[MUSIC] Welcome to week three of Environmental Law and Policy. We're going to build on what we learned the first two weeks. And in particular, focus on government's use of the police power as opposed to the common law. Government's use of the police power when government enacts legislation, statutes, to address environmental problems. And what better way to start, but in Thomas versus Peterson. Because this is a case that involved one of the most important environmental statutes ever passed in the United States. And, as I'll point out at the end, one of the most copied environmental statutes in the world. Nez Perce National Forest which is where this case is situated by the way is just beautiful. It exist in the northwest part of the United States in the state of Idaho and by the way this is land own by the Federal Government. That's one way to solve a open access commons problem, don't make it a open access commons. This is Federal land with a manger. The United States Forest Services that manages this national forest according to a variety of statues that have been passed over the years. In which we the people through our Congress in the United States express our will about what we want out of this forest. I'm going to look at one of those statutes, the National Environmental Policy Act, which was enacted in 1969. Because, not only does it apply to the Forest Service in this case, but it applies to all federal agencies. When they do a whole range of things affecting the environment, generally. And to that extent, it's quite a central statute in environmental law. I want us to look at this in two ways. One, I want us to look at NEPA as it's called Conceptually. And secondly, I want us to start to look at it technically. And use this statute as a way to learn how to read statutes. In much the same way we use simple common law cases to learn how to read cases. But let's first introduce ourselves to this statute conceptually. Conceptually, NEPA addresses an assumption that we made when I talked about the tragedy of the commons. Which is that the actors have full information about the consequences, the environmental consequences, of their action. That assumption needs to be relaxed because it is almost never true. Information about the environmental effects of things like pollution or the environmental effects of our disturbance of nature are rarely available. And there's a reason for it. Generally speaking this type of information is in the nature of a public good. Meaning once it's acquired, it's not that people can usually profit from it individually. But instead it's available for anybody or everybody to use. And consequently the market will tend to under produce information about the environment just like it does any other public good. Let me give you an example about why this intuition is true. Here is a something that may be familiar to many of you. This is a box of cereal with a famous actor right on it. the actor is Tony the Tiger. Tony the Tiger and I by the way, entered this world about the same time in the middle of the 20th century. And while I don't know the details, the company which markets sugar Frosted Flakes. And introduced Tony the Tiger as the spokesman for this product over 50 years ago. Has spent considerable resources investigating marketing data about how this tiger might appeal to various demographics to which it wants to sell the cereal. And Kellogg's, the company that makes this product will invest money in that type of information because they can, it can profit from it. Compare that to information about real tigers in the world. And I dare say that we know more about Tony the tiger than we do about tigers in general. And that might be reflected in the longevity of these two different tigers. Tony the tiger is going on his 60th year, his sixth decade. Real tigers, over the last 100 years, have all but been extinguished from our planet. There are 97% fewer tigers in the wild now than there were 100 years ago. That, of course, makes it somewhat academic whether we can get information about them, because that information is probably going to come too late. But it helps make the point. One of the reasons we might know more about Tony the tiger than we do about real tigers. Is that it's hard for the market to produce information about real tigers that people can profit from. NEPA is designed to fill that gap. It is an information forcing device, designed to force federal agencies before they act, to look before they leap. To have a sense of the value of the various ecological parts that they might be disturbing. Because, after all, there's a very famous philosopher, the ecologist Aldo Leopold once said. The first law of intelligent tinkering is to not throw away parts, certainly until we know the value of those parts. That's what NEPA is designed to address. Now let's look at NEPA Technically. NEPA requires all federal agencies which are those agencies that are part of United States government. Whenever they're going to take actions that significantly affect the human environment, to evaluate them for their environmental effects. Let's step back for a moment and make sure we know how to apply just this language in a technical sense. If I were to tell you that the city of New York, after super storm Sandy, a huge hurricane was thinking about dredging its harbor. And throwing out wetlands and building up concrete barriers. And effecting the environment in that way. Would NEPA require the city of New York to do an analysis of that action? What do you think? Hopefully, you said no. Not because the city of New York shouldn't look before it leaps, but because this statute is directed towards federal agencies. And the city of New York is not a federal agency. You need to read statutes carefully. What if a private company, let's say Exxon oil company. Was going to drill for oil offshore in the ocean. Maybe even in a fragile part of the ocean. Would this statute require Exxon to do an analysis of the possible environmental effects of it's drilling? Hopefully at this point I didn't fool you. The answer would be no. The Exxon corporation is a private entity. It's not a government agency at all, let alone a federal agency. Alright. Let's assume that a federal government was in fact going to give money to a city to build a road around the city. Something like a belt line, they're frequently called to help ease congestion. The federal government action would be the awarding of money to the city. One question is, would the building of this road significantly affect the environment? What if the city decided to build just this part of the road, the circular road, first? Could we ask ourselves whether just that part significantly affects the environment? Would that be the scope of the NEPA inquiry? The answer to that by the way is no. Part of the reason is that when you read the statute, in addition to the words of the statute itself, the section you're looking at. You need to see if certain terms are defined or elaborated on. Sometimes there are definitional sections in statutes that are quite important. And in this case, there are some implementing regulations. Some clarifying regulations that an organization called The Council on Environmental Quality, a government entity, issues to clarify what NEPA requires. And under the CEQ regulations, when you are looking at actions. It includes not just the particular action that's being taken, but any actions connected with it. And in this case, obviously, if you're just building a quarter of the circular road, you do so because you're going to build the rest of it. Just having that segment of the road would do nobody any good. It only makes sense when it's part of the larger project. So for starters, NEPA would require an analysis of the entire circular road. Because all of that includes actions that are connected to the building of that first segment. Let me ask you this question. Do you think the environmental impact of the road would be restricted just to the footprint? The footprint, the concrete footprint on which the road itself would be built. Or might it have other effects? The CEQ regulations require not just an analysis of the direct impacts of the entire action. But also the indirect effects, at least those that are reasonably foreseeable. Let me ask you a question. If you're building a road such as this that goes around a city, would you need to consider not just the physical impact of the road itself. But also the effect, let's say, on air pollution? Of the tens of thousands of cars that would ride on it ever week. Do you think that is a reasonably foreseeable indirect effect? I hope you wrote yes, because that's certainly, that is the way NEPA has been interpreted. What about this? When you build a road, like this circular road. Often, private developers come in and build developments near the road. Because the road, after all, brings people to those locations. Do you think NEPA would require an alaysis by the government before, in this case, it funds a road? Not just of the road and the air pollution, But also the environmental effects of reasonable foreseeable development, even if done by private individuals. What do you think? The answer, by the way, is yes. The CEQ regulations and NEPA generally have held that effects like this, indirect effects, need also to be considered. Well now we have this technical understanding of what NEPA requires. Let's see how it worked in Thomas vs Peterson. At issue in Thomas vs Peterson was a proposal to build a logging road that would look something like this, right on the Nez Perce forest. The forest service had to make an analysis under NEPA on whether or not this road would have significant effects. That's called a threshold determination. And by the way, if you conclude that this action might have significant effects, you have to do a full environmental impact analysis. The Forest Service looked at this road which was going to be built. And even though it was relatively close to something known as the Salmon river, which runs through the Nez Pierce national forest. A river, by the way, that's quite famous and beautiful. It's one of the recognized wild and scenic rivers in the United States. And even though the forest in which this logging road was going to be built was home to an endangered animal. The Gray Wolf, which at the time this case came down was listed as endangered, under a different federal statute. Even though, there were these nearby environmental ammenities The Forest Service concluded that there was not a significant environmental impact. And filed something, believe it or not, that's called a FONSI. A Finding of No Significant Impact. After all, the Forest Service reasoned, the road itself will take a few trees. Maybe here in this picture you can see them lined up against the side of the road. And what about that something, it's not a specially significant. Look at all the trees that are left on both sides of the road. And the road itself is hardly being built in the stream. So, it's not going to directly impact the stream. Nor do we imagine that any wolves will be killed in the building of this road. They will run away when machinery comes in. And the road itself will not directly kill them. Accordingly, the forest service issued a find, FONSI, and held no significant environmental impact. What did the court do when it evaluated whether or not the forest service complied with its obligations under NEPA? The court reversed the agency action, and by the way issued an injunction, stopping the building of the road. Until the agency correctly complied with NEPA and got the necessary information. The big problem the court found in the agency's analysis was that it failed to consider the obviously foreseeable, indirect effects of building the logging road. Principal among them of course is logging. As the court pointed out that's why you can call it a logging road. And there are going to be thousands, tens of thousands of acres that over the years will be open to logging because of this road. To properly consider not just the direct impact of the road. But the indirect effects of the, including the logging, you have to do an analysis of that disturbance. Not just the relatively narrow disturbance on the road itself. Moreover, you have to consider the indirect effects of the logging on the tens of thousands of acres. For example, the logging could definitely disrupt the terrain. And after rains, increase the flow of sediment down the hills into the salmon river. And the Salmon river, among other things, is famous for is salmon. These incredible fish that return from after spending years in the ocean to their place of origin in fresh water to lay eggs. Those eggs, by the way, are especially vulnerable to sedimentation, because they have high oxygen demands. And sedimentation from all those logging could affect the fish. That needs to be evaluated, that is certainly a reasonably foreseeable environmental effect of the logging. So too you need to consider the effect on the wolves. Once tens of thousand of acres are disturbed, and destroyed in terms of the tree cover. We have to know whether or not this will effect the wolf and its essential behavioral characteristics. Such as for example, its breeding needs, or its feeding needs, or its sheltering needs. We're not saying that the effect will be irreprable, we're say we need to know what it is. For those reasons and because you didn't do it. You did not comply with NEPA and you may not go forward with the road until you look before you leap. The requirement to do an environmental impact analysis may be the most copied legal requirement in the world. Over 60 countries have adopted this requirement patterned after the Federal National Environmental Policy Act. It is similarly echoed in at least four conventions, treaties on the, of the United Nations. And other entities such as for example The World Bank requires environmental impact analysis of major projects that it finances before it will finance them. To that extent, it is an especially significant feature of environmental law generally. Next time, we're going to look at another famous environmental statute. Sometimes called the most stringent environmental statute ever enacted by any country anywhere. The Federal Endangered Species Act in the United States. I'll see you then. [MUSIC]
