Focus 580; The Making of Environmental Law

In this part of focus 580 will be looking back over the last several decades and looking at how environmental law developed in this country. If you look back to the 1970s what you'll find is that at that time when the EPA was young an environmental law was young there are a lot of people that were afraid that environmental legislation that at the time was new either would end up being gutted in the future or simply wouldn't be enforced. And fortunately enough turned out that neither of those has been the case however all the way along over the last three decades there have been efforts to weaken the environmental laws that exist so the question what sort of take up this morning is to try to talk a little bit about how it is in fact we ended up with the environmental laws we have whether they are strong enough to last what we kind. And can expect in the future. And our guest for the program is Richard Lazarus. He teaches environmental law and natural resources law at Georgetown Law School. He previously worked for the U.S. Justice Department

in both the environmental and Natural Resources Division and also the solicitor general's office where he was assistant to the solicitor general. He has represented the United States also state and local governments and environmental groups in the U.S. Supreme Court in approximately thirty seven cases. And he's author of a book that's recently published the title the book is the making of environmental law and it's published by the University of Chicago Press came out last year and the idea is as as we hope to do on this program to take a little bit of a stroll back over the last several decades to look at how it is we ended up with the laws that we haven't and where things are headed. So questions are certainly welcome here on the program the one thing that we ask people who call in to do is just to try to be brief so that we can get in as many different people as possible keep our program moving along. Of course anybody is welcome to call 3 3 3 9 4 5 5 and toll free 800 to 2 2 9 4 5 5.

Professor Lazarus Hello. Hi how are you. I'm fine thanks and yourself. Glad to be here thanks for talking with us. You begin this book with a little story here about the fact and I did I did want to mention the fact that you got your undergraduate degrees here at University of Illinois Urbana-Champaign back in the 70s. And that right that you have degrees in both the chemistry and economics and your idea apparently at the time was that once you finished your undergraduate degrees here that you would go to law school and that you would become an environmental lawyer. Actually right now my my plan back when I started the University of Illinois in the early 90s 70s. This is in the fall of 1971. I was also pleased to study environmental law and law school and become an environmental law professor actually and the reason I study chemistry and economics was I sat down with the University Illinois within the course catalog and tried to figure out will be the best possible major if I want to go into environmental law and I remember at the time environmental law was so new. Back then when people would ask me my classmates you know I would ask why are you getting a degree in chemistry and a

degree in economics. I would say well it's a pretty environmental law program. It was not at all unusual for someone to say to me what that they would even know what I meant. By the term environmental law back in the fall of 1971 and in retrospect that's not surprising there wasn't a lot of law back then. Well here we're talking about the the the the time when these kinds of ideas were relatively young after all it when 1970 that was when we had the first Earth Day and then also I believe in 1070 that's when the EPA the federal EPA was created. And in 1070 the first major kind of environmental legislation Clean Air Act was passed so all of this was really was at the time really very new. Absolutely. I mean before 1970 you had no EPA. You had no clean air act that you had no clean water rock you know had no federal has this waste. Well and there really were hardly any state analogues either. It was a law which was fairly nonexistent. The pollution control area.

There was a rich history of natural resources on natural resource management but in the control area there really was very little except the common law and the other I guess I want to round out the story because I kind of like it and you tell in the book is the fact that here you are an undergraduate and part a part time to make some money or working as a bartender. MARTIN Oh cool about it and that one night you were talking with somebody who was there in the bar and then you find out that he was somebody who worked he was a corporate officer for a manufacturing company here in Champaign Urbana and so you were talking with this guy and you said well I'm going to go on to be an environmental lawyer and the man urged you to find some other line of work I'm sorry her career aspirations because he said environmental law just a fad. It's a craft ideas it's a great story and obviously you believe that in fact it wouldn't and it turned out that you were right and he was not. Yeah it turned out I was right but as I pointed out actually an introduction to a book and it took me a while to realize that there was actually a lot more force to his intuition than I assumed at the

time it's time I just sort of dismissed his comments is that it didn't understand what was happening. But the fact is when one actually starts to study environmental law it's amazing that it happened. Any political scientist or any scholar of government would have told anyone in the 1960s that these kinds of laws would never pass that you would never get Congress you would never get the states that passed the kind of unbelievably sweeping and ambitious laws that were enacted in the 90s that it just it just would never politically happen. Well just I have a caller here and I try to make people wait forever so a couple minutes here. We'll get to the caller but know that you have. You have said that. And we some we can talk about in some depth maybe but give me a thumbnail sketch give me your top two three factors what came together to make it possible for environmental laws to be

passed in the face of opposition and in forces that would seem to have worked you know been been set up against it. Let me give you a sense of what the main obstacle and the main obstacle that pharma lost faces is as follows. And that is by the laws of nature what happens in the ecosystem is whenever there's any kind of pollution politik to be tends to occur in one place and the consequences that tend to occur at a different place is quite far away. And similarly you have pollution that occurs at one time but the consequences are often realized at a different time so there's a dramatic spreading out of cause and effect environmental law what it does is it regulates people and activities at one place and at one time. The benefit of people at another place in another time. Very hard to pass that kind of law because you're basically imposing costs on some people for the benefit of others

and it's very hard to get that kind of law through any kind of political system because you're asking people to impose costs on themselves for the benefit of others in distant places and different times. And what happened really quite amazingly in the NT in 1960 is that people were able to bridge that spatial and temporal divide and they began to realize how much they had at stake. And there were several things I think that that led to that. The first was that there were writers like Rachel Carson. There were writers like Barry Commoner there are a series of writers who captured the imagination sometimes the fear of the American public. And when people began to realize that the miracles of modern chemistry which were widely trumpeted heralded in the 1950s and 1960s also had hidden dangers things chemicals which once perceived exclusively is really a disease and increasing productivity were now projected to actually pretend a possible Silent Spring in Rachel Carson's words that the

atom which was viewed as a potential source of boundless energy was instead being promoted as possibly capable of destroying life as we knew it. Strontium 90 produced. From nuclear reactions could pose hazards for generations. One of the things that I thought that was one of the it's interesting though. Look back in 96 and try to understand the dynamics of what caused people to sort of move towards the enviro movement with space exploration. Space exploration was something which I think everyone at the time thought would show how far technology could reach and how far we could open up our horizon for the future. But the impact on the American public of seeing those first images from outer space of the earth was exactly the opposite. It made the earth seem really fragile. It made it seem very confined and very vulnerable and it emphasized our sort of limits rather than our potential. The last thing I think which undoubtedly played a major role in the 1960s leading to this explosion is that it's

in the 1970s was we had a nation and as many of us remember well I remember being on campus at the time in the 1960s and growing up in Urbana Illinois. We did nation torn apart a nation torn apart by war. It was a nation torn apart by race was a nation torn apart by a series of really profoundly tragic and sad a political assassination. And one environmentalist at the time of the Earth Day in the spring of 1900 the offered was possibility of hope there was positive consensus a possibility of thinking about the future it offer the possibility of building bridges between generations one at a time. The term of art was generation gap rather than a bridge between generations and it by many law provides a political opportunity for people to come together and try to reach beyond the negative and to find something positive to address and reach for a better future. Well we have a caller would get right to him for anybody who is just tuned in I'd like to introduce Again our

guest Richard Lazarus He's professor of law at Georgetown University and a special area of interest is environmental and Natural Resources Law. He's the author of a book that looks at the history of environmental law over the last several decades and that was just published last fall by the University of Chicago Press. And that is the making of environmental law. So if you're interested in reading on that subject you can seek out the book. He's joining us this morning by phone and we'd be very happy to have questions. 3 3 3 9 4 5 5. That's the number for champagne Urbana here where we are there is also a toll free line. So no matter where you are listening if it would be a long distance call use that number that's eight hundred. 2 2 2 9 4 5 5. We have a caller here ready to go in the champagne I believe. Line number one. Hello. Hello yes yes I actually have a question a little bit more towards the future of environmental law. It seems that one of the trends that that's moving forward has a lot to do with making a higher degree of accountability for the

costs and environmental controls you have things like measure 37 in Oregon where if a person is deprived of something because of development restrictions or there are some other examples of environmental regulations imposing costs then somebody has to reimburse them for it and it seems to be a way to sort of undercutting these generally beneficial regulations. I think my leanings are a little clearer on this but where do you think this is going. I mean we have we you know as you said we passed a lot of sort of very sweeping laws that would impose costs on. People for benefits of other people. And the argument to counter that and to essentially get rid of the is that the costs the direct costs are unfair. So as a result as a lawyer and historian where do you think that's going to go in the future. And I'll just listen here. The caller's absolutely right. Ever since the statutes were passed in 1970 there has been sort of a drumbeat of a counter movement

basically to try to you know slow the implementation and a lot of that has been done to try to suggest that the cost of the laws are too high and that the cost that the government should reimburse people for any of the costs that they have to. Office until recently most of those reform movements some of them have been in the context of regulatory taking claims based on the fit of the Constitution claiming the statutes are unconstitutional have failed. And then there been several measures like measure 37 in Oregon which purports basically to require the government to pay property owners for every bit of lost economic value they suffer as a result of invitation or most action. I think those laws I think in the long run they're unlikely to go very far because I think once people realize the implications of these kinds of statutes it sounds really fair on its face to say that well if the government

does something which cause has an adverse economic effect then the government has to pay for it. Problem with it is that if the government pays for every cost it will very quickly shut down because the government has no ability to turn around and recapture the benefits. And every time the government does anything for its environmental statute which has a very significant economic benefit for somebody the government has no ability nor should it turn around and say to somebody well since we don't thing which is create a benefit we're now going to tax you to recapture that benefit. And unless the government can do that which it can't it can't be expected to pay all the costs either. Instead the fair approach here is you have to assume I think it's a fair assumption that the statutes basically balance the benefits and burdens of having a society to a certain level of virus protection. And sometimes people pay costs and other times they enjoy benefits in the in the long term everyone enjoys the benefits of the statute the statute's back several decades ago were viewed I think exclusively as sort

of disruptive economic. Expectations people view them just as having cost. These days I think the awareness is much greater that we all have a long term benefit from it that there is a basically a billion dollar pollution control of history of the United States that people's land values now very much depend upon a viral protection industry enjoys the use of cleaner water and cleaner air for its workers. So I think it's a mistake I think Oregon measure 37 is a classic example of a state to say that government's got to pay for every isolated cost because very quickly if it has to do that it will not enact these laws at all. And we will all be paid much greater cost a long time. Hope that gets at the question the goal we have someone else here again and champagne. One number one hello. Hello. I have a question. A tactic perhaps as any one ever thought of charging the person who is the receiving the payment

for loss of the benefit because they also benefit. And it seems to me that benefit from whatever the action is might even be greater than their loss. I think that the. Yes there has been discussion of if you're going to have laws which say that the governor has to pay the cost. That in fact you should make sure that the government is also recouping the benefit. Yes well I'm thinking of the person in particular who claims the last. Yeah I know and I think it's I think the government decided that in the courts a gym decided most legislation decided that it's better just simply not have the government in the business of trying to make all those kinds of Sif a calculation. Well I'd agree. I agree but I was trying to be a Mac of value but it is certainly true that what people often say is that the statutes are often referred to as taking. But the fact is the statutes are really also giving absolutely hell and that you shouldn't just look at the taking part of the equation. Once you look to the giving part of the equation as well. I think

that it's one of the best defenses you have of the statute. Well best wishes and I hope you have great success. Thank All right well thank you for the call. Once again questions welcome. 3 3 3 9 4 5 5 toll free 800 to 2 2 9 4 5 5 our guest Richard Lazarus He's professor of law at Georgetown University and we're talking about environmental law and how it is we have that with the laws that we have. How well they have served us and your questions comments are welcome. Going back to talk a little bit about the. The atmosphere at the time in around 1070 you talked about some of the forces that came into play there were a lot of people that of course were very articulate powerful advocates of the idea of environmental protection but it seems almost a little bit ironic that the the the man if the man who is really you know in large part responsible for the fact that we have the EPA and that we have no the Oceanic Atmospheric Administration that we have the Clean Air Act is Richard Nixon a guy that you know in particular think of as being a great

progressive. How was that. It was this happened in the in the Nixon administration. Yeah it's the fastenings story. Richard Nixon's involvement here you know basically Richard Nixon you know was elected president and of every 68 inaugurated in 1969 and and President Nixon pretty quickly identified enviro protection as what he thought would be a very good political issue. And he had then a fied as his chief rival going into the 1972 presidential season several years before. After that Ed Muskie from Maine and Ed Muskie at the time was chair of the Senate Committee on a farm a public works. And so I want to had in the late 1960s early 1970s was literally a competition between Richard Nixon and Ed Muskie who could sort of capture what they thought looked like a very big potential pro-environmental vote. Winter 1970 actually kept competing for who could propose a tougher Clean Air Act One would do it the other would respond and you

ended up with us with a law which was incredibly tough as each one basically thought that they were going to become the premier environmentalist. What's interesting is that Richard Nixon was a really thoughtful did a lot of very serious nifty things in favor of protection. In 1969 in one thousand seventy including the quite thoughtful message the first and last ever presidential Marnell message in February 97 a very thoughtful speech by Richard Nixon. But after the congressional elections in 1070 within about a year or so of that Richard Nixon pretty quickly changed his mind. If you go back to the Nixon Papers Ehrlichman and Haldeman his chief advisors you see the notes that were taken during the beating Richard Nixon pretty quickly decided this was not a good political issue that he was getting nothing for it. And he told his advisors he said he said basically 90 72 or 73 said it's time for us to get off the environmental kick we've been quote sucked in too much by the

environmentalists. In a private meeting with some auto industry leaders he said environmentalist are enemies of the system. We want people to go back and live like a bunch of animals. So Richard Nixon. The switch he decided was a political issue and he vetoed the Clean Water Act of 1972 impounded the funds of the course at the end of his second term was obviously engulfed by Watergate. But he did a pretty interesting about about face on the other hand. Absolutely right. In those early years in sort of jump starting the whole federal statute program Richard Nixon played an absolute key central role. Let's talk with another caller we have someone in her band on the line number one. Hello hello. I was thinking about the economics and so forth. How narrow people think narrowly people think and I'm thinking particularly of something like the ABS problem in

in the north Alaskan wildlife area and so forth and the oil and how people are so eager to make gasoline less expensive and so forth and how short sighted that is. When you think of how expensive everything's going to be if all of that damage is done and we have higher water and and so forth. Yes the Alaska the Anwar Alaska National Wildlife Refuge controversy right now is sort of a classic example of the kind of spatial problems which in Barbara law presents because it's very very easy to simply take all the oil and petroleum out of that area for our enjoyment down here because people never actually have to see what's going up in Alaska. But but I underline I think that the caller's concern is a very profound threat right now to environmental

statute and I think one of more significant ones the nation has faced in decades and that is currently consumption patterns. The United States which is really what's driving the potential in tapping the petroleum reserves in Alaska consumption patterns the United States are are basically going out of off the roof right now. Along several dimensions. Well another example I think I have is as a matter of the clean air and so far I think we have all the expensive medical care. And yet if we don't protect the areas that that keep the health right like the air and so far and the water and so forth then the medical costs will go even farther to the roof. That's right there's no question that we spend too much at the back end and not enough at the front end. We've had dramatic success for instance in bringing down a lot of the

classic air pollutants during the past several decades. B they've gone down basically by about a six principal polluters have gone down by 25 percent in the last 30 years while our gross domestic product is going to buy a hundred sixty percent. But with that said it's only recently begun to regulate a particularly really small particular pollution which has a huge impact on the hospital admissions on people's daily lives and ability to work and specialist matics and young children and the elderly. And as you point out that the cost to society the medical costs society of taking care of these vigils is dramatically small. And the control cost EPA recently in the 1990s did a cost benefit analysis of the cost. They as a result of these reductions. And it's overwhelmingly in favor of coal. Thank you. All right thanks for the call again other calls are welcome. 3 3 3 9 4 5 5

toll free 800 to 2 2 9 4 5. It was since the subj of NY has come up it may be a bit of a side issue but I'm interested in having you talk a little bit about it and what strikes me is is the remarkable persistence of this as an issue that it is true that we need oil and the demand is very high and there is oil there. And the argument on the one side is made that we should go and exploit that resource on the other side. Environmentalists for a law. Long time have been saying the that it's one of the few pristine areas that there are left and make the argument that to develop that resource would be expensive it would take a lot of time and at our present rates of consumption it would be used up pretty quickly right. Just recently in fact I think I read an article saying that now even the oil companies are saying we don't care. We have even if you what even if you told us we could go we're not going to do it. And yet now for decades this issue seemingly will not die. Which in my mind suggests that the symbolic significance may be

far in a way more than the significance of the oil that's there. You're absolutely right. And candidly both sides will tell you that. The environmentalists will tell you that that this is a sort of major symbolic battle and I think very significant one because they view it as if you if they lose Anwar then a lot of other things will will fall and for the oil industry it really is not something which holds extraordinary promise them. This is something which has been captured very much by the politicians and it's a very important symbolic battle but it's not one of the more important one. Right. It is. Do you think it's likely that those people who are arguing that the resource should be exploited will will they will they give up will they abandon that or are they just going to keep on. Now they'll keep on and they're likely to win. I think the best gas right now is that that legislation will go through. It will go through a probably

this spring and if not this summer and the way that it will go through is also I think somewhat significant in terms of thinking about how environmental law has changed over the past 30 years. If you go back to the the role of Congress and the Abramoff statute 1970s Congress passed these very very dynamic and sweeping comprehensive laws dealing with you know air water endangered species have to follow the hazardous waste sort of one very sweeping law after another and they were done in a legislative process which was which was quite classic. It would be considered by a certain committee that was expert in the area that committee would issue a report after holding you know months and months of hearings. It would go to Congress passed both chambers maybe have a conference committee and then finally be signed by the president. Congress doesn't pass laws this way anymore. And those statutes by the way were always all always passed by very very wide margins with bipartisan

support. If you fast forward now. Congress doesn't pass any environmental laws any more that way. They certainly don't pass anything with bipartisan support. And the way that the ad war Alaska legislation is likely to pass is indicative because what will happen is it will not probably pass as part of a straight up statute is probably going to be buried in about a 3000 page of a budget bill where Congress has to pass something or to keep the federal government open and then they have to they throw in all kinds of little miscellaneous writers sometimes which people don't even know exist at the time that they passed and vote on the bill. And my guess is that we were finally going to see the Alaska legislation slip through Congress it will be put in part of a two or three thousand page of this bill. As a practical matter people won't be able to vote against the bill because they can't afford to have the government shut down and it will finally squeak through. But that's a far cry from the

kind of really bipartisan thoughtful deliberative process I think that marked a lot of congressional legislation in the 1970s and 1980s with with bipartisan support. Our guest in this part of focus 580 is Richard Lazarus. He has been involved. In shaping the development of modern environmental law in a lot of ways at least and have been involved in many of the important issues he's been a litigator for the Department of Justice Environment and Natural Resources Division and assistant to the solicitor general also a member of the advisory boards of the EPA. The World Wildlife Fund the Environmental Defense Fund He is professor of law at Georgetown University and teaches their environmental law and natural resources law. If you're interested in reading some on the subject that we're here talking about you can look for his book The Making of environmental law was published last fall by the University of Chicago Press and indeed looks at how it is that environmental law has developed over the last several decades basically going back to the 1970s and taking. It up to the present

questions here are certainly welcome. 3 3 3 9 4 5 5. We also do have a toll free line that's good. Anywhere that you can hear us that's 800 to 2 2 9 4 5 5. We have several callers here ready to go first in line is someone listening in Savoy nearby. Line number one. Hello. Oh hi how you doing. But yeah hey this is an interesting subject you know we've we've you know we've worked on a number of projects one of them recently is A is A. You know the automotive industry and they have to meet the CAFE standards they say that they need magnesium. And there's only there's only two domestic suppliers of magnesium in North America. And the reason that a new plant hasn't been built is it's so expensive that they'll be spinning. Right. That you know how to meet all the standards and in particular one of them that's very difficult to meet is people split hairs over how

many nanograms a year of dioxin comes out of these things. And people just throw their hands up in the air and they say well they are not going to build it. And I'll tell you where they end up getting built. They end up getting built in China right. And whenever you look at the process that they used to make magnesium that the automobile industry uses to meet the CAFE standards you know it would make even then it would make even a staunch environmentalist point to why why are we doing this right now. I understand you know we've worked in environmental law for many many years in this country and we've helped many many companies. I'm here to say that there's no major potion going on in this country with an up front company. And and it's been that way for a good 20 or 30 years. But I'll tell you the laws have reached the point now where people are they're not satisfied with the with the old standards. They keep

increasing them increasing them increasing them. And what happens is is you end up sending something you end up creating a disaster in China India and Lord knows where else. You know that's gotta stop because we need we need these industries and the jobs here in the United States. And it just seems like that has to be taken into account. And you know and I wonder when it's going to start. I think the caller's made I think two extremely important points of the first is that no question that one reason why the United States has enjoyed the success it has in other words the ability to bring down so significant the amount of pollution domestically is that we have export a lot of it that we have exported a lot of the pollution the series to other countries and that allows us to some extent have our cake and eat it too.

In terms of consumption it doesn't allow us to have our cake and eat it too in terms of employment. But there's no question that it's not a not a complete answer to simply export these very dirty police facilities to other parts of the world which is why international law now becomes so important to level the playing field. The other point that the caller makes which I think is equally important is that one mistake the statutes do tend to do and they need reform is they tend to focus too much on just a few sort of most obvious sources of pollution. The most sort of large facility. And you can only squeeze so much blood out of them. Yeah that can only go so far and what happens is there are a lot of sources which are really exempt. There are a lot of different industries which have managed over the years to get one loophole after another. And so what the statute the regulations do they keep coming back over and over again to the same players.

And that's simply not fair. Nor is it economically efficient because you could get but there's a lot of low hanging fruit out there. And I think that there's no question the statutes need to be redirected and in part they need to regulate. They need to influence demand it of just going after the manufacturers a lot of the source of the problem right now are people's consumption patterns and how much they drive and how much they unnecessarily expend resources. Now you know everyone focusses you know like we've been involved in you know I've been on these white metal projects for it's mainly automotive content. Another thing that you could do to you know improve the situation in the automobile. And really what you call the durable goods industry is to make stuff more reliable right. And make sure that it always works and that it is always and you know I think that that's Wepa side. Yeah if you look at the consumption pattern right now people used to you know keep

their electronic goods on average about 12 years. They now throw things out just every every couple years and there is no question that there's a lot more personal consumption weight going on and there appreciate the comfort of the car I've got several other people for me. Forgive me if I'm going to want to get some others in. And also just real quick though the raise another question that I think that I think he doesn't and it may be that this is more of a question for in economist but I expect that you might well have something to say about it and that is so often when we talk about environmental protection there are people who would say OK you've got a choice you want your clean environment fine but you cannot have a clean environment. And a vibrant economy both you must choose right. And I think the short answer to that is that we've proven just the opposite. In the United States in the past 30 years there everyone not everyone but many prominent people said just that. In the 1970s. That you basically if you had these kinds of stronger protection laws it would lead to economic

ruin. And in fact we have an act. We have an economy in a nation which is stronger than it's ever been before and we've averted the kinds of disasters that have occurred in that other nation. And we right now we have a much greater awareness that actually our economies often depend upon these laws doesn't exist despite them exist because of them. The tourism industry of the United States the fishing industry in the United States the silicon chip industry the United States which very much depends upon you know clean water to be used. I think we're much better where that protection environment actually helps our economy. It doesn't destroy it. We have about 15 minutes left the lines of falso will get right down to callers again. Just one more time one introduce our guest Richard Lazarus He's a professor of law at Georgetown University where he teaches environmental and. National Resources Law 3 3 3 9 4 5 5 year for champagne Urbana toll free 800 to 2 2 9 4 5 5. Next caller up is in Champaign County at line 2. Hello.

Hi good morning. I wanted to get something else later about but do them for folks at the rich or be reminded of Larry Summers folk pop when he was at the World Bank and issued this memo that said that polluting industries should be done in third world countries because people's life expectancies were lower there. Real real obnoxious thing to suggest. But in the other point on that is that there's a circle of poison to even though the most polluting part of the production process is done somewhere else that the stuff gets shipped here and there's a lot of questions about some of the some of the stuff that gets shipped into this country and how it how it's transformed but what I wanted to get to was the business about emissions trading etc. and how that evolved. It seems to me that the Kyoto Accords were tailored so that the US would be interested in them that the theorist's of the emissions trading scheme from the US and it was pattern on the mercury

standard training power plants here and it's kind of ironic that now. The U.S. even though it was sort of tailored to the U.S. purposes finds other reasons to object to it mainly again lesser developed countries involvement in it. But just to bring it really right up to date I guess last night the U.S. torpedoed a Mercury A. Regulation that would be sort of some kind of world wide I didn't get all the details on that I'm sure you know them but it's kind of ironic that that this is going sort of going back to the earlier idea of regulating by. And by a penalty and in a sense and I think what you can argue one way or another about the whole efficacy of of it but it seems that to me that mercury is such a devastating pollution so so long long long lasting that if there's one thing that we could should be able to agree on to to have

absolutely no standards to it would be that. So I'd like to hear the response that not just hang up thank you. OK. Oh yeah the caller is quite well versed on the role of radio emission policy in code and he's absolutely correct that the trade mission aspect of the Kyoto Treaty was very much tailored towards United States United States played a major role in the fashion of that part of the treaty it was built upon the Clean Air Act amendments of 1990 and things which had a fairly widespread support at the time from both people on the Republican side of the aisle and people on the Democratic side of the aisle. And it was a major blow to that treaty than the United States turned around in March of 2001 and basically indicated that it would no longer go along with that treaty. That the mercury issue which the caller identified it's a really interesting one it's very interesting one domestically as well as internationally because it actually is an example of the kind of

polluted which probably does not lend itself so readily to a tradable emission policy the way a tradable emission policy works. Environmental Law says. All right. We want to try to figure out how to get to the right level of mercury admission and the way we're going to do it is NOT tell each individual source how much to put out. Instead we're going to say well there can be a total of 100 units of this put out and then we're going to basically let the different sources decide for themselves by buying and selling right to those hundred units which one's going to put it out and which one instead is going to have to reduce their emissions. But the premise of a trail admission policy is that we don't care which one of the sources put out. Pollute we don't care whether it's for instance the acid rain area we don't care whether it's a power plant Illinois or a power plant in Indiana or a power plant in Kentucky. As long as the total some emissions from all those plants together is not over 100 units. We don't care which one does it. We let

them fight it out and buy and sell pollution right between them. That works for certain kinds of pollutants. It works for climate change pollutants work for carbon dioxide emissions. It works for sulfur of its mission. It doesn't work so readily from birth readmissions for reasons intimated by the caller. Because it does make a difference which facility comes out of because Mercury 10 it's a heavy metal it tends to basically have to create concentrated hot spots. So it we're not indifferent to whether it comes from one facility or another. We tend to care a lot about it so it doesn't lend itself readily to a tradeable emissions approach. Go to the next caller in line that's line three or better. Hello. Hello I would like to hear your guest comment on this. Bestest in the environment and whether or not there's laws protecting the general public and to situations come to mind for me one of us. I think I've read that brake linings

continue to contain this best as the general public would be exposed to the break just as as well as people would be changing very in shops. And then the second instance is 9/11 when the trade towers went down it's my understanding that that dust cloud had a significant percentage of as best as fibers in a tin. So it appears a lot of people were exposed as best as so in general I'd like to speak or to comment on the specialists issue and the laws related to it. Thank you. OK can you do. Yeah the color is actually identified a sort of the the one of the main Achilles heels of environmental law an area which the United States has really accomplished far far less than it has in other areas. What the environmental statutes tend to regulate very well and very comprehensively is the outdoor environment. What happens in what's referred to as the ambient

air and the ambient water by contrast the statutes really pay very little attention to what happens indoors. In terms of construction materials in terms of indoor air pollution and the like. So while we have very very tough controls on the outdoor environment we have relatively weak controls in terms of hazards and safety in the workplace. And as a result as best this is a classic example of that which poses very serious health hazards in the indoor environment. But it's not regulated all that. The Clean Air Act doesn't apply indoors. It just applies outdoors. So in the World Trade Center comes down if you have an indoor problem which is basically a converted outdoor problem but it was never regular in the first instance by the federal state is very little regulation of the indoor environment. To the extent that Congress at one point really did try to regulate especially this in a more comprehensive fashion and that was under a statute

called the tie. Except Control Act. Basically the EPA is efforts one of the few efforts to go indoor was basically dismissed. They lost a very significant court case Balbina specialist a couple decades ago because that was a statute which required EPA more than the others to consider both the costs and the benefits in EPA and it being so mired by judicial review of its efforts to do so that we had very little regulation indoor pollutants and inspectors in particular. Let's go to Chicago next long and wore yellow as a footnote to something your problem with I was a bike an hour back in the sixties and one of the customers that came in regularly for that lunch was a group of oil executives and part of our chatting conversation that would bring up once in a while but everybody going to dump the foil and cured of whatever waste and other product they had no concern about the processing of safeguards and so forth but were going to rob are going to dump it over going to

downtown and that seems to be their song for quite a while but then on that global level we have different reading of the Nobel Peace Prize to the. One of four books relating to the map of who pointed out the very stream upon which you and all the names were living and raised and nurtured and arrogating their crops has now been spoiled to you know contamination from the pollution standards that were lacking and so we have a thing like I say from way way back right up until today and we're still talking about getting peace and harmony with the environment having been so important and as your stated way back about the space program noticing the fragile Nations the nature of the earth as an oasis in the universe. As I took it to be something that's been lost upon people.

And that we have to recognize the fractal nature of the environment more so than it's been spoken about. Look at the recent environmental laws that have been developed as a result of smoking. People like nonchalantly and now we find out that second hand smoke is that I have to have a film I really really have to have more publicity on it and I like you for all the things you're doing Thank you. Thanks very much. Make that call also reinforced my view always. People need to watch what they say their part interests you. We will come back to haunt you if we listen more carefully than they may think I do. The caller's point about the oil executives back in 1969 I think also provides not to comment on another very significant development environmental law during the past several decades and that is I think that for many companies a lot of corporate officers attitude towards the environment and towards viral pollution have dramatically changed as a result of these laws these laws are in place now for several decades and I think people who sort of assumed that they could just do things like that just dump the

oil somewhere. It's really more of the renegade that does something like that. A very few of the of the major corporations responsible officer would do that. And partly that's because the statutes have not just as they can. Civil side there was the criminal side. And when you have very tough laws as they are these are very expensive laws for compliance. One necessary effect is it makes it very profitable to commit a crime. Because if you're going to save a lot of money by not complying with the statute. That means that there's a huge incentive at least for me to climb and in the short term but the statues had 1000 70s and the 80s was the indirect effect of promoting crime. You had actually organized crime getting involved in the pollution control business because they could make a buck they could make it in drugs they could make it possibly gambling they could make it in pollution mismanagement as

well. And as a result of the 1980s and 1990s the federal government and now the state local government dramatically upped the ante in terms of criminal enforcement of the environmental statutes and they went after corporations officers organized crime officials were starting to basically flout these statutes in order to save millions of dollars because you need to have a very a very rigorous in criminal enforcement arm of the law. And we've enjoyed that now for a decade plus and I think that has had a major effect on people's attitudes. There's nothing that brings the lesson home and a bore focus fashion that actually say if you do this this is like murder. This is like this is the kind of thing which receives the society's greatest connotation to such an extent they're willing to take away your liberty. And the moral stigma associated with the criminal Foresman of our federal problem statute I think is a great service in making

people realize the importance of the statutes and what the stakes are if you actually take something and dump it in a waterway the kind of damage you do to people. The damage you do actually goes well you know I think probably at about this point we're going to have to stop and I must apologize we have a couple of callers we're not going to be able to take but we have used our time if there are people who are listening who are interested in reading more on the subject however looking at how environmental law has developed over the last few decades. They should look for this book that we mentioned a couple times by our guest It's titled The making of environmental law was published by the University of Chicago Press last fall I'm sure could be found in the library or the bookstore are guests in this hour of focus 580. Richard Lazarus is professor of law at Georgetown University and a graduate of the University of Illinois here in Urbana-Champaign oppressed Lazarus. Thank you very very much for talking with us. Thank you so much.