifth day wewere aware of only one Earth.

— Astronaut Bin Salmon al-Saud, Saudi Arabia

For the first time in my life I saw the horizon as a curved line. It was accentuated by a thin seam of darkblue light—our atmosphere. Obviously this was not the ocean of air I had been told it was so many timesin my life. I was terrified by its fragile appearance.

— Ulf Merbold, Federal Republic of Germany

Looking outward to the blackness of space, sprinkled with the glory of a universe of lights, I saw majesty— but no welcome. Below was a welcoming planet. There, contained in the thin, moving, incrediblyfragile shell of the biosphere is everything that is dear to you, all the human drama and comedy. That’swhere life is; that’s where all the good stuff is.

— Loren Acton, USA

A Chinese tale tells of some men sent to harm a young girl who, upon seeing her beauty, become her pro-tectors rather than her violators. That’s how I felt seeing the Earth for the first time. “I could not helpbut love and cherish her.”

— Taylor Wang, China/USA

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1Basic Themes inEnvironmentalism

A. The Environmental PerspectiveB. The Problem of the CommonsC. A Salty Paradigm: Road Salt, a Problem That Has Not Yet Met Its

Legal Process

A. THE ENVIRONMENTAL PERSPECTIVE

1. The Breadth and Scope of Environmentalism

David Brower, a founding elder of the twentieth-century American environmental move-ment who had the title role in Encounters with the Archdruid, John McPhee’s book aboutenvironmentalism in America,1 was standing on a lakeshore talking to an environmental lawclass. White-haired and raw-boned with piercing blue eyes, Brower stretched out his arm,with thumb and forefinger held about two inches apart, and said:

Imagine if our entire planet was reduced to this, the size of an egg.... If Earth was the size of anegg, what do you think, proportionally, all its air, its atmosphere, would be? And what would bethe total volume of water, that along with air and sunlight sustains all life on this Earth?…According to computations I’ve seen, the sum total of atmosphere swathed around an egg planetEarth would be no more than the volume of a little pea, spread around the globe. And the water?That would be no more than a matchhead, a tiny volume spread thin enough to fill the oceans,rivers and lakes of the world. Our planet is a tremendously vulnerable little system, totallydependent on that fragile tissue of air and water. It’s such a thin fabric of life support, and it’s allthe air and water the Earth will ever have.2

But let’s take Brower’s metaphor one step further: What would be the proportional rela-tionship between our planet and the sum total mass of all the humans currently living on earth—ofHomo sapiens, the unique species that works such drastic impacts upon the earth? Obvi-ously that comparison can’t be made in relation to an egg, so let’s modify it: What would bethe proportional sum total of all of humanity if our planet were the size of the famousEPCOT Center “Spaceship Earth” globe at Florida’s Disney World? One of our faithfulresearch assistants came up with the answer: If Earth were reduced to the size of the EPCOT

1. J. McPhee, Encounters with the Archdruid (1971). David Brower (1912-2000), a seer of environmental activism,founded seven activist citizen organizations. R.I.P.2. Brower was speaking on a beach on Mission Point Peninsula, Grand Traverse Bay, Michigan, October 1977.

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dome, 165 feet in diameter, then up against it the comparative volume of all human beings onthe planet would be roughly the size of a peppercorn!3 (See Figure 1.) (Note, however, that exceptin relative mass, humankind is emphatically not insignificant and is likely to have dominat-ing effects on that globe for at least a few more centuries.) Earth is indeed one small, lim-ited, totally self-contained entity, a single natural system made up of many interconnectedand interdependent systems, containing great richness, diversity, and vulnerability tohuman actions.

FIGURE 1-1. Beyond Brower’s egg: a juxtaposing thought-experiment: If Earth were reduced to the size of theEPCOT Center globe, the total mass of humanity living on the planet would, proportionally, be the size of a pep-percorn. (See footnote 3.) The small human figure at the base of the EPCOT structure, circled, holding out a pep-percorn, is one of the founding authors of this coursebook. Photo credit: Eric Abrams.

The ecological future of the planet is constantly being shaped by its geophysical history,of course—by continuing natural forces of sun, rain, wind, water, seismics, vulcanism, thecarbon cycle, and the diverse onrolling biological evolution built upon them. But it’s alsoseriously impacted by humans, corporations, and governments. These latter three are veryrecent arrivals on the global scene as well being relatively trivial in mass. They have proved,however, to have a remarkable capacity for causing planetary effects, for good and ill, andit’s upon them that environmental law focuses in doing its work.

Environmental law was born in controversy and has developed in cycles alternatingbetween flourishing growth and retrenchment under bitter counterattack. Since 1960 it has

3. The average American male’s body mass is between .05 and .10 cubic meters (m3). Based on that, let’s assumethat the average human’s body is at the low end of that spectrum (based on men being bigger than women andAmericans being pretty big overall). So let’s say the overall average human’s body mass is .05 m3, which is probablypretty generous. Multiply that by the estimated 6.5 billion people currently on planet Earth = 325 million m3. Themass of Earth is estimated at 1.083 x 10 to the 21st power, m3. Divide the volume of Earth by the volume of itshuman population and you get 3,332,307,692,307.69. In other words, the ratio of Earth’s volume to humans’ vol-ume is 3,332,307,692,307.69 m3 to 1. “Spaceship Earth,” the big EPCOT Dome, is 165 feet in diameter. Thus, itsvolume is 66,603 m3. Divide 66,603 by 3,332,307,692,307.69 and you get .000000019987 or so. Thus, if Earth wasthe size of EPCOT’s dome, then the volume of all human beings would be 0.000000019987 m3, or 0.019187 cubiccentimeters (cm3). Something with a volume of 0.019187 cm3 would have a radius of .166 centimeters (cm), whichwould be a diameter of around .3333 cm—a peppercorn! Thanks to Tim Landry, Boston College Law, Class of ‘07,for these calculations.

4 Chapter 1 • BASIC THEMES IN ENVIRONMENTALISM

become a major sector of our legal system and a vivid mirror of the political evolution of oursociety, operating across a remarkably broad horizon.

If you made a mental list of the amazing diversity of situations that are considered “envi-ronmental law” issues, it might include the following:

• Factories discharging liquid wastes from their drainpipes and smoke from their stacks• Chemical wastes buried in suburban fields• Seal puppies clubbed to death on floating ice packs in the Gulf of St. Lawrence• Uranium fuel rods being shipped thousands of miles to nuclear plants in South Caro-

lina, or India, or North Korea• A government highway agency cutting a path for an interstate through a park and

low-income neighborhood in Memphis• A deepwater oil blowout in the Gulf of Mexico hitting ecosystems and economics• Schools of fish dying in coastal waters from bacterial toxins triggered by wastes

dumped by upland hog and chicken farmers• Toxic gases spreading from chemical plants, poisoning surrounding low-income

neighborhoods in Italy, India, and Louisiana• Sprawl development creating towns that resemble parking lots more than communities• A single-hulled oil tanker more than three football fields long, with an exhausted

crew, running at high speed through icebergs in a narrow rocky channel at night• The imminent extinction of an endangered snapdragon plant in Maine• Hairdressing salons in Yosemite National Park• Environmental justice: Toxic waste sites and incinerators sited in the midst of low-

income minority neighborhoods• Carcinogenic chemical fire retardants in infant sleepwear• The cutting of shade trees along rural roads• Rivers eliminated by federal public works agency dam projects with negative eco-

nomics• A centuries-old church bulldozed for a parking lot, and similar historic preservation

issues• Nonreturnable bottles lying along highways and in urban trash• Disappearing rainforests and desertification in the Third World• New Jersey’s refusal to permit Philadelphia’s garbage to be disposed of in New Jersey

landfills• Chlorinated hydrocarbons from consumer products and pesticides disrupting hor-

mones, lowering sperm counts, and harming child development around the world• Environmental justice: Children with rat bites and lead poisoning in urban slums• Redwood trees turned into tomato stakes and our remnant ancient forests cut for sub-

sidized export• An internationally known 10 million-year-old paleontological fossil site in Colorado

being bulldozed for a resort subdivision• Asbestos dust in local elementary schools• Environmental justice: The construction of a new federal prison breaking apart a

cohesive low-income neighborhood in New York City• Chlorofluorocarbons thinning stratospheric ozone, causing increased ultraviolet

radiation hazards on Earth• A primitive tribe in Panama threatened by extension of the Pan-American Highway

through its jungle territory

5A. The Environmental Perspective

• Space junk in geosynchronous orbit, and possibilities for radioactive and bacterialcontamination extending far beyond

• Polar bears stranded by receding sea ice, endangered by changing weather patternsand rising sea levels across the entire planet, caused in substantial part by globalwarming from human-generated greenhouse gases4

• And hundreds more

In each of these settings, moreover, environmental law needs to be affirmative as well ascritical: How can the human actions that cause each of these problems be effectively recon-figured to work successfully and sustainably in economic as well as ecological terms forfuture generations?

Is this parade of challenges just one field of law? It seems so. All of these widely diversesituations have been identified as environmental. For each of them (and hundreds of others),activists identified as environmentalists have taken action to improve the situation, often witha good deal of success. Each case involves a highly individualized set of economic and politi-cal issues, scientific facts, private or governmental actors, and social and natural conse-quences. Many of them have no obvious connection with others on the list beyond theirenvironmental label. Because the different areas of environmental law are so voluminouslycomplex, they become compartmentalized and unwieldy. An expert working on water pol-lution law typically has little time to do anything else. A person studying the science and lawof endangered plants may have no special knowledge of any other environmental area andno ties to individuals working on other kinds of environmental cases. Given this diversity,the term environmental may seem uselessly broad, describing nothing in particular.

What do these “environmental” examples all have in common? It may be that whatmakes issues environmental is that they all reflect a characteristic battle between two very dif-ferent ways of looking at the world:

Almost every environmental case starts in response to someone’s decision to do some-thing: a new product or technology; a construction project; the start, continuation, or ces-sation of various programs that affect the physical world.5 A common complaint ofenvironmentalists is that most people who make project proposals do not adequately con-sider their projects’ problematic aspects. Resulting decisions thus are often predicated onirrationally and unrealistically narrow grounds, focusing on narrowed advantage to the pro-moters and unwisely ignoring facts, costs, and impacts on public values that have real impor-tance to the well-being of the community and natural systems.

Environmental analysis in all these cases commonly makes three scrutinizing assess-ments:

1. What are the true benefits of the proposed project or program?2. What are its true full costs and consequences?3. What are the feasible alternatives and their comparative benefits and costs?

One or more of these inquiries typically reveals important questions about the publicmerits of proposals, providing the basis for arguments to improve or halt problematic plans.Unfortunately the environmental perspective often surfaces relatively late in the game, long

4. This particular environmental challenge is perhaps the most severe and daunting that human society has everfaced. It will undoubtedly be addressed, however, through the already-existing legal mechanisms studied within thisbook’s “taxonomy” of different legal approaches to environmental protection.5. With regard to some of the largest geophysical issues, of course—such as deforestation or, especially, overpopu-lation, which produces circumstances where basic natural resources are simply incapable of supporting the geo-metrically increasing numbers of dependent humans thrust upon them—the operative human decisions are notmade consciously but by tradition, atavistic drives, inertia, and default.


after the planning stages and well into the implementation stages—that is, at the lastminute, when citizens see bulldozers rolling. And environmentalists, because of theirinstinctive tendency to look for overlooked problems and their often-skeptical view ofclaimed benefits, often end up sounding chronically negative. It need not be so.

Take the example of the Memphis superhighway, studied in the Overton Park case.6 Thefederal and state highway planners wanted to locate a stretch of Interstate 40 along a routethat would minimize the costs of land acquisition and the inconvenience of lawsuits. Withthat strategy in mind, they planned to run the road straight through an urban park and anolder neighborhood. The local citizen environmentalists argued that this official decisiontook no account of the natural and social value of parkland, especially a park serving low-income communities. If the full costs and values were taken into account, alternative routesexisted that were preferable and available. The citizens found a tactical piece of law—anenvironmental statute limiting highway impacts on parklands—that made their point andwon the issue. That citizen-generated legal precedent has subsequently resulted in substan-tial improvements in the official foresight and advance planning given to major highwayprojects around the nation.

2. The Ecological and Ethical Bases of Environmental Law

a. The Science of Ecology (MICRO and MACRO)

Law draws lessons and arguments from ecology and the other flourishing environmen-tal sciences. Modern environmentalists draw particular inspiration and momentum fromRachel Carson and Aldo Leopold, two giants in the field. Here are two brief examples oftheir work.

Aldo Leopold, A Sand County Almanac214–220 (1968 ed.)

The image commonly employed in conservation education is “the balance of nature.” Forreasons too lengthy to detail here, this figure of speech fails to describe accurately what littlewe know about the land mechanism. A much truer image is the one employed in ecology:the biotic pyramid.... Plants absorb energy from the sun. This energy flows through a circuitcalled the biota, which may be represented by a pyramid consisting of layers. The bottomlayer is the soil. A plant layer rests on the soil, an insect layer on the plants, a bird and rodentlayer on the insects, and so on up through various animal groups to the apex layer, whichconsists of the larger carnivores....

In the beginning, the pyramid of life was low and squat; the food chains short andsimple. Evolution has added layer after layer, link after link. Man is one of thousands ofaccretions to the height and complexity of the pyramid. Science has given us many doubts,but it has given us at least one certainty: the trend of evolution is to elaborate and diversifythe biota. Land, then, is not merely soil; it is a fountain of energy flowing through soils,plants, and animals. Food chains are the living channels which conduct energy upward;death and decay return to the soil. The circuit is not closed; some energy is dissipated indecay, some is added by absorption from the air, some is stored in soils, peats, and long-livedforests; but it is a sustained circuit, like a slowly augmented revolving fund of life....

The velocity and character of the upward flow of energy depend on the complex struc-ture of the plant and animal community, much as the upward flow of sap in a tree depends

6. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); see Chapter 6.


on its complex cellular organization. Without this complexity, normal circulation would pre-sumably not occur. Structure means the characteristic numbers, as well as the characteristickinds and functions, of the component species. This interdependence between the complexstructure of the land and its smooth functioning as an energy unit is one of its basicattributes.

When a change occurs in one part of the circuit, many other parts must adjust them-selves to it. Change does not necessarily obstruct or divert the flow of energy; evolution is along series of self-induced changes, the net result of which has been to elaborate the flowmechanism and to lengthen the circuit. Evolutionary changes, however, are usually slow andlocal. Man’s invention of tools has enabled him to make changes of unprecedented violence,rapidity, and scope.... The combined evidence of history and ecology seems to support onegeneral deduction: the less violent the man-made changes, the greater the probability ofsuccessful readjustment in the pyramid.... This deduction runs counter to our current phi-losophy, which assumes that because a small increase in density enriches human life, that anindefinite increase will enrich it indefinitely. Ecology knows of no density relationshipthat holds for indefinitely wide limits. All gains from density are subject to a law ofdiminishing returns.

Rachel Carson, Silent Spring54–57, 61 (1962)

There are few studies more fascinating, and at the same time more neglected, than those ofthe teeming populations that exist in the dark realms of the soil. Perhaps the most essentialorganisms in the soil are the smallest—the invisible hosts of bacteria and threadlike fungi.Statistics of their abundance take us at once into astronomical figures. A teaspoonful of top-soil may contain billions of bacteria. In spite of their minute size, the total weight of this hostof bacteria in the top foot of a single acre of fertile soil may be as much as a thousand pounds.Ray fungi, bacteria, [and] small green cells called algae, these make up the microscopic plantlife of the soil [and are] the principal agents of decay, reducing plant and animal residues totheir component minerals. The vast cyclic movements of chemical elements such as carbonand nitrogen through soil and air and living tissue could not proceed without thesemicroplants. Without the nitrogen-fixing bacteria, for example, plants would starve for wantof nitrogen, though surrounded by a sea of nitrogen-containing air. Other organisms formcarbon dioxide, which, as carbonic acid, aids in dissolving rock. Still other soil microbes per-form various oxidations and reductions by which minerals such as iron, manganese, and sul-fur are transformed and made available to plants.

Also present in prodigious numbers are microscopic mites and primitive wingless insectscalled springtails. Despite their small size they play an important part in breaking down theresidues of plants, aiding in the slow conversion of the litter of the forest floor to soil. Thespecialization of some of these minute creatures for their task is almost incredible. Severalspecies of mites, for example, can begin life only within the fallen needles of a spruce tree.Sheltered here, they digest out the inner tissues of the needle. When the mites have com-pleted their development only the outer layer of the cells remains. The truly staggering taskof dealing with the tremendous amount of plant material in the annual leaf fall belongs tosome of the small insects of the soil and the forest floor. They macerate and digest the leaves,and aid in mixing the decomposed matter with surface soil.

Besides all this horde of minute but ceaselessly toiling creatures there are of course manylarger forms, for soil life runs the gamut from bacteria to mammals. Some are permanentresidents of the dark subsurface layers; some hibernate or spend definite parts of their life


cycles in underground chambers; some freely come and go between their burrows and theupper world. In general the effect of all this habitation of the soil is to aerate it and improveboth its drainage and the penetration of water throughout the layers of plant growth.

Of all the larger inhabitants of the soil, probably none is more important than the earth-worm. Over three quarters of a century ago, Charles Darwin...gave the world its first under-standing of the fundamental role of earthworms as geologic agents for the transport ofsoil—a picture of surface rocks being gradually covered by fine soil brought up from belowby the worms, in annual amounts running from many tons to the acre in most favorableareas.7 At the same time, quantities of organic matter contained in leaves and grass (as muchas 20 pounds to the square yard in six months) are drawn down into the burrows and incor-porated in soil. Darwin’s calculations showed that the toil of earthworms might add a layerof soil an inch to inch and a half thick in a ten-year period. And this is by no means all theydo: their burrows aerate the soil, keep it well drained, and aid the penetration of plantroots.... The soil community, then, consists of a web of interwoven lives, each in some wayrelated to the others—the living creatures depending on the soil, but the soil in turn a vitalelement of the earth only so long as this community within it flourishes.

The problem that concerns us here is one that has received little consideration: Whathappens to these incredibly numerous and vitally necessary inhabitants of soil when poison-ous chemicals are carried down into their world, either introduced directly as soil “ster-ilants” or borne on the rain that has picked up a lethal contamination as it filters throughthe leaf canopy of forest and orchard cropland? Is it reasonable to suppose that we can applya broad-spectrum insecticide to kill the burrowing larval stages of a crop-destroying insect,for example, without also killing the “good” insects whose function may be the essential oneof breaking down matter? Or can we use a nonspecific fungicide without also killing thefungi that inhabit the roots of many trees in a beneficial association that aids the tree inextracting nutrients from the soil?...

Chemical control of insects seems to have proceeded on the assumption that the soilcould and would sustain any amount of...poisons without striking back. The very nature ofthe world of the soil has been largely ignored.... A group of specialists who met to discuss theecology of the soil...summed up the hazards of using such potent and little understoodtools.... “A few false moves on the part of man may result in destruction of soil productivity,and the arthropods may well take over.”

COMMENTARY & QUESTIONS

1. Leopold, ecology, and the romantic misnomer of “natural equilibrium.” In theyears since 1948, when Aldo Leopold first wrote Sand County Almanac, the observations andinterconnections he discovered in the Wisconsin countryside helped nurture the new-oldscience of ecology. The study of organisms as they actually live and interact in livingnetworks over time offers important advantages over the reductionistic study of a creatureor compound or its genetic building blocks isolated on a slide or lab table. The multifactoredeffects of industrial activities on the people and environments they impact are not realisti-cally predictable through traditional scientific disciplines. For lawyers in the field, a surveycourse in ecology and environmental science techniques is a good investment of time. TheUniversity of Maryland’s environmental law program has published a short coursebook on“Environmental Science for Lawyers.” Other useful books illustrate the breadth and depth

7. C. Darwin, The Formation of Vegetable Mould, through the Action of Worms, with Observations on Their Habits(1897).


of modern ecological sciences and explain how to ask intelligent questions about them. See,e.g., K.S. Shrader-Frechette & E.D. McCoy, Method in Ecology (1993).

As Leopold noted, the image commonly employed of “the balance of nature” fails todescribe accurately what we now know about ecology—that the natural world is composed ofdynamic ongoing systems, not of static balances. There is no ideal historical “balance ofnature” from which today’s environment came and to which natural communities can orshould be returned, despite the classical rhetoric of some environmentalists.

“Equilibrium” was the source of the “balance of nature” premise.... It was understood thatpopulations of organisms could swing from low to high in accordance with the seasons andthe system’s other cycles, but its “equilibrium” levels [supposedly] remained constant overtime and the system’s pattern did not change.... The balance of nature premise has beendescribed as the ecological justification for what was once the dominant principle in envi-ronmental law—“let nature be.”8 Equilibrium theory no longer governs ecological think-ing. Instead, [it is now understood that] ecosystems...do not reach a climax state...[but]continue to evolve and change.... “Species come and go, climates change, plant and animalcommunities adapt to altered circumstances, and when examined in fine detail such adap-tation and consequent change can be seen to be taking place constantly. The ‘balance ofnature’ is a myth. Our planet is dynamic, and so are the arrangements by which its inhab-itants live together.”9 Pardy, Changing Nature: The Myth of the Inevitability of EcosystemManagement.10

Environmental law echoes the changing dynamics of human and ecological intercon-nections.

2. The broad reverberations of Rachel Carson’s microcosm. Rachel Carson’s percep-tive observations revealed a systemic deficiency in the way mid-twentieth-century humansmade decisions. Carson changed the way many Americans viewed their world.11 Reflectingthe traditional instinctive perspective of human enterprises, most people plan projects orsolve problems using one-shot technology—insulated, narrow, and unidimensional:

“You got bugs? So go get a pesticide.”...Zap.“Now you’ve got what you wanted. Dead bugs. The End.”

But that’s not the end of it. There is no such thing as a simple one-shot technology.Everything has continuing long-term consequences. Pesticides don’t just disappear afterthey have killed the target bugs. They linger on and on, blowing in the wind, leaching intogroundwater, eliminating the rich, interconnected communities that had naturally evolved

8. 20 Pace Envtl. L. Rev. 675, 687 (2003). See also Botkin, Adjusting Law to Nature’s Discordant Harmonies, 7 DukeEnvtl. L. & Pol’y F. 25, 26 (1996); and Tarlock, The Nonequilibrium Paradigm in Ecology and the Partial Unrav-eling of Environmental Law, 27 Loy. L.A. L. Rev. 1121, 1122 (1994). This principle was adopted by legislators,regulators, resource managers, and lawyers, and gradually replaced the progressive conservation movement’s ethicof multiple use. Tarlock cites D.L. Feldman, Water Resources Management: In Search of an Environmental Ethic(1991), as providing a good case study of this evolution.9. M. Allaby, Basics of Environmental Science 154 (1996).10. 20 Pace Envtl. L. Rev. 675, 687 (2003) (quoting Botkin and Allaby). Prof. Pardy’s article explores the policy alle-gation that, since there is no such thing as natural equilibrium to act as a moral and legal touchstone, human “eco-system management” activities impacting natural systems do not thereby violate any norm of natural systems, butrather are just one more form of change. But this assertion “is a policy choice masquerading as an inevitability. Nei-ther nonequilibrium nor the absence of pristine systems demands that ecosystems be changed to suit human pref-erences.... Natural is possible. Whether it is preferable is a different debate.” Id. at 691.11. It is remarkable in retrospect how three books written at virtually the same historical moment so powerfullyreshaped so much of modern American society’s view of life—Jane Jacobs, The Death and Life of Great AmericanCities (1961); Rachel Carson, Silent Spring (1962); Betty Friedan, The Feminine Mystique (1963). What is it theyhave in common?


in the land to give it its fertility in the first place, moving up through ecological food chains,and diffusing far and wide through the air currents of the hemisphere.12

The lessons Carson drew from DDT pesticides are readily applied to many other set-tings as well—to other kinds of pollution, to resource management issues like timber andgrazing, highway and transportation planning, pharmaceuticals and health technology, andby extension to many other areas of national policy like climate change.

Carson showed that the particular results desired from human actions are typically notall that happens. Predictable problems follow when official players, both corporate and gov-ernmental, make decisions in traditional terms, seeking short-term benefits with a nar-rowed, insulated field of vision. Although humans may not take account of the real social andecological costs of their actions, nature keeps a comprehensive tab, and real consequencesfollow. Western societies traditionally have tended to view human actors as the central play-ers in the life of the planet, with nature as a subservient and pliant backdrop, but nature isnot “outside” our human economy or our jurisprudence.13 Carson demonstrated throughan ecological lens that the natural backdrop to human activity may be far larger in scale andimportance than the human figures pirouetting in the foreground.

Talbot Page, A Generic View of Toxic Chemicals & Similar Risks7 Ecology Law Quarterly 207 (1978)

...RELATIVE COSTS: FALSE NEGATIVES AND FALSE POSITIVES. By definition, the potentialcosts of environmental risks are great and the benefits are generally modest. Correspond-ingly, there is asymmetry in the costs of making wrong decisions. For classical pollutants, theasymmetry of potential costs and benefits, and hence the potential costs of wrong decisions,are likely to be less pronounced than for environmental risk problems.

The concept of false negatives and false positives helps to illustrate this distinction. Incriminal law, two basic kinds of mistakes can occur: the jury (or judge) can find a guilty maninnocent or an innocent man guilty. Testing chemicals for toxicity presents the same prob-lem. Test results may indicate that a toxic chemical is not toxic or that a non-toxic chemicalis toxic. The former type of error is called a false negative and the latter a false positive....

12. See T. Colborn, D. Dumanoski & J. P. Myers, Our Stolen Future: Are We Threatening Our Fertility, Intelligence,and Survival?—A Scientific Detective Story (1997).13. David Westbrook has expressed some frustration at the difficulty of defining a coherent philosophy of environ-mental jurisprudence. He tried to build a liberal conceptual overview upon the perspectives of individual humanrights, collective aggregated rights, and markets but was unable to fit some sectors of environmental law into thoserealms. Norms protecting endangered species, for instance, seemed to come from an alien, less human-centereddomain. See generally Westbrook, Liberal Environmental Jurisprudence, 27 U.C. Davis L. Rev. 619 (1994). As hehas commented:

Most of our law may be (must be) articulable in some liberal language. But the Endangered Species Actcannot be, not really.... At some point liberalism’s concern for the internal (autonomy, choice), fails tocapture environmentalism’s sense of the external (ecosystems, nature, etc.). At the end of the day, youcannot explain the outside in terms of the inside. David Westbrook, post on Envprofs listserv,[email protected] (Nov. 6, 2001).

Conceptualizing the existence of three interlinked economies, however, explains that environmental juris-prudence operates on the realistic foundation that there is no external outside. Environmental law’s high purposeand aspiration is to make sense of the First Law of Ecology, that everything is connected to everything else. Envi-ronmental law, like all law, ultimately must function in the real world, a world made up of multiple interlocking sys-tems. We humans individually and collectively are indeed significant components of many of these multiplesystems. But we are not hermetically separated from the systemic elements and networks that don’t operate on ourown terms, just as we are not disconnected from the consequences of our own actions.


[In environmental risk situations] the cost of a false negative—deciding that the benignhypothesis is true when it is not—is much higher than the cost of a false positive—decidingthat the catastrophic hypothesis is true when it is not.... Catastrophic results more than off-set the modest benefits of erroneously accepting the benign hypothesis....

Acceptable risk... Even if the probability of an environmental risk were well defined, ourlegal, regulatory, and economic institutions must still decide what degree of risk is accept-able. Although there are several approaches for defining acceptable risk, there is little agree-ment on what is the best approach. This ambiguity presents a major difficulty in managingenvironmental risk. A few of the approaches are discussed below....

Limiting false positives. The most common approach for risks subject to governmentalregulation and court proceedings starts with the assumption that there is no risk andrequires that a hazard be proved beyond some standard. Under this approach [of limitingfalse positives], by definition, if the standard of proof is not met, then the risk is acceptable.The burden of proof is placed on those seeking precautionary action.... However, theapproach of limiting false positives, although often effective in defining acceptable risk forclassical problems, has questionable value for the management of environmental risk....

Limiting false negatives. Limiting false positives is the guiding principle of criminal law.The objective is to limit the chance of a false conviction. The common-sense justificationfor this objective is that it is better to free a hundred guilty men than to convict oneinnocent one....

A comparison of criminal law with environmental risk, however, suggests an importantdifference. The costs of false negatives and false positives are asymmetric for environmentalrisk as well, but the asymmetry is in reverse order. For environmental risk, the asymmetri-cally high cost arises from a false negative; in criminal law from a false positive. Similarly,just as a primary good, liberty, is an important concern in criminal law, so another primarygood, health, is an important concern in environmental risk management, but again theroles are reversed. Typically, public health is adversely affected under a false negative forenvironmental risk, while liberty is adversely affected under a false positive for criminal law.

The analogy between criminal law and environmental risk requires that the roles ofnegatives and positives be reversed. If the emphasis on limiting false positives for criminallaw is sensible and based on the asymmetry of costs of wrong decisions and the possible dep-rivation of a public good, then the implication is that a decision procedure based on limitingfalse negatives is more appropriate for environmental risk than one based on limitingfalse positives....

Focusing more attention on the need to limit false negatives brings us back to the impor-tance of modeling the risks and hypotheses, including “credible” worst case modeling. It isclearly infeasible to take precautionary action for each conceivable environmental risk; therewould be too many. Requiring some sort of model of the risk provides an entrance barrieragainst the flood of conceivable risks for which precautionary action should be evaluated.Because of the nature of environmental risk it is senseless to require proof of actual harm;the barrier should be no more than a reasonable basis within the context of the model forbelieving that there is a risk of harm. The risk itself may be small.

Balancing false positives and false negatives. [Page then recommends a decisionmakingmechanism, which he calls “the expected value approach,” that balances the cost of a falsenegative, weighted by its probability of occurrence, against the cost of a false positive,weighted by its probability of occurrence, and chooses the alternative with the lower


weighted cost.14 Page recognizes the importance and intransigence of “outrage” factors inrisk management.]

The hard part is to uncover a social consensus on the appropriate amount of risk aver-sion and then to build this amount into the institutions which manage environmental risks.

The expected value approach does not require that each environmental risk be regu-lated, or not regulated, on the sole basis of a detailed and quantified cost-benefit analysis.For example, the internal transfer of benefits tends to be associated with a sharply focusedgroup of proponents of the environmental risk taking, while the external transfer of thepotential costs, both spatially and temporally, is associated with a broader but less focusedgroup of opponents.15 This imbalance in interests, for and against, is likely to lead to animbalance in decision making, even for an ostensibly neutral cost-benefit analysis, unless theimbalance in interests is recognized and offset by the design of the decision making institu-tions. Alternatively, in order to come closer to a minimum expected cost of wrong decisions,it is necessary to adjust the rules of the decision process—the standards and burdens ofproof, the rules of liability, the incentives for the generation and valuation of information,and so on. For instance, when the potential adverse effects of an environmental risk aremany times greater than the potential benefits, a proper standard of proof of danger underthe expected cost minimization criterion may be that there is only “at least a reasonabledoubt” that the adverse effect will occur, rather than requiring a greater probability, such as“more likely than not,” that the effect will occur.


1. The “Precautionary Principle.” The “Precautionary Principle” is an environmentalprinciple reflected in many international and domestic regulatory fields—if a thing is poten-tially very dangerous and alternatives exist, why wait until all studies are complete before act-ing to limit exposures? It asserts Page’s utilitarian perspective: Unless you collectively arepretty sure that the negative consequences are foreseeable, minor, and mitigatable, and thatfundamentally important interconnections will not be disrupted, you’d better be sure thatwhat somebody proposes to do is worth the potential costs. It’s generally safer not to takecasual risks with the escalating domino consequences that may follow. Moving from ahuman-centered master-of-nature perspective to the holistic human-species-as-constituent-part-of-nature view is not just an ethical idea—it is fundamentally practical and utilitarian aswell, as Rachel Carson argued.

2. “Classical pollution” and “environmental risk.” In the same article, Page recom-mends that the legal system manage risks caused by pollution and resource depletion basedon where a particular risk falls on a continuum between what he terms “Classical Pollution”and “Environmental Risk.” The former presents the more humdrum problem of dealingwith relatively well-understood and innocuous effluent streams and their effects on the envi-ronment. The latter is more complex. Page defines environmental risk in terms of ninecharacteristics, four dealing with the uncertainties surrounding environmental decision-making and five bearing on institutional problems encountered in environmental manage-ment. Environmental problems differ as to how intensely they exhibit these characteristics.The first four characteristics of environmental risk are (1) ignorance of mechanism (i.e.,scientific uncertainty as to the generation and transmission of hazards, as well as their envi-ronmental impacts), (2) relatively modest benefits, (3) potentially catastrophic costs, and

14. Once the concepts of “minimizing false negatives” and “minimizing false positives” have been learned, it mightbe simpler to refer to them as the “proactive” and “reactive” approaches to risk management. [Eds.]15. This is one of the central tenets of “public choice theory.” [Eds.]


(4) relatively low probability of occurrence of catastrophic outcomes. Hazards manifestingthese characteristics often present the “Zero-Infinity Dilemma”—a virtually zero probabilityof occurrence of a virtually infinite catastrophe.16

3. Environmental risk and environmental justice. Since Page wrote this article, envi-ronmental justice has emerged as a matter of concern. With that in mind, distributionalinequality might qualify as a tenth characteristic of environmental risk. Environmental risksare imposed disproportionately on the least politically powerful members of our society—minorities, the poor, children, and the sick and disabled. The toxic effects of pesticides,for example, are most intensely experienced by farm workers. Most hazardous waste dis-posal facilities have been located in neighborhoods occupied by disadvantaged groups. Isthat form of environmental injustice a form of racism?

4. Species eradication as a catastrophic ecological cost. The importance of biodiver-sity, both as a necessity for human survival and as an end in itself, is better understood todaythan it was even a generation ago. Managing environmental risks entails factoring ecologi-cal effects of human behavior into environmental decisionmaking. Extinction is the mostprofoundly irreversible phenomenon on this planet. How should risks of species extinctionbe managed? The Endangered Species Act is studied in Chapter 10.

5. External cost transfers and political power. Note how heavily Page, in his definitionof environmental risk, relies on the theory of “externalities.” Internalization of economicbenefits among a focused, knowledgeable, and politically powerful group of producers andconsumers leads to concentrated political power that tends to outweigh the weaker politicalinfluence exercised by a diffuse, disorganized, unaware, and often politically powerless classof polluted public (which, in theory, includes future generations, which cannot directly par-ticipate in the political process). Furthermore, it is difficult to organize members of the gen-eral public to oppose the imposition of a collective risk because of the “transaction costs”(e.g., time and money) of participation and the “free rider problem” (i.e., the human ten-dency to believe that someone else will solve the problem). This political asymmetry isanother reason for minimizing false negatives. It also explains the need for politically strongenvironmental groups to counterbalance the influence of powerful producer and consumerconstituencies.

G. Tyler Miller, Living in the Environment:Principles, Connections, & Solutions105, 247-248 (11th ed. 1999)

None of us live apart from nature.... Ecosystems provide us and other species with a numberof natural services; ecosystem services, which constitute earth capital, support life on theearth and are essential to the quality of human life and to the functioning of the world’seconomies....17

Ecosystems...

• Control and moderate climate• Provide us with and renew air, water, and soil• Recycle vital nutrients through chemical cycling

16. Page’s other characteristics are internal benefits, external costs, collective risk, latency (e.g., carcinogenic effectsmay not manifest themselves until 20 or 30 years after exposure), and irreversibility of effects.17. “An ecosystem is a community of different species interacting with one another and with their nonliving envi-ronment of matter and energy. The [expanse] of an ecosystem is somewhat arbitrary; it is defined by the...unit ofstudy,...small and particular...or large and generalized.... All of the earth’s ecosystems together make up what wecall the ecosphere or biosphere....” [citation omitted].


• Provide us with renewable and nonrenewable energy sources and nonrenewableminerals

• Furnish us with food, fiber, medicines, timber, and paper• Pollinate crops and other plant species• Absorb, dilute, or detoxify many pollutants and toxic chemicals• Help control populations of pests and disease organisms• Slow soil erosion and help prevent flooding• Provide the biodiversity of genes and species needed to adapt to ever-changing envi-

ronmental conditions through evolution and genetic engineering.

All natural and human-altered ecosystems that have their functional integrity intactprovide some or all of these services free of charge....

What can we learn from nature about living substainably? After billions of years of trialand error, the rest of nature has solved the problem of dynamic sustainability by being ableto change and adapt to new conditions through the biological evolution of populations. Butthere is growing concern that humans, as newcomers on the scene, are beginning to threatenthis substantially for our own species and millions of others.

Living systems have six key features, interdependence, diversity, resilience, adaptability, unpre-dictability, and limits.... Here are some basic ecological lessons from nature.

Most ecosystems use sunlight as their primary source of energy....Soil, water, air, plants, and animals are renewed through natural processes.Energy is always required to produce or maintain an energy flow or to recycle chemicals.Biodiversity takes various forms in different parts of the world,...species diversity,

genetic diversity, and ecological diversity having evolved over billions of years underdifferent environmental conditions.

Complex networks of positive and negative feedback loops give organisms and popu-lations information and control mechanisms for adapting, within limits, to changingconditions.

The population size and growth rate of all species are controlled by their interactionswith other species and with their nonliving environment. In nature there are alwayslimits to population growth.

Organisms, except perhaps humans, generally use only what they need (not merelywant) to survive, stay healthy, and reproduce.

Currently, humans are violating these principles of sustainability. No one knows howlong we can continue doing this. Biologists have formulated several important principlesthat can help guide us in our search for more suitable lifestyles: We are part of, not apartfrom, the earth’s dynamic web of life.... Our lives, lifestyles, and economics are totally depen-dent on the sun and the earth.... We can never do merely one thing.... The first law of humanecology [is that] everything is connected to everything else: we are all in it together. We areconnected to all living organisms through the long evolutionary history contained in ourDNA. We are connected to the earth through our interactions with air, water, soil, and otherliving organisms making up the ever-changing web of life. The destiny of all species is ashared one. The primary goal of ecology is to discover which connections in nature are thestrongest, most important, and most vulnerable to disruption.

We need not—and indeed cannot—stop growing food or building cities. Indeed, con-centrating people in cities and increasing food supplies by raising the yields per area of crop-land are both ways to help protect much of the earth’s biodiversity from being destroyed ordegraded, as long as the harmful environmental side effects of such activities are kept undercontrol. The key lesson is that we need earth wisdom, care, restraint, humility, cooperation,


and love as we alter the ecosphere to meet our needs and wants. Earth care is self-care, andwe can change our ways. According to environmentalist David Brower, we need to focus on“global CPR... conservation, preservation, and restoration.” This means (1) building socie-ties based on conservation, not waste, (2) preserving what we can’t replace, and (3) workingwith nature to help restore what we have degraded or destroyed.


1. “Ecosystem services” and environmental economics. As Miller notes, the richlydiverse and dynamic interconnected natural systems that surround us provide extraordinar-ily valuable and critically important ecosystem services that are largely unrecognized andtaken for granted. Robert Costanza and colleagues have analyzed the multi-trillion dollarvalues of “natural capital,” the resources and services provided free or far below their truevalue, without which the marketplace and human life would be impossible. They came upwith very impressive “natural capital” numbers:

We have estimated the current economic value of 17 ecosystem services for 16 biomes,based on published studies and a few original calculations. For the entire biosphere, thevalue (most of which is outside the market) is estimated to be in the range of US $16-54 tril-lion per year.... Because of the nature of the uncertainties, this must be considered a mini-mum estimate. Global gross national product total is around $18 trillion per year. Costanzaet al., The Value of the World’s Ecosystem Services, 387 Nature 253 (1997).18

Numbers like these indicate that when we talk about economics we need to includean Economy of Nature, which is more than a charming aesthetic idea and is ignored atour societal peril. See “the three economies” section below.

2. The concept of “ecosystems.” You cannot make sense of any piece of nature if youobserve it in isolation. Ecology forces us to look beyond just a single bacterium, a cubic cen-timeter of soil, an earthworm, a tuft of grass, a cow, a wolf, a rancher. An understanding ofcontext, including physical settings and interrelationships with surrounding individuals andcommunities, is fundamental to understanding reality and the science of ecology. Most eco-systems are complex communities in which all the elements exist and interact in multipleinterrelationships characterized overall by extremely high efficiency and relatively high sta-bility so long as fundamental changes do not occur. Disruptions and dislocations causeimmediate reverberating effects through the system, leading to adaptive changes and newaccommodations, though perhaps with decreased richness in surviving numbers of compo-nent species and lowered net productivity. Some elements may be more significant than oth-ers. One species may have only a small role in a particular ecosystem, while others may be“indicator species,” whose welfare is a barometer for the health of the entire ecosystem, or“keystone species,” which if they are removed or altered will force systemic changes through-out the ecosystem. The greater the complexity and biodiversity of the ecosystem, the higherthe net primary productivity and adaptive resilience are likely to be.

3. Can the ecosystems metaphor be applied to human systems? The ecosystems meta-phor seems applicable to many human social structures such as corporations or political

18. See also P. Hawken et al.,Natural Capitalism: The Coming Efficiency Revolution (1998); Costanza & Daly, Natu-ral Capital and Sustainable Development, 6 Conserv. Bio. 37-46 (1992); Hawken, Natural Capitalism, MotherJones, Mar.–Apr. 1997, at 40. There is a strong body of law review scholarship on ecosystem services. See Nature’sServices: Societal Dependence on Natural Ecosystems (G.C. Daily ed., 1997); Ruhl & Salzman, The Law and PolicyBeginnings of Ecosystem Services, 22 J. Land Use & Envtl. L. 157 (2007); Ruhl, Toward a Common Law of Eco-system Services, 18 St. Thomas L. Rev. 1 (2005); Salzman, Thompson & Daily, Protecting Ecosystem Services: Sci-ence, Economics, and Law, 20 Stan. Envtl. L.J. 309 (2001).


capitals, but it is probably more accurate to say that we humans, whether we like it or not, arepart of the ecosystems and biosphere in which we live, uniquely able to observe and managethe way we impact our base and the other systems with which we coexist. To remain ignorantof these systems of ecosystems is likely to be costly and dangerous. Think how staphylococciare increasingly resistant to antibiotics, agricultural soils are losing their fertility and naturalregeneration ability, and ocean fish stocks around the world are in precipitous decline.

4. The depressing perspectives of global ecology and the law—and an egregious pun.In the eyes of some observers, these global challenges can be met only through a basic changein attitudes toward use and preservation of natural resources that would dramatically changelifestyles in virtually all parts of the world. What role, if any, would law play in that process?Laws can prohibit directly and indirectly some forms of environmental carnage, as with at-tempts to protect endangered species. Finding laws that seem capable of effecting largerbehavioral changes, such as reducing global emissions of greenhouse gases produced by fossilfuel consumption and deforestation, remains problematic.

Arnold Reitze, in a penetrating article reviewing 20 years of environmental efforts,19

dourly noted that virtually all global environmental degradation can be traced back to threemajor human phenomena—population, unwise consumption of resources, and pollution(all three, for example, linked to climate change)—all of which are out of control. Of these,he said, the most devastating is population pressure. Relentless population growth under-cuts the hopes of nationbuilders and those who try to apply industrial, social, economic, andlegal technology to alleviate the ills of humankind and the planet. Reitze noted that govern-ments find the problems of population and resource consumption so hard to handle thatthey tend to ignore them and focus instead on pollution,20 which, though serious, is the leastimportant of the major causes of environmental degradation.

The Pun: It seems to us there’s a need to add another one to Reitze’s three systemicproblems, and not merely for the purpose of making the pun, “Four Horsemen of the Eco-palypse.”21 The Fourth Horseman of the Eco-palypse, we would argue, is a critically impor-tant procedural/governance problem, particularly within the jurisdiction of the law’s art: It’sthe gap between what we know and what we do. Despite a truly amazing expansion of ecologicalknowledge—about pollution, population, resource losses, and the interconnectedness ofhuman and natural systems—and the ability to communicate that knowledge globally at thespeed of light, it’s distressing to observe the difference between knowledge and practice.Our capacity to implement what we know about these serious threats consistently falls short,and may even be falling further behind. Looking at the way the realities of climate changescience, for instance, have been held at bay we’d suggest that thoughtful societal responsesto what we well know are generally held back by the same powerful market force dynamicsthat drive human enterprises and cause externalizations in the first place. The same marketpressures that make civic regulation necessary assiduously resist it.

In their article Can Selfishness Save the Environment?22 Bobbi Low and Matt Ridleyoffer a more optimistic reminder that collective individual self-interests can be mobilized ingroup mutual support impulses, internalizing the needs of sustainable management, if lawsand incentives are crafted to work toward goals of reciprocal advantage.

5. A need for integrated environmental management? Reality exists in the holistic,integrated overview, but knowledge and the capacity to manage discrete problems build

19. Reitze, Environmental Policy—It Is Time for a New Beginning, 14 Colum. J. Envtl. L. 111 (1989).20. This book to some extent incorporates that mistake. It is far easier to study legal remedies for controlling pol-lution than for controlling population and resource consumption patterns. This coursebook does look beyond pol-lution, however, and the legal process approaches examined here can be flexibly extended as far as environmentalanalysis can go.21. Plater, Environmental Law as a Mirror of the Future, 23 B.C. Envtl. Aff. L. Rev. 733 (1996).22. 272 Atl. 76 (Sept. 1993).


from the bottom, from a narrow, incisive, specialized focus. Several strategy reports pre-pared by the U.S. Environmental Protection Agency23 argue that EPA should coordinate allprotection strategies on the basis of a “systems approach” that views the environment as anintegrated whole. The proposal has global implications, which are considered in the lastchapter of this book. Perhaps ironically, however, the rest of the EPA report was organizedon a medium-by-medium approach—air, water, toxics, noise, land use, and so on. Is it prac-tically inevitable that bureaucrats, legislators, lawyers, litigants, and humans generally willfocus on narrow slices of the environmental dilemma? In an increasingly specialized world,how do we keep our eyes open to the whole?

6. Sustainability. Modern environmentalism seeks to implement the concept of“sustainability”—a truly conservative doctrine—as its societal goal.24 It’s a hopeful concep-tual approach, holding that thoughtfulness, planning, and luck will enable successive futuregenerations of humankind to sustain and improve our society’s collective quality of life inthis global setting that supports us. As Professor Dernbach has noted, environmentalism hasproactive goals that range far beyond mere defensiveness.

We often say that the purpose of environmental law is to protect the environment. But it ismuch more complicated than that. To begin with, environmental law has never beenaimed simply at protecting the environment. Environmental law has at least nine majorpurposes,25 the most prominent of which is protection of human health. Environmentallaw also has objectives that are plainly essential to sustainable development, includingintergenerational equity and protection of the resource base upon which society rests.Other goals of environmental law include efficiency, national security, preservation foraesthetics or recreation, community stability, biocentrism, and pursuit of scientificknowledge and technology.... Sustainable development concepts are embedded inenvironmental law. Th[ose] nine purposes of environmental law can be organized underthe four broad goals of Sustainable Development: Social Well-being, or Equity,...NaturalResources Protection,...Economic Development,...Peace and Security.26

b. Three Economies: An Environmental Economics Perspective

A fundamental theme and force in shaping national environmental law, as in most ofmodern life, is economics. That word comes from two Greek words: oikos, meaning “house-hold, home, or family place,” and nomos, meaning “rules.” Thus economics literally means“the rules governing the human household.” Economics could be considered to include thefull range of concerns covered by environmental law itself.27

Economics usually is given a narrower reach, evoking solely the concerns of the market-place or the market economy. But consider a useful new analytical perspective: three econo-mies. To understand modern societal dynamics, it is helpful to conceptualize three differentintersecting economies: (1) the familiar industrial-commercial marketplace economy and all

23. L. Thomas, Environmental Progress and Challenges: EPA Update (1988).24. “Sustainability” has become the central principle of the international consensus first enunciated in Our Com-mon Future, the 1987 Report of the World Commission on Environment and Development, echoed since then inthe 1992 and 2002 Earth Summits and a succession of international and domestic declarations of policy and law.The concept makes intuitive good sense despite its susceptibility to varying interpretations.25. C. Campbell-Mohn, Objectives and Tools of Environmental Law, in Environmental Law: From Resources toRecovery §4.1 (C. Campbell-Mohn et al, eds., 1993).26. Dernbach, Citizen Suits and Sustainability, 10 Widener L. Rev. 503 (2004).27. On the other hand, the derivation of the word ecology connotes a far broader realm—oikos again for “home” inthe broad figurative sense and logos, which means “word” in a sense connoting an all-encompassing sense ofthoughtful reckoning narrative, an idea of law and deepened appreciation of reality. As Garrett Hardin wrote, it’secology that should be the meta-discipline, with economics as just one of its subsidiary parts. “Logically it is obviousthat economics is but a small specialty in the much larger science, ecology. Sociologically, it is quite otherwise: thetail wags the dog.” G. Hardin, Sweet-Singing Economists, Exploring New Ethics for Survival: The Voyage of theSpaceship Beagle ch. 9 (1972).


the structures that support it; (2) a separate economy of natural systems; and (3) a human-oriented, civic-societal economy comprised of all the societal values, capital, institutions,and infrastructure not included in the marketplace.28

Since the human marketplace economy, broadly defined, generates virtually all environ-mental problems, environmental law is understood as a comprehensive attempt to controland guide the dynamics of the marketplace economy on behalf of the other two economies.The three-economies construct provides a useful way to talk about an array of long-established concepts of environmental law (and public policy generally), integrating ananalysis of societal necessities and ecological realities with the powerful machinery of mar-ket dynamics.29

Figure 2 offers a schematic view of the three economies. The marketplace economy is thedynamic central core of the three economies’ cosmology. It is systematically blind, however, tomany important economic elements.For the most part, the marketplaceeconomy deals only with things andservices that have a price tag and arebought and sold. It generates waste andexternalities as well as profits andproducts, costs and benefits that arereal and need to be included as part ofsocietal economic accounting.

The natural economy is the intri-cate system of living and geophysicalsystems that sustains dynamic plan-etary processes, providing resourcesand a geophysical base for the humaneconomies. The economy of naturegives and takes, and adjusts as best itcan to the marketplace’s pollution,resource derogation, and disruptedecosystem dynamics, while passing theeffects of many of these externalityimpacts onward into the civic economy.The marketplace economy exists withinthe economy of nature, which hashugely significant value to humanseven if it is unacknowledged or under-valued by the cash-register economy.30

Obvious as this may seem, noteveryone sees it. While he was SeniorEconomist at the World Bank, HermanDaly participated in developing areport on Development and the Environment—

28. This idea builds on the work of Joseph L. Sax, who argued that environmental law should recognize an economyof nature as well as the marketplace economy. Sax, Property Rights and the Economy of Nature, 45 Stan. L. Rev.1433 (1993). See also M. Sagoff, The Economy of the Earth (1988), and the work of a respected consultant on fish-eries management policy based in Sequim, Washington, James Lichatowich, “It’s the Economies, Mr. President,” 34Trout 22 (Summer 1993). Sax uses the phrase “transformative economy” for marketplace economics; Lichatowichuses “industrial economy.”29. For more on the three economies, see Plater, Environmental Law and Three Economies, 23 Harv. Envtl. L. Rev.359 (1999); Plater, The Three Economies: An Essay in Honor of Professor Sax, 25 Ecology L.Q. 411 (1998).30. See Costanza and other economic assessments noted above.


The chief economist of the World Bank, Lawrence H. Summers [currently financial advisorto President Obama] under whom the report was being written, happened to be on a con-ference panel at the Smithsonian Institution discussing the book Beyond the Limits [DonellaH. Meadows, et al.] which Summers considered worthless. In that book there was a diagramshowing the relation of the economy to the ecosystem, a diagram exactly like...one I hadsuggested [at the World Bank].... During the question-and-answer time I asked the chiefeconomist if, looking at that diagram, he felt that the question of the size of the economicsubsystem relative to the total ecosystem was an important one, and whether he thoughteconomists should be asking the question, “What is the optimal scale of the macro economyrelative to the environment?” His reply was immediate and definite: “That’s not the rightway to look at it.”31

But beyond linking market economy to the economy of nature we believe that economicanalysis, in order to be fully realistic, requires a third conceptual economy. The images thatlaunched the environmental law revolution in the 1960s were of pollution directly impact-ing upon human health. The “civic-societal economy”32 comprises actual social costs, ben-efits, resources, energy, inputs, outputs, values, qualities, and consequences that are notaccounted for in the marketplace but impact human society. Externalized costs exit the mar-ketplace economy, but don’t thereby drop into oblivion: By the laws of physics, ecology, andlogic they move through and are internalized into the fabric of one or both of the othereconomies. Widespread pesticide use, overgrazing, dumping pollutants, chemical expo-sures that block hormones in our endocrine and reproductive systems, massive layoffs of cor-porate workers, or a host of other cost externalizations may make powerfully good sense tomarket players in the narrow market terms of individual gains but be quite irrational in soci-etal economics terms. Healthy societal economic systems are founded upon healthy and sus-tainable ecological system cycles of soil, water, air, and living communities. When a resourcesystem is derogated or destroyed, some enterprises may prosper greatly, but society is likelyto be far less well off. The societal public economy very much needs the market economy,but for the sake of its own short- and long-term interests, society must somehow contrive tovalue and incorporate into its governance important elements of civic economic reality thatthe daily dominant marketplace resists. Toxic spills into watercourses, global warming, lostfisheries, eroded soils, wetlands destruction, pesticide loading, and a multitude of otherenvironmental issues demonstrate important linkages between all three economies.

Where are law and government in the three economies? Many government statutes,agencies, and programs are initiated to protect civic-societal interests. In Figure 2, govern-ment is strategically positioned in a schematic circling band at the interface between thecivic-societal economy and the marketplace economy. Statutes and regulatory systems aredesigned to monitor and mediate the dysfunctional impacts of the marketplace economyupon the other two spheres. Public law can lapse and veer, but, like environmental commonlaw, it remains a major element in the interplay of the three economies.

Economic and legal analyses that do not consider civic-societal economics or theimpacts of natural economics on society are naïvely or disingenuously narrow, ignoringsubstantial realities that inevitably are felt by society. The competent practice of both eco-nomics and environmental law (not to mention rational democratic governance) implicitlyincorporates and requires an understanding of the reality and interdependence of all threeeconomies.

31. H. Daly, Beyond Growth: The Economics of Sustainable Development 6 (1997). For a superb quick tour of allthe significant economic elements of modern environmental policy, the authors strongly recommend an article byPaul Krugman, Building a Green Economy, N.Y. Times Magazine at page MM 34, April 11, 2010, available at http://www.nytimes.com/2010/04/11/magazine/11Economy-t.html.32. Could someone please come up with a less awkward name for this? We’d be grateful.


c. Environmental Ethics

Aldo Leopold, A Sand County Almanac129–130, 203, 224–225 (1968 ed.)

THINKING LIKE A MOUNTAIN... Only the mountain has lived long enough to listen objec-tively to the howl of a wolf.... My own conviction on this score dates from the day I saw a wolfdie. We were eating lunch on a high rimrock, at the foot of which a turbulent river elbowedits way. We saw what we thought was a doe fording the torrent, her breast awash in whitewater. When she climbed the bank toward us and shook out her tail, we realized our error: itwas a wolf. A half-dozen others, evidently grown pups, sprang from the willows and all joinedin a welcoming mêlée of wagging tails and playful maulings. What was literally a pile ofwolves writhed and tumbled in the center of an open flat at the foot of our rimrock.

In those days we had never heard of passing up a chance to kill a wolf. In a second wewere pumping lead into the pack, but with more excitement than accuracy.... When our rifleswere empty, the old wolf was down, and a pup was dragging a leg into impassable slide-rocks.We reached the old wolf in time to watch a fierce green fire dying in her eyes. I realized then,and have known ever since, that there was something new to me in those eyes—somethingknown only to her and to the mountain. I was young then, and full of trigger-itch; I thoughtthat because fewer wolves meant more deer, that no wolves would mean hunters’ paradise.But after seeing the green fire die, I sensed that neither the wolf nor the mountain agreedwith such a view....

THE LAND ETHIC... There is as yet no ethic dealing with man’s relation to land and to theanimals and plants which grow upon it.... The extension of ethics to this...element in humanenvironment is, if I read the evidence correctly, an evolutionary possibility and an ecologicalnecessity.... The “key-log” which must be moved to release the evolutionary process for anethic is simply this: quit thinking about decent land-use as solely an economic problem.Examine each question in terms of what is ethically and esthetically right, as well as what iseconomically expedient. A thing is right when it tends to preserve the integrity, stability, andbeauty of the biotic community. It is wrong when it tends otherwise.

An Environmental Ethic Beyond Utilitarianism? Leopold’s lyrical ecology hasinspired generations of environmental scientists and a vigorous ongoing ethical debate.Isn’t the environment more than a commodity and medium for human designs? Shouldn’tthere be a recognized moral and ethical standard extending beyond pure human self-interest, recognizing the normative rights of the planet and of nature itself? It’s true, ofcourse, that many environmentalists (like most chapters of this book) do indeed focus onutilitarian arguments for environmental quality: Basic human self-interest, health, and eco-nomics should force society not to ignore ecological consequences. Even Leopold himself isambiguous. He continues the wolf-killing story by showing how wolves are important forcontrolling populations of deer and other foraging animals that otherwise would strip theforests bare and turn cattle ranges to dustbowls. When he later criticizes current land usepolicy because “it assumes, falsely, I think, that the economic parts of the biotic clock willfunction without the uneconomic parts,” he is again making a utilitarian argument.

But the fire dying in the she-wolf’s eyes, that is something else.Could it be that humans are not indeed the measure of all things? Are we instead only

one part of a larger ecological community, with responsibilities accompanying our


undoubted powers and rights? Is there, in other words, a moral-legal basis for environmen-talism beyond utilitarianism? This question increasingly reappears in environmental lawcases. When a project is stopped because it threatens extinction for some endangeredinsect or a court considers awards of natural resource damages for ecosystems destroyedby oil spills, the law must reach beyond the normal justifications founded upon nethuman benefit.

Should we declare that the wolf herself has legal rights, rights that, although not abso-lute, must nevertheless be substantively weighed in the legal process? Impressive work hasbeen devoted to animal rights and natural rights theories.33 Nagging problems arise, how-ever, in drawing lines. Is sentiency the litmus? If not, shouldn’t plants, rocks, and hills as wellbe able to claim these rights?34 Unless the broader view prevails, the ethic ignores the rightsof ecosystems. If natural rights can be defined, moreover, who defines them and determineswhen and how they are to be applied and weighed against human rights and the rights ofother entities in the system?

Taking another approach, can it be argued that there is a God who commands ecologi-cal sensitivity? Many have criticized the Bible’s call for humans to conquer nature:

Be the terror and dread of all the wild beasts and all the birds of heaven, of everything thatcrawls on the ground and all the fish of the sea; they are handed over to you.... Teem overthe earth and be lord of it. Genesis 9:1-2, 7.35

But other strands in Judeo-Christian theology and other religious cultures cast humansin a less domineering role. Primitive humans were probably animists. The mountains andrivers had spirits, and humans spoke with the trees and animals they were about to kill fortheir use. In many Eastern and Native American36 cultures, gods are intimately linked withnature; humans are merely a part of the web, the Tao. Human disruption of nature isdeplored as having destroyed “the age of perfect virtue, when men lived in common withbirds and beasts, as forming one family.”37 The Dalai Lama, speaking of his Buddhism, said“We have always considered ourselves as part of our environment.”38 The great Jewish phi-losopher Maimonides dramatically recanted his early Greek-inspired view of human pri-macy: “It should not be believed that all things exist for the sake of the existence of man. On

33. See R. Nash, Rights of Nature: A History of Environmental Ethics (1989); H. Rolston, Environmental Ethics:Duties to and Values in the Natural World (1988); R. Nozick, Anarchy, State and Utopia 35-42 (1975); S. Wise,Science and the Case for Animal Rights (2003); and the active literature of environmental ethics including the jour-nal Environmental Ethics.34. See C. Stone, Should Trees Have Standing? (1972). Cf. the view from the self-styled “Wise Use” movement,noted further at the end of the next section: “Environmentalism is the new paganism, trees are worshipped andhumans sacrificed at its altar.... It is evil...and we intend to destroy it.” Ron Arnold, chairman of the Center for theDefense of Free Enterprise, Boston Globe, Jan. 13, 1992.35. Calvin and many other Christian theologians have argued that God “created all things for man’s sake.” Insti-tutes of Religion 182; bk.1, chs. 14, 22 (Battles ed., 1961); see generally J.A. Passmore, Man’s Responsibility forNature (1974).36. “Human beings are not superior to the rest of creation. If human beings were to drop out of the cycle of life, theearth would heal itself and go on. But if any of the other elements would drop out—air, water, animal or plantlife—human beings and the earth itself would end.” Audrey Shenandoan, Onondaga tribe, N.Y. This echoes the“Gaia” hypothesis that the planet Earth itself is a living, self-regulating organism; disruptions will modify the sys-tem, and life as we know it may disappear, though the planet will ultimately strike a new balance. J. Lovelock, TheAges of Gaia (1988); A. Miller, Gaia Connections (1991). In this sense, the planet Earth may not be so “fragile.”37. Chuang Tsu, 4th c. B.C., in Passmore, note 35 above, at 7-8. “When humans interfere with the Tao, the skybecomes filthy, the equilibrium crumbles, creatures become extinct.” Lao-tzu, Tao Te Ching (500 B.C.).38. He continues, “Our scriptures speak of the container and the contained. The world is the container—ourhouse—and we are the contained—the contents of the container.... As a boy studying Buddhism I was taught theimportance of a caring attitude toward the environment. Our practice of nonviolence applies not just to humanbeings but to all sentient beings.... In Buddhist practice we get so used to this idea of nonviolence and the endingof all suffering that we become accustomed to not harming or destroying anything indiscriminately. Although wedo not believe that trees or flowers have minds, we treat them also with respect. Thus we share a sense of universalresponsibility for both mankind and nature.” H.H. the 14th Dalai Lama & G. Rowell, My Tibet 79-80 (1990).


the contrary, all the other beings, too, have been intended for their own sakes and not forthe sake of something else.”39

Christianity, whose God became human, has been more resistant to the diminution ofhuman-centeredness. The Protestant ethic, when it appeared, fit nicely with the IndustrialRevolution’s conquest of nature. Fundamentalist Christians’ resistance to the notion thathumans evolved as part of the natural world demonstrates a continuing need to see humansas separate and distinct from nature. But others can now read the Old Testament, particu-larly the Noah story, as affirming the sanctity and uniqueness of every living species and set-ting humans the task of preserving the earth’s natural heritage. Some Christian scholarshipurges an active ethic of human “stewardship” over all Creation.40 These theological debatesbetween human-centered and more interrelational metaphysics have been paralleled in thedialogues of nonreligious philosophy as well.41

Without a clearly divine or natural source of a moral ethic for the environment, the ethic,if it is to exist, must come from humans. Much of any human-based environmental ethic, ofcourse, will continue to be based on utilitarianism—if we want our species’ descendants tosurvive on the planet, we must take the sensitive, cautious long view. But beyond self-interest,further distinctions can extend the ethic. We may indeed currently be the dominant specieson the earth, possessing earth-changing knowledge, technology, and physical powers, butalong with these powers may come ethical responsibilities. Perhaps these are responsibilitiesto past generations and to the future, to steward and pass on the extraordinary legacy wehave received. A classic legal algorithm holds that for every power there is a countervailingresponsibility. The ability to destroy surely does not carry with it the moral right to do so,tempered only by the limitations of self-interest against self-inflicted wounds. That would betoo primitive a norm for a species that has been maturing for 2 million years.

From the fact of human intellectual development come other bases for an environmen-tal ethic. On one hand are the arguments that proceed from our superiorities, like the claimfor an ecological noblesse oblige—because we humans uniquely have been able, in somesettings at least, to move beyond the bare demands of food, shelter, and survival to build anabstract culture and to understand the effects of our actions upon the planet, our species hasa high calling to protect the less powerful parts of the ecological community in which welive. Aesthetic principles, also a unique human development, likewise argue for anextended stewardship.

On the other hand lie the arguments from humility. The more one knows, the more onerealizes one does not know. The greater the expansion of our knowledge and technology, thevaster the realm of the unknown. When we look into the she-wolf’s eyes with Leopold, someof what we feel may be anthropomorphic sympathy. But the fire dying there may also sparka recognition that we will never know the world she knows, and that should make us hesitantto make ourselves the measure of it all. Ultimately humans may be impelled to honor anenvironmental ethic protecting the planet’s ecology for the same reason that they areimpelled to climb Mt. Everest: because it is there. The very existence—the “is-ness”—of thewolf and her rivers and mountains, separate from humans, makes the ethic fitting andproper for recognition.

When the question arises, as it continually does in legislatures and agencies, courts, andsaloons, “Why protect such-and-such particular part of the environment?” environmental-ists undoubtedly will continue to argue practically, “Because it may turn out to be important

39. See Passmore, note 35 above, at 12.40. Fellows of the Calvin Center for Christian Scholarship, Earthkeeping: Christian Stewardship of NaturalResources (1980); P. Riesenberg, The Inalienability of Sovereignty in Medieval Political Thought (1956), exploresmedieval concepts of human (and royal) stewardship.41. Goethe and Henry More were early outposts in the resistance to the human-centeredness of Bacon, Descartes,and even Kant. See generally Passmore, note 35 above, at 16-23.


to us or to hurt us if we lose it.” But often, when the setting and the light are right, won’tmany of us also feel a further pull, coming from something more than the stark counsels ofdaily human utility?


1. The public trust doctrine. This preceding mix of ethical and practical reasoning isalso incorporated within the public trust doctrine. The public trust, studied later in Chapter20, is a potentially powerful legal doctrine derived from ancient principles that echo envi-ronmental law’s current mantra of “sustainability.” Society must protect certain resourcesthat are owned by humankind through the generations, a legacy received from the past to bestewarded in the present and assured for the future. As Emperor Justinian declared, “By thelaw of nature, these things are common to humankind: the air, running water, the sea,and...the shores of the sea....”42 Further public trust rights have been acknowledged over theyears—in wildlife, in parks, even in fossils and human cultural artifacts. The public trustdoctrine includes both the utilitarian perspective that protecting the environmentprotects human health and welfare, and further resource protections that go beyond stricthuman utility.

2. Beyond strict utility. The public trust doctrine’s direct human utilitarianism isevident when it is applied to protect the quality of drinking water43 or public access to a river,harbor, or beach. Why is it, however, that environmental law protects groundwater aquifersfrom pollution even if they may never be used by anyone and are not connected to other waterbodies? Why do we protect endangered species even when we are virtually certain a particu-lar species will never have any human usefulness? Why do we protect clean environmentsagainst minor lowering of air or water quality when some polluting development projectscould generate huge economic profits with no danger of reaching the maximum legal levelsof harm to health or property?44 Why do we try to make strip miners in the mountains ofAppalachia restore hillsides to pre-mining conditions, when the cost of remediation is tentimes the market value of the land per acre before or after the restoration? Protecting a pris-tine waterfall, an endangered species, a unique prairie, or a wilderness virgin grove of treesin the face of commercial development apparently serves some further societal objectives.How and why does the law assert abstract “legacy” values in addition to utilitarian environ-mental goals that protect human welfare? The answer in U.S. law, and in emerging interna-tional law doctrines such as “intergenerational equity” and the “common heritage ofhumankind,” as we will see, lies in the public trust doctrine.

Environmental law generally has drawn upon standard preexisting legal tools and doc-trines to build a body of law incorporating its new perspective, but the public trust doctrineis an exception. It is environmental law’s own special ancient and innovative contribution toour legal system.

42. Institutes of Emperor Justinian, 2.1.1 (A.D. 529).43. See Tenn. Code Ann. §§70.324 et seq. (Tennessee Water Pollution Control Act, expressly incorporating theauthority of the public trust).44. PSD rules have been instituted in a number of areas for the “prevention of significant deterioration.”


B. THE PROBLEM OF THE COMMONS

Fortunately or unfortunately, much of the natural world is a commons—air, water,wildlife—which puts it on a collision course with dynamics of human behavior that are basedon individually based rational choices.

Garrett Hardin, The Tragedy of the Commons162 Science 1243, 1243–1248 (1968)

The tragedy of the commons develops this way. Picture a pasture open to all. It is to beexpected that each herdsman will try to keep as many cattle as possible on the commons.Such an arrangement may work reasonably satisfactorily for centuries because tribal wars,poaching, and disease keep the numbers of both man and beast well below the carryingcapacity of the land. Finally, however, comes the day of reckoning, that is, the day when thelong-desired goal of social stability becomes a reality. At this point, the inherent logic of thecommons remorselessly generates tragedy.

As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly,more or less consciously, he asks, “What is the utility to me of adding one more animal to myherd?” This utility has one negative and one positive component:

1. The positive component is a function of the increment of one animal. Since theherdsman receives all the proceeds from the sale of the additional animal, thepositive utility is nearly +1.

2. The negative component is a function of the additional overgrazing created byone more animal. Since, however, the effects of overgrazing are shared by all theherdsmen, the negative utility for any particular decision-making herdsman isonly a fraction of −1.

Adding together the component partial utilities, the rational herdsman concludes thatthe only sensible course for him to pursue is to add another animal to his herd. And another;and another.... But his is the conclusion reached by each and every rational herdsman shar-ing a commons. Therein is the tragedy. Each man is locked into a system that compels himto increase his herd without limit—in a world that is limited. Ruin is the destination towardwhich all men rush, each pursuing his own best interest in a society that believes in the free-dom of the commons. Freedom in a commons brings ruin to all.

Some would say that this is a platitude. Would that it were! In a sense, it was learned thou-sands of years ago, but natural selection favors the forces of psychological denial. The indi-vidual benefits as an individual from his ability to deny the truth even though society as awhole, of which he is a part, suffers. Education can counteract the natural tendency to do thewrong thing, but the inexorable succession of generations requires that the basis for thisknowledge be constantly refreshed....

In an approximate way, the logic of the commons has been understood for a long time,perhaps since the discovery of agriculture or the invention of private property in real estate.But it is understood mostly only in special cases which are not sufficiently generalized. Evenat this late date, cattlemen leasing national land on the western ranges demonstrate no morethan an ambivalent understanding, in constantly pressuring federal authorities to increasethe head count to the point where overgrazing produces erosion and weed dominance. Like-wise, the oceans of the world continue to suffer from the survival of the philosophy of thecommons. Maritime nations still respond automatically to the shibboleth of the “freedom of

25B. The Problem of the Commons

the seas.” Professing to believe in the “inexhaustible resources of the oceans,” they bring spe-cies after species of fish and whales closer to extinction....

POLLUTION... In a reverse way, the tragedy of the commons reappears in problems of pol-lution. Here it is not a question of taking something out of the commons, but of puttingsomething in—sewage, or chemical, radioactive, and heat wastes into water; noxious anddangerous fumes into the air; and distracting and unpleasant advertising signs into the lineof sight. The calculations of utility are much the same as before. The rational man finds thathis share of the cost of the wastes he discharges into the commons is less than the cost of puri-fying his wastes before releasing them. Since this is true for everyone, we are locked into asystem of “fouling our own nest,” so long as we behave only as independent, rational, free-enterprisers.

The tragedy of the commons as a food basket is averted by private property, or some-thing formally like it. But the air and waters surrounding us cannot readily be fenced, and sothe tragedy of the commons as a cesspool must be prevented by different means, by coercivelaws or taxing devices that make it cheaper for the polluter to treat his pollutants than to dis-charge them untreated. We have not progressed as far with the solution of this problem aswe have with the first. Indeed, our particular concept of private property, which deters usfrom exhausting the positive resources of the earth, favors pollution. The owner of a factoryon the bank of a stream—whose property extends to the middle of the stream—often has dif-ficulty seeing why it is not his natural right to muddy the waters flowing past his door. Thelaw, always behind the times, requires elaborate stitching and fitting to adapt it to this newlyperceived aspect of the commons.

The pollution problem is a consequence of population. It did not much matter how alonely American frontiersman disposed of his waste. “Flowing water purifies itself every 10miles,” my grandfather used to say, and the myth was near enough to the truth when he wasa boy, for there were not too many people. But as population became denser, the naturalchemical and biological recycling processes became overloaded, calling for a redefinition ofproperty rights.

HOW TO LEGISLATE TEMPERANCE?... The laws of our society follow a complex, crowded,changeable world. Our epicyclic solution is to augment statutory law with administrative law.Since it is practically impossible to spell out all the conditions under which it is safe to burntrash in the back yard or to run an automobile without smog-control, by law we delegate thedetails to [agencies]. The result is administrative law, which is rightly feared for an ancientreason—Quis custodiet ipsos custodes?—“Who shall watch the watchers themselves?”... Admin-istrators, trying to evaluate the morality of acts in the total system, are singularly liable to cor-ruption, producing a government by men, not laws.

Prohibition is easy to legislate (though not necessarily to enforce); but how do we legis-late temperance? Experience indicates that it can be accomplished best through the media-tion of administrative law.... The great challenge facing us now is to invent the correctivefeedbacks that are needed to keep custodians honest. We must find ways to legitimate theneeded authority of both the custodians and the corrective feedbacks....

MUTUAL COERCION MUTUALLY AGREED UPON... “Responsibility...is the product of defi-nite social arrangements.” The social arrangements that produce responsibility are arrange-ments that create coercion, of some sort. Consider bank-robbing. The man who takes moneyfrom a bank acts as if the bank were a commons. How do we prevent such action? Certainlynot by trying to control his behavior solely by a verbal appeal to his sense of responsibility.


Rather than rely on propaganda we...insist that a bank is not a commons; we seek the defi-nite social arrangements that will keep it from becoming a commons. That this wouldinfringe on the freedom of would-be robbers we neither deny nor regret....

To say that we mutually agree to coercion is not to say that we are required to enjoy it, oreven to pretend we enjoy it. Who enjoys taxes? We all grumble about them. But we acceptcompulsory taxes because we recognize that voluntary taxes would favor the conscienceless.We institute and (grumblingly) support taxes and other coercive devices to escape the hor-ror of the commons.

An alternative to the commons need not be perfectly just to be preferable.... But we cannever do nothing.... Once we are aware that the status quo is action, we can then compare itsdiscoverable advantages and disadvantages with the predicted advantages and disadvan-tages of the proposed reform, discounting as best we can for our lack of experience. On thebasis of such a comparison, we can make a rational decision which will not involve theunworkable assumption that only perfect systems are tolerable.

RECOGNITION OF NECESSITY... Perhaps the simplest summary of this analysis of man’spopulation problems is this: the commons, if justifiable at all, is justifiable only under con-ditions of low-population density. As the human population has increased, the commons hashad to be abandoned in one aspect after another.

First we abandoned the commons in food gathering, enclosing farm land and restrict-ing pastures and hunting and fishing areas.... Somewhat later we saw that the commons as aplace for waste disposal would also have to be abandoned. Restrictions on the disposal ofdomestic sewage are widely accepted in the Western world; we are still struggling to close thecommons to pollution by automobiles, factories, insecticide sprayers, fertilizing operations,and atomic energy installations....

Every new enclosure of the commons involves the infringement of somebody’s personalliberty. Infringements made in the distant past are accepted because no contemporary per-son complains of a loss. It is the newly proposed infringements that we vigorously oppose;cries of “rights” and “freedom” fill the air. But what does “freedom” mean? When men mutu-ally agreed to pass laws against robbing, mankind became more free, not less so. Individualslocked into the logic of the commons are free only to bring on universal ruin; once they seethe necessity of mutual coercion, they become free to pursue other goals. I believe it wasHegel who said, “Freedom is the recognition of necessity.”


1. Common resources, environmental damage, and the “rational maximizer.” Look-ing at the beleaguered cow pasture, Hardin’s central metaphor reveals a basic motivationdriving each human actor to add to the “tragedy”: Operating as self-contained individuals,all human actors instinctively seek to harvest and hold onto the maximum amount of ben-efits from their actions for themselves and pass as much of the negatives on to others. If envi-ronmental social costs can be passed on into the commons where they will not be clearlyvisible or traceable, the human actors who cause the negative consequences will not be easilycalled to account for them—thus the entrepreneurial tendency toward “externalization45 ofsocial costs.” What can be done to alter the calculus of those choosing to use the commons?

45. If an individual enterprise absorbs a cost, the cost payment is perceived as “internal” to its business. If it canpass it outside the business where it doesn’t have to pay for it, that’s “external.” The Nobel laureate Ronald Coaserelied on the rational actor concept underlying Hardin’s tragedy of the commons, that individuals are driven toexternalize costs.


Environmental law’s answer has been to seek accounting of those costs back to the peoplewho caused them—“reinternalization” of the costs, or the polluter-pays principle. If thepeople who are making harmful decisions have to pay for or physically remedy them, thetheory goes, over time they will cease their harmful activity or find a more efficient andbenign way of doing it.

2. Extrapolating to global scale. Does Hardin’s analysis apply beyond the cow pastureto the continental air masses or the oceans? The uses of all these commons are so diverseand diffuse that it is often difficult to demonstrate who is causing what effects. Those indi-vidual actions hurting the common resource may be invisible, diffuse, or unaccountable, butcumulatively they can be critical.

Hardin presents two basic scenarios to demonstrate the tendency toward “tragedy.” Oneis pollution of commons, where the private positive benefit is waste disposal and the exter-nalized cost is a cumulative decrease in resource quality. The second paradigm is overuse viaexploitation of the commons: the grass of the cow pasture, fish in the oceans. If users sufferthe losses as well as the benefits, their behavioral calculus will be quite different from anopen-access commons. Are there ways in which legal rules can be established to force a groupof users to act as a single owner would? The law has evolved in this way in several settings,including hydrocarbon development where the owners of land overlying an oil and gas for-mation are forced to “unitize” the field, extracting oil or gas as if they were a single ownerand then sharing the profits of the whole field. This results in greater total production andtherefore a greater total benefit to the class of owners than does the wasteful race to capturethe resource that occurs in the absence of legally coerced collective action. Some industryadvocates have therefore argued that other resources—national forests, fish stocks, mineralson public lands, even national parks—should be “privatized,” turned over to single corpo-rate ownership for the sake of efficiency.

Many environmental problems, such as pollution and global warming, are of a scale thatrefutes privatization.46 The difficulty of the grand scale lies in discovering the true measureof public costs and what controls may avert the logic of the tragedy, a problem that isnowhere more difficult than in the area Hardin targeted, global population control. Envi-ronmental law addresses many different problems of cumulative effects in a wide variety ofways, at different scales. The behavioral logic of the tragedy of the commons, however, per-meates virtually all environmental issues.

3. John Locke and a political philosophy of the tragedy of the commons. UnderLockean political theory, if we lived under Eden-like conditions of plenty, there would be nocompetition for resources, and property law would not be necessary because all desireditems would be sufficiently abundant. With increasing populations and limited resources,however, a means for allocating available goods had to be found. To Locke, the institutionof exclusive individual property fit nicely with his sense of the order of God’s universe andalso responded to social needs.47 Private property induces people to work by granting themownership of all or some of the fruits of their labors. Nonexclusive rights to property fail toproduce work incentives. Like the rational choice theories of modern economics, Lockepresumed that human actors generally act in their own rational self-interest. For privateproperty’s relationship to a commons, this means that owners will do whatever willmaximize their benefits in regard to their own property, and that means passing off thenegatives. Externalized costs don’t disappear into a vacuum, however, and have serious

46. It should be noted, however, that the Coase Theorem is based on a sort of privatization proposition: that, forefficiency purposes, plenary rights to pollute could be transferred to polluters, thereafter leaving it up to “consum-ers” of pollution to try to bargain in the marketplace for the amount of clean air they desired.47. For a more thorough discussion of John Locke’s view of private property, see Sanders, The Lockean Proviso, 10Harv. J.L. & Pub. Pol’y 401 (1988).


accumulated public consequences that can end up dwarfing the short-term private logicthat spawned them.

4. The pessimism and optimism of the commons. Does Hardin seem too optimisticabout the chances for reforming the tragedy of the commons? Some who have consideredthe matter find Hardin’s view—that necessity will induce us to accept protections based on“mutual coercion, mutually agreed upon”— grossly over-optimistic. See W. Ophuls, Ecologyand the Politics of Scarcity 145-165 (1977). At the opposite pole are the “cornucopialists.”Susan Cox, for example, argues that problems of the commons are not of the magnitude thatHardin fears, and humans will always find new resources and technologies to cope. In herassessment, society has adequately managed such problems throughout the ages, with themajor lapses coming only in times of cultural shifts. See Cox, No Tragedy of the Commons,7 Envtl. Ethics 49 (1985).

5. The commons and positive outcomes. How do you decide what things should bemaintained in common ownership rather than being reduced to a form of exclusive privateproperty? As Professor Carol Rose writes:

The right to exclude others has often been cited as the most important characteristic of pri-vate property. This right, it is said, makes private property fruitful by enabling owners tocapture the full value of their individual investments, thus encouraging everyone to puttime and labor into the development of the resources. Moreover, exclusive control makes itpossible for owners to identify other owners, and for all to exchange the fruits of their laborsuntil these things arrive in the hands of those who value them most highly—to the greatcumulative advantage of all.48

What kinds of things are better suited to public ownership and communal use? ProfessorRose cites public libraries and public highways as examples of successful commons. What oflakes and rivers? Forests? Antarctica?

6. Measuring sustainability. Another fundamental problem with the commons isdefining the level of sustainability. It isn’t easy to define the point where cows exceed the sus-tainable carrying capacity of the commons. It’s far harder to define the acceptable level ofimposition on a common resource such as air or water (“assimilative capacity”) or an oceanfishery. Is anything less than purity a negative burden on the commons? What constitutes tol-erable depreciation, and what constitutes Hardin’s downward spiral to disaster? The differ-ent approaches to defining and setting appropriate environmental standards are the subjectof the chapters in Part IV of this coursebook.

7. Law as mutual coercion. Assuming that much of the commons paradigm is relevantto analyzing environmental policy, note how Hardin sets up a critical role for the law butdoesn’t specify its operation. If nonmandatory policies or physical privatization are unlikelyto work on a pollution commons (are they?), what kinds of legal intervention are likely to beeffective and appropriate to avoiding the tragedy of the commons? Criminal sanctions,taxes, individual lawsuits, administrative bureaucracies?

8. The Coase Theorem. One influential argument holds that law’s purpose here is tocreate property rights that are capable of being traded via market exchange. The famousarticle by Nobel laureate Ronald Coase argues that—assuming the reality of a universal ten-dency to externalize costs—the same outcomes will be reached, through bargaining startingfrom a clear legal rule of entitlement, irrespective of which of two different parties holds thelegal entitlement. See The Problem of Social Cost, 3 J.L. & Econ. 1 (1960). Coase’s demon-stration relies on assumptions about equal resources, equal access of all participants to infor-mation, and the absence of transaction costs. Is bargaining toward an efficient solution likelyto be easy when a large number of parties are joint holders of a legal right, as in the case ofa commons used and enjoyed by many? The difficulties of organizing groups of pollution

48. Rose, The Comedy of the Commons, 53 U. Chi. L. Rev. 711, 711-712 (1986).


victims to bargain collectively (a form of “transaction costs”) poses one problem. Would thebargaining go better if the initial legal right were assigned to the polluter? If that is the case,might some members of the group choose to become “free riders,” refusing to participate inthe belief that they will be able to reap the shared benefit without active participation? SeeFarnsworth, Do Parties to Nuisance Cases Bargain After Judgment? A Glimpse Inside theCathedral, 66 U. Chi. L. Rev. 373 (1999)(an empirical study of 20 “Coasian” lawsuits inwhich parties to nuisance cases refused to bargain with their adversaries after a legal judg-ment, as a result of the enmity between the parties and their conviction that legal entitle-ments were not an appropriate subject of bargaining).

9. The view from “free market” advocates. Juxtaposed against an environmental eco-nomics overview is the traditional view of nature as a resource base for dynamic humanenterprise. This marketplace logic of industrial and development interests casts resourceexploitation and pollution externalities in a far more upbeat light. Here is part of a mani-festo from the self-styled “Wise Use” movement:

Humans, like all organisms, must use natural resources to survive. This fundamental truthis never addressed by environmentalists.... To recognize the legitimacy of the human use ofthe earth would be to accept the unavoidable environmental damage that is the price of oursurvival. Once that price is acceptable, the moral framework of environmentalist ideologybecomes irrelevant and the issues become technical and economic.... The earth and its lifeare tough and resilient, not fragile and delicate. Environmentalists tend to be catastroph-ists, believing that any human use of the earth is “damage” and massive human use of theearth is “a catastrophe.” An environmentalist motto is “We all live downstream,” the view-point of helpless or vengeful victims. Wise-Users, on the other hand, tend to be cornuco-pians.... A Wise-Use motto is “We all live upstream,” the viewpoint of responsible andconcerned individuals....The only way we humans can learn about our surroundings is through trial and error.... Our

limitless imaginations can break through natural limits to make earthly goods and carryingcapacity virtually infinite. Just as settled agriculture increased goods and carrying capacity vastlybeyond hunting and gathering, so our imaginations can find ways to increase total productivityby superseding one level of technology after another.... Man’s reworking of the earth is revolu-tionary, problematic and ultimately benevolent.... R. Arnold, What Do We Believe?49

Where is the commons in this rhetorical context? The marketplace’s optimistic focus onthe ongoing achievements of human enterprise comes from a totally different way of seeingthe world, a perspective from which most environmental regulations based on ecologicaland civic concepts of the commons appear dismally negativistic, unnecessary, and obstruc-tive. Both perspectives cannot be right.

49. Arnold is a principal spokesman of the “Wise Use” movement and chairman of the Center for the Defense ofFree Enterprise, part of the marketplace coalition that attempted to roll back environmental regulation across theboard in the 104th Congress; text from www.cdfe.org/center-projects/wise-use/. Started in the late 1980s in the West,funded by mining, timber, grazing, and other environment-related industries, Wise Users created coalitions of localand regional groups loudly opposing federal environmental regulation. “Wise Use” is a slogan hijacked from theconservation creed developed by the eminent conservationist Gifford Pinchot, father of the Forest Service, whoused the phrase to emphasize the necessity of tighter sustainability restrictions on resource use.


C. A SALTY PARADIGM: ROAD SALT, A PROBLEM THAT HAS NOTYET MET ITS LEGAL PROCESS

The prosaic environmental controversy that follows has as yet hardly been noticed by thelegal system. It nevertheless illustrates a classic environmental law conundrum, with ele-ments that recur throughout the field.50 Readers in Snow Belt states are living in the midstof this exercise. For readers in Sun Belt states, it offers a bemusing and instructive opportu-nity to observe from a safe distance. The contaminant is highway de-icing salt, which in itsown ways can spread almost as widely as harmful chemicals, with some serious human effectsincluding even death.

Charles Wurster, Of Salt …New York Times, March 4, 1978, at A21

The use of salt on roads for snow and ice removal has increased in the years [since the early1960s]. About nine million tons, more than 10 percent of all salt produced in the world, areapplied annually to American highways in snowy states.

The benefits of salt for road de-icing—and its costs—are rarely questioned. A recentreport of the EPA, which weighed the costs and benefits of the practice, includes surprises.51

The costs of salting begin with $200 million for the salt and its application. Roadsidevegetation destroyed by salt, particularly shade trees, was estimated by EPA to add another$150 million. Underground water mains, telephone cables and electric lines are corrodedby salt seepage, adding another $10 million in damages. The Consolidated Edison Com-pany, which owns the world’s largest underground electrical system, estimated that road saltdid $5 million in damages during [a single] winter....

Salt finds its way into drinking-water supplies, especially ground-water aquifers, therebybecoming a health hazard. Recent research implicates salt intake as a causative factor inhypertension, heart disease and other circulatory problems, as well as various liver, kidneyand metabolic disorders. It is estimated that at least 20 percent of Americans should restrictsalt intake.

Individuals can control the salt that is added to foods, but salt in drinking water is harderto manage. About 27 percent of the drinking water supplies in Massachusetts are contami-nated with road salt, and New Hampshire has a state-financed system for replacing contami-nated wells. Long Island is especially vulnerable, since its sole drinking water is groundwater recharged by precipitation, including highway runoff.

The EPA estimated that 25 percent of the population in the Snow Belt drinks water con-taminated with road salt. The cost of providing pure water for these people was put at $150million, but no objective cost was ascribed to health damage.

50. Few environmental issues are as uncomplicated as the salt example—where easily identified externalities andself-interests sustain practices that tend to erode overall societal welfare, with the political context of our gover-nance system making it extremely difficult to change those dysfunctional practices even when the facts are clear.The current opponents of hydrogen-based energy innovations, usually representatives of the traditional coal, oil,and gas industry, echo the salt industry’s criticism of innovative de-icing alternatives. Coal, oil, and natural gas aredominant in the marketplace over environmentally more sustainable renewable energy sources in major partbecause so many costs are externalized, with both short-term social costs and long-term ecological risks (includingglobal climate change). They also have built up major subsidies that protect the price advantage of traditionalenergy companies, beginning with tax code provisions that give credits for resource depletion to less direct expen-ditures for national security policies that appear related to protecting access to sources of supply.51. EPA Document 600/2-76-105 (May 1976).

31C. A Salty Paradigm

Salt damages bridges and other highway structures, best exemplified by the deteriora-tion and collapse of New York City’s West Side Highway. Corrosion by salt is believed to havebeen a major cause of the failure. The EPA estimated the national annual cost of damage tohighway structures by salt at $500 million.

But the largest and most obvious cost of road salt is automobile corrosion, estimated bythe EPA at $2 billion annually, or an average of about $34 per car per year in the Snow Belt.Heavy salting of highways hastens auto depreciation by about 20 percent. Telephone com-pany vehicles last twice as long in the South as they do in New England.

Although they are usually assumed without question, the benefits of road salting haveproven elusive to substantiate. At temperatures near or slightly below freezing, salt hastensmelting and increases traction. But at lower temperatures, salt makes dry snow shiny andmore slippery, and causes it to stick on windshields hampering vision. Salt also prolongsstreet wetness, reducing the friction.

Solid evidence of increased safety is lacking.... Salt usually permits faster driving whichwould benefit emergency vehicles but is a mixed blessing for others. In snow, people tend todrive slowly and have “fender benders,” but after salt applications they tend to drive fasterand have more serious accidents. The benefits of salt in preventing accidents, if any, aresmall. Not surprisingly, this conclusion is disputed by the salt industry, which claims greatbenefits from its use.

An interesting benefit-cost analysis results. Whereas benefits are uncertain but appar-ently small (except to the salt and automobile industries), costs total nearly $3 billion peryear. Only a small amount of the cost is the salt itself, 93 percent consisting of indirect costs,borne especially by owners of motor vehicles.

Road salting should be re-examined. Reduced salting, combined with increased plow-ing, tire modifications, and driver education in snow driving might yield better results atlower costs.

The EPA report summarized by Dr. Wurster contains many other fascinating details:

• The State of Alaska manages to maintain its highways without any use of road salt.• The citizens of Michigan, leading the world in auto production, also lead in auto cor-

rosion, losing $198,630,000 each year in salt-caused depreciation, which almostmatches the total cost of salt application in the nation.

• Urban shade trees are vulnerable to salt and have substantial monetizable values52 (a15” diameter tree was valued at $1767; if a tree starts showing leaf damage from salt,it is beyond saving).

• So much salt has spilled into the Great Lakes that parts of the Lake Michigan depthsnow have a marine saltwater ecology, including marine fish such as flounder.

• Salt infiltrates through concrete and sets up a powerful pressure reaction with rein-forcing steel bars, causing overpass damage and potholes on roadways (as well as pit-ted sidewalks and crumbling concrete steps when applied by individuals forresidential use53).

• All things being equal, people favor the “bare pavement” look of salted roads becausethe visual impression is clearer than that of a scraped and sanded roadway.

52. The words monetized and marketized are used in this text in the informal sense of “having been attributed a mar-ket value,” not in the technical economics sense of converting to legal obligation.53. A consumer-protection vignette: Some salt manufacturers, marketing their product for residential de-iceing,label their product as “Safe for application to concrete and cement! when used as directed,” thereafter stating inthe directions’ fine print, “In order to avoid harm to concrete and cement, remove slush and moisture associatedwith this product within 30 minutes of application,” a caveat that practically nullifies the premise.


• Salt intake is a critical factor in many health afflictions including hypertension, car-diovascular diseases, renal and liver diseases, and metabolic disorders, with likelylinkages to increased mortalities, but no studies have focused on the widespreadeffects of highway salt on drinking water supplies.

• The report also notes that highway salt can be harmful to fish and wildlife but doesn’texamine these costs.

• The report makes extensive cost comparisons with a “scrape, sand, and selective salt-ing” alternative model. (The net cost of the unlimited salting model was almost twicethat of the restricted model.)

• The report doesn’t review any of the available salt substitutes for de-icing such asorganic CMA (calcium magnesium acetate).


1. Costs, economic and natural. Environmentalists and resource economists regularlyargue that the costs of a targeted proposal are far greater than the limited costs consideredby those who make the decision. Here from the EPA report are the (conservative) estimatesof some of the total yearly costs of road salting that can be monetarily quantified:54

ESTIMATED YEARLY COSTS

Salt Purchase & Application $ 200 millionHighway Structures 500 millionWater Supplies 150 millionVehicles 2,000 millionUtilities 10 millionVegetation 50 million

TOTAL: ca. $ 2.91 billion

This set of costs, of course, is not complete. The EPA report’s analysis completelyexcluded health costs, beyond a factor based on substitute drinking water supplies. Giventhe severe risks of heart disease posed by salt in water supplies, this would appear to be astrong candidate for heavy cost estimates and application of the “Precautionary Principle.”The report also excludes fish and wildlife and other environmental values, and excludes thecosts that occur in the production of salt, which typically include local water pollution frommine runoff and leachate.

The point, of course, is that most of these kinds of costs are hidden from direct publicview and not chargeable to the persons who decide to impose them. In societal terms thequestion should be: How many of these costs should rationally be considered as part of thesystemic decision to apply or continue applying salt? In operative terms, however, the actualquestion will be: How many of the salt costs listed above will have to be paid by the road com-missions that choose to use salt? If the answer is little or none, then those costs will receivelittle or no consideration.

2. Is salt an “environmental” problem? Highway salting causes harm to public health,vegetation, fish, and wildlife. But these are the areas least noted in the EPA report. They areindirect and difficult to quantify in money terms. They involve interconnected human and

54. All salt figures in the EPA report and the text discussion are given in 1976 dollars: Multiply all numbers byapproximately 5.4 to get approximate 2010 dollar figures. Since 1976, no comprehensive report has been issued toupdate these cumulative national cost estimates.


natural effects, are borne in small amounts by a large and dispersed range of recipients, andthe road salting decision that causes them is made on a narrowed basis that doesn’t considerthem. Doesn’t that sound like a typical “environmental” problem?

The nation’s road commissions’ calculus puts salt on the roads because, for them, it is acompletely logical benefit-cost-alternatives decision: They get the benefits of bare roads,55

paying only $200 million a year. But this marketplace decision ignores billions, at least 93%of the true costs seen by environmentalists, and ignores some far better alternatives.

Salting appears to be a classic example of a human decision thinking in terms of “one-shot” technology. Who wants to bother with thinking about where the salt goes after the zap?Out of sight, out of mind. Environmental science, however, reminds us that everything goessomewhere and has residual consequences. We will live in a natural system with those residu-als long after the ice and snow are gone.

3. Benefits. The classic environmental response to a proposal’s claimed benefits is todoubt them. The official decisionmakers in the marketplace have decided to go ahead fortheir own direct market reasons, but is it really necessary that the proposed project or pro-gram be done, or done in this particular way? In the case of highway salt, the environmentalargument would focus initially on the lack of proof of benefits from the “bare pavement”model. What is the value of a road that appears to be clear, especially if it retains an icy film?What is the value of faster-moving traffic, especially in light of the evidence that accidentson salted road systems are more likely to be fatal than the scrape-and-sand model’s “fender-benders”? The environmentalist would acknowledge the benefits of time saved and disrup-tions avoided by highway salting, but would argue that these benefits should be weighedagainst foreseeable costs to figure out how best to do the job. In practice, however, the deci-sion is made by highway commissioners whose intuitive judgment is that the “bare-pavement” result of salting is worth more to them than their own yearly $200 million cost ofbuying and applying salt—and that is the only calculus they consider. In this and other caseswhere valuation is difficult, moreover, the public tends to leave the calculations to officialadministrative discretion and the marketplace.

4. Available alternatives: CMA and more. The analysis of a proposal’s benefits andcosts is meaningless unless it is linked to a comparison of alternatives. Environmentalists canaccurately be regarded as narrow-minded negativists if they merely attack proposals withoutreviewing alternative courses of action. One alternative in every case, of course, is the “no-action” alternative. When developers planned to build a dam that would flood part of theGrand Canyon for power and water supply, environmentalists were able to show that thosebenefits were not needed at that time and place, in light of the social costs. The better optionwas to do nothing.

Often the analysis of alternatives turns upon whether the action can better take placewith a different design, location, timing, process, and so on. A particular factory might be abetter neighbor, for example, if it installed pollution-control mechanisms, used a highertemperature process, or located itself downwind. Beverage bottles would cause less litter andsave energy and raw materials if they were returnable. In Overton Park, the Memphis high-way case in Chapter 6, the citizens argued for location and construction designs that werefeasible and prudent alternatives to going through the middle of their park.

In the case of salt, the purpose of the proposed action—removal of snow from the high-ways so as to allow traffic to move—is clearly necessary. Only the most troglodytic environ-mentalist would argue that traffic should come to a halt when the snow falls. Rather, theanalysis should turn to a comparison of realistic alternatives. Installation of infrared electric

55. The highly specific traditional goal definition of highway agencies is to “achieve highway user satisfaction” interms of “mobility, productivity, and safety,” to this end using snow and ice treatments to avoid weather-caused road-way congestion and to “maintain core highway operations priorities.”


melting devices in highway pavements might be effective and avoid all the indirect costs ofsalting, but the direct costs would be outrageous.

Excellent alternatives to salt exist, however—salt substitutes with the same snow meltingcharacteristics as salt yet lacking its destructive characteristics. CMA (calcium magnesiumacetate), invented by Chevron, is a prime example.56 It can be made from readily availablematerials including recycled corn wastes or milk whey, it has none of the destructive effectsof salt, and in fact it actually rebuilds salt-damaged soils by replacing stripped magnesiumand calcium.57 In 1994 the State of Oregon made a generic switch to using de-icing chemi-cals including CMA based on an overall analysis of direct and indirect costs, with special con-sideration of corrosion effects and environmental effects, particularly to the state’sprotected salmon runs.58 Even ignoring the public health costs that were not accounted forin the EPA study, it appears reasonable that nonsalt alternatives such as CMA might realizesavings of almost $2 billion per year when compared with continued use of salt. This wouldbe true even if the direct costs for de-icing increased fivefold, from $200 million to $1 bil-lion. The actual overall public costs would still drop more than $1.9 billion.

CMA, however, costs the highway officials who budget for roads between $200 and$1000 per ton, as opposed to salt’s $20 to $70.59 “The problem,” says Chevron’s Dan Walter,“is that the benefit of CMA does not go back to the governmental agency that pays forde-icers, typically state maintenance departments. If a bridge on an interstate highway mustbe replaced, the federal government will pay 80% of the cost. Therefore the highway depart-ment cannot justify paying $600 per ton for CMA.”60 The way the commercial-political mar-ketplace is set up, no one and no forum is in a position to bring the overall public economicsto bear upon the operative decisions.

5. Should you believe us on highway salting? Shortly after this highway salting analy-sis was first published in the coursebook the authors received the following letter from Rich-ard L. Hanneman, president of the Salt Institute lobby, emphasizing a study released inJanuary 1992 concluding that CMA was not—or at least not yet—proved to be a sufficientlyeconomical substitute for highway de-icing to justify a switch away from road salt.61 Hanne-man concluded that –

There is a strong relationship between the application of de-icing salt and the prevention ofabout 80 percent of the fatalities and serious injuries that would otherwise occur on untreatedhighways.... Using highway de-icing salt may prevent huge numbers of tort recoveries, but it still(sic) might be of interest to aspiring attorneys....

56. Another benign alternative is potassium acetate, which has long been used as a de-icer for airport runways (andis FAA approved for that purpose), and on bridges and other areas especially sensitive to corrosion. Although potas-sium acetate has the same environmental benefits and risks as CMA, while often being less expensive, CMA has alarger share of the alternative market.57. See Horner & Brenner, Environmental Evaluation of Calcium Magnesium Acetate for Highway Deicing Appli-cations, 7 Resources, Conserv. & Recyc. 213 (1992).58. See D. Keep & D. Parker, Tests Clear Snow, Path for Use of Liquid Anti-icing in Northwest, Roads & Bridges(Aug. 1995), reporting significant overall governmental savings (including cleanup costs).59. In 2002, a survey by one of our research assistants revealed that the majority of road commissions could buy saltfor $29.76 per ton. While CMA sold for $200 to $1000 per ton, the similar road treatment, potassium acetate, soldfor $330 to $700 per ton.60. U.S. Water News, Jan. 1990, at 11. If a road commission simply could not find the cash to pay for a 100% switchto CMA, 20 to 60% CMA-to-salt blends are available that buffer much of the salt’s negatives but still cost two to threetimes as much as salt. In 1991, Congress passed the Intermodal Surface Transportation Efficiency Act (ISTEA) pro-viding states with 80% reimbursement for use of CMA on bridges, overpasses, and approaches (because the destruc-tion of these high-value highway features had created public hazards that could not be ignored), but the subsidy hasnot been uniformly used and is not extendable to highways in general.61. Transportation Research Board/National Research Council, Highway De-icing: Comparing Salt and CalciumMagnesium Acetate (1991), available at onlinepubs.trb.org/onlinepubs/sr/sr235/00i-012.pdf.


Upon examination, the Transportation Research Board report Mr. Hanneman refer-enced actually concluded that the unaccounted annual externalized costs of saltingexceeded $2 billion by an undetermined amount. That report’s estimates, moreover, alsoexcluded public costs in human health, particularly problems from salt infiltration intodrinking water supplies, and excluded all “environmental damages.” Both of these arepotentially large in magnitude, but were excluded on grounds of “insufficient informa-tion.” (As to safety statistics, moreover, it would appear that completely untreated high-ways are not the appropriate comparison to salted highways.)

6. The political context. Note that, pushed by the road salting industry, it’s usually agovernment agency that makes the salting decision, in virtually the same terms as would apolluting private corporate factory owner.

So assume now that a careful study conclusively proves that the U.S. loses a net $2 bil-lion or more each year, destructively and unnecessarily, because of the use of road saltinstead of benign available alternatives. What corrective response can we expect to occur?

Perhaps none. As so often, the important question is who if anyone will take up the prob-lem and resolve it? Will the industry itself, and the marketplace economy, take on the prob-lem and solve it? Not likely. Will some government agency do so of its own initiative? Notlikely. If not, will activist members of the public do so in the classic process that createdenvironmental law—through media efforts, politics, and creative use of the legal system?Not yet.

Meanwhile, the salt goes on.

...What if [the economic] crisis...[is] telling us that the whole growth model we created over the last 50years is simply unsustainable economically and ecologically, and that...when we hit the wall [was] whenMother Nature and the market both said: “No more!”?... “We created a way of raising standards of liv-ing that we can’t possibly pass on to our children,” said Joe Romm, a physicist and climate expert whowrites the indispensable blog climateprogress.org. We have been getting rich by depleting all our natu-ral stocks—water, hydrocarbons, forests, rivers, fish and arable land—and not by generating renewableflows.... It has to collapse, unless adults stand up and say, “This is a Ponzi scheme. We have not gen-erated real wealth, and we are destroying a livable climate....” Real wealth is something you can pass onin a way that others can enjoy.... “Just as a few lonely economists warned us we were living beyond ourfinancial means and overdrawing our financial assets, scientists are warning us that we’re livingbeyond our ecological means and overdrawing our natural assets,” argues Glenn Prickett, senior vicepresident at Conservation International. But, he cautioned, as environmentalists have pointed out:“Mother Nature doesn’t do bailouts.”...

—Thomas Friedman, New York Times, March 7, 2009.


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