Environmental Law and Policy: Readings, Materials and Notes

Environmental Law and Policy: Readings, Materials and Notes

Description

The second edition of Environmental Law and Policy represents a substantial restructuring as well as updating of the first edition prepared by Professor Krier in 1971. This revision is entirely my responsibility, although Prof. Krier has contributed many useful suggestions and insights. The arrangement of the materials chapters has been substantially altered; relevant statutes and decisional law has been updated through the spring of 1978; and the coverage of economic analysis, water pollution control regulation, and the National Environmental Policy Act has been greatly expanded. Despite these changes, the basic aim and strategy of the first edition is maintained. As Professor Krier noted in the preface to the first edition, any effort in a work of this scope to teach the student or convey to the reader all relevant “black letter” environmental law—decisions, statutes, and regulations—would be doomed to failure. The domain of environmental law is too vast and variegated to be neatly reduced. Also, any effort at a comprehensive restatement of environmental law would soon become obsolescent. The events in the seven years since the first edition amply demonstrate the rapid pace of change in judicial decision, legislative enactment, and administrative regulation and decision in this field. These characteristics pose problems of exposition to which introductory environmental law books often respond in one of two ways. One approach is to assemble a brief sampling of materials from each of many different fields of environmental law, such as air and water pollution control, land use, management of mineral, timber, and other natural resources, occupational health and safety, and so on. The second approach, which is followed in this book, is to develop a general analytical framework for understanding many types of environmental problems and the responses of the legal system to such problems, and to elaborate and apply the general framework through concrete emphasis on one or two particular fields of environmental law. The goal of this approach is to give the reader and student a general and enduring understanding of the fundamental features of and issues in environmental law without sacrificing the realism and insight fostered by a more detailed focus on particular cases and problems. The general framework which the book attempts to develop is reflected in the chapter organization. Chapter One provides and introduction to the nature of environmental problems, while Chapter Two surveys the possible causes of those problems. Chapter Three draws heavily on economic analysis in viewing the origins of environmental problems in conflicting claims on natural resources and highlighting the important role of the legal system in resolving such conflicts. The limitations of economic analysis and the relevance of other social goals to environmental problems are also addressed. The remaining chapters examine the different ways in which the legal system might deal with environmental problems. Chapter Four examines the strengths and drawbacks of the common law system of private civil litigation. Legislative and administrative regulation, which is today the dominant response of the legal system to environmental problems, is examined in Chapter Five. Chapter Six reviews a number of alternatives to regulatory controls—such as subsidies, pollution charges, transferable property rights in pollution, and administrative compensation schemes—that are likely to be more widely used in the future. Chapters Seven and Eight deal with judicial control of administrative agencies whose policy choices have environmental impacts. Chapter Seven examines the application of general principles of administrative law to environmental controversies, while Chapter Eight examines the National Environmental Policy Act. Chapter Nine briefly examines alternative mechanisms for funding environmental advocacy. A unifying concern of the entire work is the comparative performance of alternative legal institutions in responding to environmental resource conflicts, particularly in cases where use of environmental resources such as air of water provides tangible short-term benefits to well organized interests but threatens more diffuse, uncertain and long-term harms to the natural environment or to loosely organized environmental interests. In developing a framework for addressing this basic issue, the materials—particularly Chapters One, Four, and Five—focus on the problem of air pollution as a case in point. Air pollution is particularly well suited for this purpose, because it represents one of our most important and difficult set of environmental problems, and because the response of the legal system to air pollution is more fully developed than in many other areas. In addition, the links between air pollution control and other environmental problems, such as land use, are becoming more and more apparent. However, the materials in this book are not limited to air pollution problems. Regulation of water pollution is examined in Chapter Five, and the later chapters involve a broad variety of environmental problems. The book is designed to serve, standing by itself, as a text suitable for an introductory environmental course of two to three hours. However, many teachers familiar with other aspects of environmental law may wish to supplement the book with their own materials on water law, noise, land use planning, resource management, toxic substances, and so forth. It is my hope that the basic structure of this book is sufficiently general to facilitate such supplementation. The emphasis in the book on economic analysis of environmental problems and environmental law bears discussion. It is my own view that environmental law badly needs a unifying analytic framework, and that the focus of economics on conflicting resource uses provides at least a partial answer to that need. The economics materials in this book have been carefully written on the assumption that the reader has no technical economics background, and I am confident that the writings and ideas used are within the grasp of any college-educated person. Moreover, the book is also designed so that those instructors who do not find it profitable to emphasize economic analysis can avoid such emphasis by omitting all or portions of Chapter Three. Beyond the focus on economics in Chapter Three and elsewhere, the books as a whole devotes considerable attention to general policy and institutional analysis of environmental problems in addition to specific legal doctrine and rules. There are fewer cases here than one ordinarily finds in a law school course book, and many of them are included as much for data about problems as they are for pronouncements about doctrine. In addition, there are large doses of what I hope to be explanatory materials, as well as extensive references to relevant literature. Because environmental law is so rapidly changing, and because the interrelation between law and other disciplines is so apparent in the environmental field, I think it essential that students of environmental law be exposed to these broader perspectives in order to be effective in whatever role they come to play in the environmental field in the future. At the same time, I hope that the attention to more general policy and institutional analysis will encourage use of the book by nonlawyers with an interest in environmental policy questions. As previously noted, Professor Krier has provided me with many helpful suggestions and needed encouragement in my preparation of the second edition, which retains much of the material and the pioneering conceptual framework utilized by him in the first edition.

Publication Date

1978

Edition

2

Environmental Law and Policy: Readings, Materials and Notes

Find @ NYU

Share

COinS