EVST 255: Environmental Politics and Law

Lecture 1

 - Introduction to the Course


Professor John Wargo introduces the central question of the course, “Can law shape a sustainable future for ten billion people?” The purpose of the course is to examine the most important U.S. laws adopted over the past forty years, and to evaluate their effectiveness. Lectures will present histories of nuclear experimentation, industrial and organic agriculture, air quality, plastics, wilderness, green building certification, and land use regulation. By the end of the course students will be exposed to diverse statutory and regulatory strategies to prevent pollution, reduce wastes, protect human health, conserve energy, and to protect wild lands.

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Environmental Politics and Law

EVST 255 - Lecture 1 - Introduction to the Course

Chapter 1. Introduction: Case Histories; Public and Private Sectors [00:00:00]

Professor John Wargo: This course has a long history. And the purpose is really to wonder with you about the potential effectiveness of environmental law. And I really want you to imagine that we have no environmental law. By the end of the course, I may ask you on a final exam to design a new system of environmental law that would protect us against the problems that I’m going to run through with you.

This is an unusual course in that most law courses do not go through case histories the way that we will here. So that we will be reviewing perhaps twelve or fourteen different case histories of specific problems. We’ll be taking a look at the statutes that evolved in an attempt to manage those problems. And I will give you my impressions about how effectiveness might be judged, how efficiency might be judged. And also really answer the basic question, which is what’s worked, what has not, and why, as a way of thinking about how we’re going to respond to a very new world in which you will face, your children will face, your grandkids will face approximately ten to twelve billion people creating more demand on resources, more pollution, rising rates of consumption, rising rates of waste. How are we going to manage these types of problems? That’s really the essential purpose of the course.

You’ll see on the syllabus that I want to run through quickly with you that today I’ll give you an overview of the material that we’ll cover over the next several months. On Thursday, we’ll review principles and strategies in environmental law and I’ll give you a quick Cook’s tour of a variety of different statutes, as well as the decision standards that are embedded in those statutes. Then we will take a look over several weeks at the problem of national security and the environment, and really what happens when the military spends trillions of dollars per year in the world, what happens to environmental quality? The public sector has not been the target of twentieth century environmental law, but it has been a very important force in shaping the environment that we now are coping with.

We’ll look at nuclear experimentation. And I’ve come to believe that the atmospheric weapons testing program of the 1940s and 1950s really demonstrates one of the greatest success stories that we have in environmental law, following the recognition that the radionuclides that were created and blown into the atmosphere, worked their way into the stratosphere, they encircled the globe. And when they intersected rain clouds, they would fall to earth. They contaminated the soil, they contaminated the water supplies. They contaminated also food supplies, agricultural crops, and made their way to the dinner tables of everybody on the earth. The radionuclides eventually became embedded in human tissue. Depending on the nuclide, it would vary between bone or fat tissue, perhaps the liver, and pose very well-known threats. So we’ll review that story, because there are really fundamental lessons of ecology, fundamental lessons of environmental health that we’ve really forgotten. We’ve forgotten as we’ve attempted to manage air, water, food, as well as consumer product safety or large tracts of lands. So why have these lessons that were very clear by 1963, why have we forgotten those lessons? That is the purpose of that segment.

And for each of these case histories, I’ll be reviewing the specific statutes that applied at the time and talk about how they evolved and give you a sense of how you would evaluate whether or not they’ve worked, how effective they were.

We’ll take a look too at preparation for warfare. It’s not only the waging of war that creates great environmental destruction; it’s also the preparation for warfare, the training, the production of weapons, the enrichment of uranium. So that if you look at the 25 to 30,000 different military bases and installations around the world, you’ll see extremely severe contamination. So thinking about how that should be managed, how it might be prevented, will also be the subject of several lectures, as well as site restoration.

So we’ll be looking at predominately public sector issues in this first segment of the course. And then we’ll take a look at the private sector, which has been the target of most twentieth century environmental law. We’ll take a look at global markets and the challenge that they pose in managing chemicals. And the management of chemicals is a very tricky business in that it demands a high degree of sensitivity about where chemicals are released to the environment. Where do they go? How do they move? Are they persistent? Where do they end up? And how are people exposed? Calculating the magnitude of exposure is really fundamental to understanding what the risk is. And most environmental laws are structured to manage chemicals based on this idea of risk. So to understand the risk and to manage it, you have to understand all of these intermediate issues, such as where was it released? Where does it go? How does it get into your environment? And what are the likely health effects? And the word likely is very important, because it implies that we need to be thinking probabilistically. What’s the probability of damage occurring down the road, whether or not it’s ecological or human health related? So we’ll be thinking about the different forms of law that have evolved to try to deal with this kind of a problem. Some set risk-only standards, some are risk-benefit balancing, some are cost-benefit balancing and more utilitarian in their structure. So what is the right standard to apply for very specific problems?

We will then take a look at a variety of issue areas, including what I think of as industrial agriculture. The majority of our food is highly processed. It is chemically dependent, particularly on fertilizers and pesticides and preservatives and dyes of different sorts. So what does that mean? The food packaging industry is increasingly of interest to me in my own research. So I’ll share with you several ideas about how plastics make their way into your life. Right now, the synthetic chemical industry is dominated by the plastics industry; it constitutes seventy percent of the synthetic chemical industry in the United States. And each year, one hundred billion pounds of chemicals are produced and released to the environment. And among all plastics, among those one hundred billion pounds, only five percent are recyclable. So we are building up a waste stream that is coming back to haunt us. If I took tissue samples from each of you, probably ninety-five percent of you would have residues phthalates or Bisphenol A, which are plasticizers in your body. And scientists, including Hugh Taylor right here at the Yale Medical School, is now recognizing that these are very effective chemicals at exceptionally low doses, part per trillion doses, in sending a signal to cells that estrogen has arrived or another hormone has arrived. So that they are triggers of hormonal activity in many different species of animals as well as humans. So what does this mean? In one way, it means that we’re conducting quite a chemical experiment on ourselves, but also on future generations. So what should we be doing about it? How should we be managing the chemical universe?

This chemical universe, by the way, in international commerce includes about 80,000 different compounds at present. Two to three thousand new chemicals are produced and released to the environment each year. And they take many different forms, pharmaceuticals, plasticizers, different metal compounds in millions and millions of different products. So that these chemicals have no mechanism in law, even in the United States, to test what their effect is and what the risk might be to either environmental quality or to human health. So what should we do about problems like that?

We’ll take a look at air quality law, and particularly the concentration of the Clean Air Act on really very few chemicals. There are six chemicals that became a target of national air quality law and regulation. This is administered by the Environmental Protection Agency, and they decide which chemicals will appear on their radar screen. They decide what monitoring programs are necessary in order to detect where they go, how they move, how they behave in the environment and how dangerous they are, who might be at risk.

One good example of that might be diesel exhaust. And you may know that the older trucks, the less efficient diesel vehicles, tend to spew large particulate matter from their tailpipes. And these larger particulates, ten microns in size and larger, are visible. It’s one of the chemical threats that is visible. It’s one of the easier ones to identify. In fact, with diesel exhaust, you cannot only see it, you can taste it, you can feel it burning in the back of your throat. So most people understand when they are exposed to diesel exhaust.

Well, one of the interesting intents of the EPA was to reduce the particle size, to reduce the larger particles. And what happened when the engines became more efficient to accomplish that was they produced more, but smaller particles. So the finer particles, less than one micron in size, not thinking that these finer particles can be more deeply inhaled into the lung, they reside there, they get stuck to the sides of the airways, particularly in those that have background illnesses such as asthma, emphysema, lung cancer. So that these particles don’t get expired, so that exposure becomes more persistent. The danger to health is increasing.

There’s an interesting correlation, and I’m not saying that it’s a causal relationship, an interesting correlation between the increasing number of these finer particles with rising rates of respiratory illness in the United States and in different parts of the industrialized world. So why might that be? Well, let me give you one analogy. If you thought about an aquarium and you fill that aquarium up, regardless of its size, with softballs. And then you calculated the surface area of those softballs. And then you took the softballs out and you filled the aquarium up with, say, peas. And you calculated the surface area of the peas, being analogous to the finer particle size. You’d find a many-fold increase in the surface area of the peas than you would of the softballs. And because the carbon particles that are these core elements of particulates, because they’re sticky, they tend to lock onto a variety of different organic compounds called volatile organic compounds, which are also regulated by EPA. So that the carbon core becomes the vehicle for bringing a whole array of different chemicals into your lung, very, very fine particles in size. So that many times, the absence of excellent scientific information can lead the government into making decisions that are actually not health protective or environmentally protective. So we need to be very conscious about the importance of doing excellent science, not just science about where chemicals move in the environment, but their effects on human health.

If you went to EPA’s website and you looked for the purpose of the Environmental Protection Agency, the number one purpose that you see on their website is to protect human health from dangerous elements in the environment. That’s kind of curious. Many people think of the environment as not being that closely associated with human health. We’ll look at food safety issues, and we’ll look at the rise of the organic food industry, which I believe is a very important success story in the twentieth century, particularly the result of the Food Production Act of 1990, although there was a delay in adopting standards for organic foods until the year 2000. But the organic sector in the food market now is the largest growing of any other sector besides bottled water, if you include water in the food industry. This is very interesting. So the idea of certification, of government-sponsored certification as potentially creating new markets for products that are health friendly or environmentally friendly.

We’ll look at the strengths and weaknesses of the certification scheme, not just related to food, but also to paper and forest products and a variety of other areas, especially related to buildings. We’ll take a look at the history of tobacco regulation. And there’s a special legal paradigm that applies to tobacco. But again, it’s one of these types of threats to human health and environmental quality that was really very lightly treated, very lightly regulated during the twentieth century, and only now are we seeing the Food and Drug Administration being empowered to take tighter control over the way that products are marketed. We’ll take a look at the advertising strategies of tobacco companies and see a variety of similarities to other products, such as toys or candy or different kinds of foods toward children. So that hooking children early on to try to cultivate their taste toward foods that are high in salt and sugar and fat, there are some very interesting similarities there between the way the tobacco industry was very anxious to encourage the youngest in society to try tobacco products, knowing that exposures for very short periods of time could become addictive.

We’ll take a look after spring break at land use issues. We’ll switch from chemical problems and pollution problems to land use issues. And we’ll be particularly interested in legal strategies for conservation, different approaches to set aside lands to protect biological diversity, to protect watersheds in an effort to improve environmental quality. We’ll look also at wilderness and national park law and a variety of other statutes that apply to the U.S. National Forest lands, the Bureau of Land Management. And we’ll also look at conflicts between land use and development and the important value that we hold for private property rights in our society. We’ll also think about urbanism and sprawl and different smart-growth techniques to try to control the rate of development in suburban areas. We’ll also look at the idea of environmental justice, which really grows from a recognition of different groups, different areas receiving or being exposed at a higher level to either chemicals or different kinds of environmental insults. So that we’ll run through a variety of cases where groups claim that they are more exposed, more at risk than others, they’re bearing a disproportionate burden of harm or threat.

We’ll also look at the rising interest and rising incorporation of LEED certification into U.S., national, and state law. So buildings are certified now to be green at different levels. The School of Forestry and Environmental Studies building, the new Kroon building, for example, is applying for the highest level of LEED certification, it’s called Platinum. So we’ll look at the evolution of that certification scheme and I’ll be actually quite critical of the scheme and the way that standards are being adopted by different governments that become the foundation for the allocation of property tax breaks, but also direct subsidies from both the federal government and state governments.

We’ll take a look then near the end of the term at the past and future of nuclear power and the statutes and regulations that surround nuclear power, particularly the statutes that provided really large subsidies when compared to subsidies allocated to renewable energy sources. We’ll take a look at a variety of different emissions trading schemes, and renewable energy policies, and then end the course with a reflection across these different cases about what we’ve learned. So that’s the game plan.

Chapter 2. Course Requirements [00:18:02]

And I wanted to spend just a couple minutes talking about course requirements. The course is structured to have a final examination worth forty percent of your grade. But also, there is a paper or midterm option that would constitute fifty percent of your grade. And then a discussion section will be held each week for fifty minutes. So everybody will need to sign up for a discussion section, and that would be worth ten percent of your grade. I’ll talk more as we move through the term about the term paper option.

There are four books that have been ordered and I believe are all in. There’s one that was shipped yesterday and should be in this afternoon. David Kessler’s A Question of Intent, which provides a really wonderful review of the history of tobacco law and regulation. Michael Pollan, The Omnivore’s Dilemma. A good part of my career has been spent thinking about food quality and food safety, so we’ll take a look at Pollan’s work. We’ll read also a book that I published just a few months ago called Green Intelligence that will run through a variety of these cases that we’ll examine during the class. And then we will take a look at Weinberg and Reilly’s book called Understanding Environmental Law.

Chapter 3. Major Course Themes [00:19:22]

Course themes that I intend to draw through these cases include those that are on the back of page two, or the bottom of page two. How is law related to science and uncertainty? What causes environmental damage and health loss? Where should the burden of proof of causality lie? On the public sector or on the private sector? On the individual? So that understanding the idea of burden of proof is a fundamental aspect of understanding environmental law.

We’ll also take a look at the importance of secrecy and the control over information or knowledge. So I think of this as being really an analogy between the public sector and the private sector. In the private sector, secrecy is a very important component in that trade secrecy protects a company’s understanding of product ingredients or perhaps how it’s processed or produced or shipped. Whereas classified information in the public sector protects sensitive information. In both cases, the idea is to protect competitive advantage, either in international affairs or in the marketplace. So we’ll see how that plays out in many of these cases.

We’ll also think about the principle of democracy and how participation rights vary depending upon which law we’re looking at. And as participation rights expand, decision-making becomes more complicated. And what that means is that it often slows down and it’s harder to reach a mission of improved environmental quality.

We’ll look at property rights. And rights in law are an essential component, but also obligations are an essential component. So when I think about law, I think about how rights are specified, how obligations are specified, and what are the sanctions applied for deviance, and where does the perception of legitimacy for that law come from? So we’ll be asking those set of questions for each of the laws that we review.

We’ll take a look too at the principles of equality and justice and spend a lot of attention looking at disproportionate allocation of burdens or damages or pollution, where dangerous facilities are located. We’ll also take a look at the idea of risk and precaution. So what is acceptable risk? Once it’s calculated, how do you determine what is acceptable? If you look across the laws, the different statutes have very different definitions of what acceptable risk is.

We’ll also think a lot about the idea of precautionary law, as opposed to utilitarian law. So law that builds in safety margins or buffer zones to protect against miscalculations of risk. We did not do that when we built nuclear power plants, and we’ve had several severe accidents in the world, most notably Chernobyl that we’ll take a look at when we look at the nuclear power plant case. So that thinking about when should the government be allowed to balance risks or costs against benefits, and when should a fixed standard of allowable risk drive a decision? Those are very difficult questions.

Chapter 4. What Is Our Capacity to Manage Environmental Quality? [00:22:53]

So that said, I’d like to just briefly run through a set of slides here that I think are reflective of the material that we’ll be reviewing. And I wanted to start with this set of images from Thomas Cole, a well-known landscape artist from the nineteenth century, one of the Hudson River School painters. Just to give you a sense of where I came from, my background as an undergraduate was in history. I had a fascination for English literature, but also the history of art, but a very specialized form of art, which was nineteenth and early twentieth century landscape art. And I was always fascinated by this series called The Course of Empire by Thomas Cole.

In the very first painting on the lower left, you see what’s thought of as the savage state. And this is Thomas Cole’s obvious interpretation of the evolution of civilization. So the savage state is wild, it’s hostile. I think of it in a way as being wild lands, and I’ve always had a strong fascination for wild lands. When I was a child, my dad always took me camping or hiking up in the White Mountains in New Hampshire or the Adirondacks or up in Vermont. They really caused me to have not just a fascination with it, but also a love of it. Thinking about how society might move from the savage or the wild state to the pastoral or the Arcadian state is well depicted in this painting. And many people, when they’re shown a variety of different landscapes if the landscapes vary between the highly dense urban environment all the way to the wild environment, they prefer the pastoral, the agrarian landscape.

The Consummation of Empire is the next slide in the series, the urban setting. And I also have had a fascination with urban areas and have lived in Philadelphia, I’ve lived in New Haven, I’ve lived in Sao Paula in Brazil and in San Francisco, and eventually settled here in Connecticut. But it’s this juxtaposition that I find so interesting, a love for the wild as well as a love for a vibrant, urban core. And what happens in between in terms of suburban sprawl will become central to several of the cases that we look at.

Cole then went on to think about what happens if markets are completely unregulated — destruction, damage. So we’ll spend a good amount of time thinking about how to predict damage and how important this is in the structure of environmental standards. And then desolation. And many today have this image of desolation 100, 200 years down the road in response to global climate change.

So really, this set of paintings structured my thinking in a variety of different ways. It made me wonder about what the potential of law is. What capacity do we have to understand serious threats to the environment and to human health, particularly over long periods of time? What demands on science does that make? And how can we use law to effectively reshape human behavior in a way that would be more sensitive, that would ensure that when we have twelve billion people in the world that we will have adequate food supplies, we will have sufficient water, it will be equitably distributed, we will have clean air, and children, grandchildren, future generations will have an environment that they can be proud of.

I am certainly not proud of the environment that my generation is leaving to your generation. And that really is, that’s the reason that I’m standing here in front of you today. I’ve decided in my career that rather than working for government, rather than working in the private sector, that I would spend my life, the bulk of my career, training future leaders, whether or not you move on into the public sector or the private sector, nonprofit world, to think, I hope, differently about environmental quality and how you might shape it.

So the central questions here that we’ll be looking at, what’s our capacity to manage environmental quality? What role has and could law play in determining the future of environmental quality? And what’s worked well, what’s failed, and why? If we can’t answer these questions, I would hazard to say that we don’t have much hope of making a dent in the kinds of problems that we’ll be facing over the next century. So the problems considered in the course, national security, land use, food safety, plastics, green building, pesticides, air pollution, tobacco, wild lands, national parks, coastal development, conservation policies, urban and suburban growth, transport energy, and drinking water. In my mind, what’s worked well and why?

Well, the nuclear weapons history I think is quite fascinating. There are some wonderful lessons there about how we used state-of-the-art science in the 1950s to recognize a serious threat to human health and how we intervened and eventually how John F. Kennedy decided to ban the use of testing of nuclear weapons in the atmosphere that was resulting in strontium-90 in the bones at high concentrations, particularly among the youngest, the children. Population control has been a success. Compared to the projections of the 1970s by Paul Ehrlich and Julian Simon and others, it’s quite striking that the geometric projections have diminished substantially, particularly in developing parts of the world.

The phase-out of chlorinated hydrocarbons, including DDT and aldrin and chlordane and dieldrin, heptachlor back in the 1970s. These became one of the very first targets of the Environmental Protection Agency. And because they are fat loving, they’re lipophilic, they persisted, they moved through the food chain. They moved into our bodies. And you and I are still carrying around residues of many of these chlorinated hydrocarbons. Your concentrations are lower than mine are. But your concentrations predominately came from your mother via breast milk. That’s the mechanism of transfer across generations for some of these compounds. So phasing them out was a very important thing to do.

Lead in gasoline and paint were phased out as well. Chlorinated fluorocarbons that were and are responsible for diminishing the ozone layer that exists in the upper stratosphere, so that reducing CFCs and similar ozone-gobbling compounds has been a success story, at least the rate of loss has been stabilized. Polychlorinated biphenyl reduction, these are chemicals originally thought to be beneficial because they acted as a refrigerant and flame retardant for electronic technologies, such as electrical transformers. So that phasing out PCBs that were building up in the tissues of wildlife, particularly large mammals, as well as birds, and also in human tissues, has been a very important success story.

Recognizing the threat of asbestos in producing a very rare form of cancer called mesothelioma was a very important step, as well as the increasing restriction on tobacco, so that we’re seeing a decline in some forms of lung cancer in response to the tobacco restrictions. And we’re also seeing very interesting declines in the rate of addiction in those parts of the country where advertising has been most heavily restricted and public service campaigns have been mounted to warn people about the dangers of tobacco. We’ve also made some great strides in the area of food safety, particularly in terms of reducing microbial contamination. And also, the stellar success story about the rise of organic food I think is something to take note of and to learn from.

So what are the most persistent problems, the ones that have been hardest to deal with, and why? Fossil fuel consumption, renewable energy innovation in part due to our lack of subsidies relative to subsidizing fossil fuels as well as nuclear power. Radioactive materials, the concentration of radioactive materials, particularly for the production of weapons, has created some of the most hazardous sites in the world. So Hanford, Washington, the Hanford Works in Washington, as well as the Oakridge Laboratory or Savannah River in Georgia, these are seriously contaminated sites.

Waste management has also been a persistent problem. Our recycling efforts have clearly failed us. Most people don’t know the difference between a plastic that is stamped with a number six and a plastic that is stamped with a number three. And in fact, I’ll challenge you right now to go through one week of this term without buying any plastic. And if anybody is capable of doing that by the end of the term, I will take you out for lunch. I’ve made that offer for the past five years and I have not spent one dime on lunch as a result.

Transport, personal transport as opposed to public transit facilities, is a persistent and growing problem. We now have one vehicle in the United States for every person who is eligible to drive. That’s nearly 250 million vehicles. We have more vehicles per capita in the United States than any other place in the world. And we drive more miles per person than any place in the world. The failure to develop public transit facilities is quite striking.

Parks and protected areas, we are not protecting areas the way that we were back in the 1970s and the 1980s. So why have we slowed down? Why was the government in the process of acquiring lands in the 1960s, ’70s, and ’80s and building parks and building large corridors for wildlife? To conserve biological diversity, but also to provide wide-scale recreational opportunities. So why have land acquisition efforts been stalled?

Biological diversity loss is also growing, in part because of the chemical threats that I described earlier in the lecture. There are nearly 450 million acres of the United States landscape that are routinely sprayed by biocides, pesticides of one sort or another. There are 1,000 different biocides that are each licensed independently. So at that scale, how could we not think that we would be threatening different species?

Also agriculture. One of the great drivers of loss of biological diversity in the world is agricultural development. And you can see this in the Amazon, where tropical rain forests that are some of the richest and most biologically diverse ecosystems in the world are being ripped up and planted with soybeans for either food or fuel production. So we’ll take a look at some of the key drivers behind biodiversity laws.

Marine species exploitation, we’ll take a look at the decline of a variety of commercial fish. We’ll also be taking a look at the tendency of large predatory fish to absorb mercury. So mercury is emitted from power plants. It’s also emitted from incinerators. It goes into global circulation just like DDT would. It also rains down on the earth and it bio-accumulates in large predatory fish. By the end of the term, you’ll understand which fish are safe and which are not, and why. And you’ll also question the Bush administration’s decision to lighten the regulation on mercury emissions and how dangerous that has become, particularly for the youngest in society.

We’ll take a look at indoor air quality. And one aspect of this issue that I’m quite interested in is the Environmental Protection Agency spends probably ninety-five to ninety-eight percent of its time and budget thinking about the environment as being the outdoor environment. Whereas we in the United States now spend on average more than ninety percent of our time indoors. And as somebody that is a dad and cares about the future of the environment and human health, that’s got me worried. People are spending less time outside. They’re experiencing nature at a lower rate than ever before. They are spending more time in front of computers in indoor environments than ever before. And EPA does not do much to regulate the environmental quality of indoor environments. So the reasons for that are sometimes obvious and sometimes not. One clearly is a respect for privacy and private property rights. But it means that anybody is allowed to carry chemicals into the indoor environment, including cleansers or pesticides or plastics that can get into their bodies. And there is basically no regulation to prevent that.

Hazardous sites, the number of hazardous sites now in the United States is more than 350,000 on EPA’s list. There are 50,000 different hazardous sites that have been severely contaminated that are under the jurisdiction, meaning the responsibility, of the Department of Defense, the Department of Energy, and the Department of the Interior. There are 340,000 sites that are owned in the private sector that have been classified by EPA as hazardous. So the rate of cleanup of these sites is not even one percent of the rate of discovery of new hazardous sites. So this problem of basically disregarding the chemical abuse of the landscape, feeling comfortable to throw chemical mixtures out the back door without concern for their persistence and movement, this is something that your generation will have to deal with.

Product labeling will also be a subject that we’ll take on. Basically, if you look carefully at product labels, you’ll see claims of product effectiveness, product appeal associated with color or functionality. You will not see much in the way of claims or a demonstration of hazard or guidance about how you might manage the hazards. So that product labeling could be an effective way of conveying information to the public, to inform consumers to make choices that are more responsible. So how should we adjust product labeling law in a way that makes sense? I asked this question with respect to pesticides several years ago and found something quite interesting.

If you look at a pesticide bag, for example a fertilizer bag in say a Home Depot. You’ll see the green lawn with the children playing on the lawn and bright colors on the front of the bag. And then the back of the bag in print that may be eight point, it may be six point in size, print that I have to take my glasses off and get very close to be able to read. The warnings are illegible and unintelligible to a very large proportion of society. And there are some twelve percent of the U.S. population, not an insignificant number in a population of 310 million people. So ten percent that have no capacity to read type that is less than ten point in font. That means that those warning labels could never be effective for that population. If you add on to that percentage, the group that is illiterate, the group that does not have enough education in order to understand what the risk is and how they might manage the risk, gradually, you get up to a percentage that’s close to forty percent of the U.S. population does not have the capacity to understand a message of hazard or the capacity to interpret how to manage that hazard in a way that would cause the environment to be protected or human health to be protected.

So the statutes we’ll look at, I’m not going to go through all of these now, but we’ll go through the major statutes and the book. Weinberg and Reilly will give you a very concise, quick overview of the key provisions of these statutes. And I will show you how the statutes apply individually to the various cases. We’ll take a look, not just at the chemical management statutes, but also the federal land and resource management statutes, such as the Wilderness Act, the Endangered Species Act, the National Park Service Organic Act, and several others. Additional crucial statutes that you might not think about as being environmental in nature include patent law, governing trade secrecy, the Freedom of Information Act that gives you the right to request from the government information about public policy or about the environment. I’ll pause here and just ask how many of you have made requests under the Freedom of Information Act to a government agency? That’s very interesting. The majority of people that do that in society are highly specialized. They work in the private sector or they are lawyers, they’re using them as the basis for lawsuits. So the Freedom of Information Act was intended to democratize information that was held inside libraries and government agencies. But it’s been highly ineffective in a variety of ways. The National Security Act, the War Powers Act, the Administrative Procedures Act, Homeland Security, the Patriot Act, and different budget statutes, ranging from subsidies to authorizations for funding for EPA. And these statutes are absolutely crucial.

So you can imagine a law being passed, that — let’s say the law had the intent to protect the environment from a new plastic compound. So that law might be passed and it might demand that the chemical be tested thoroughly. It might demand that it be labeled in a way that would ensure that it would be managed more effectively. It might assign penalties for deviance. But in Congress, if Congress doesn’t allocate the money to EPA, the program will fail. So the industry recognizes this quite clearly, that they have not lost the battle if a law is passed. They will have an opportunity year after year to go back to Congress and try to block allocation for monitoring that issue, for enforcing that issue. And that explains a lot of the ineffectiveness of twentieth century environmental law.

So on Thursday, we’ll come back to a discussion about different types of strategies to protect the environment, different decision standards that are embedded in different statutes. And we’ll particularly take up this issue of distributional effects. How some chemicals behave differently than others, they result in exposures to some groups that are higher than others. And also thinking about how costs as well as benefits are allocated quite differently in society by environmental laws. So I’m going to pause there and just take a couple of minutes for any questions that you’ve got. Yes?

Student: [inaudible]

Professor John Wargo: Could you repeat that please?

Student: [inaudible]

Professor John Wargo: Yes. After the lecture each day, the lecture slides will be posted online. Also, I will use the Classes server quite regularly. Some of the readings that you will have assigned to you will be on the Classes server, so that some of the discussion sections as well may use strategies to pose questions and I’ll require your responses on the Classes server as well. Yes?

Student: And will you hold office hours?

Professor John Wargo: Will I hold office hours? I will hold office hours, and I will announce those on Thursday.

Student: Okay.

Professor John Wargo: Anything else? Well thank you very much for joining me.

[end of transcript]

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