What is it? Not a regulatory policy or code of conduct Value-based platform with 9 principles (human

rights, labor, environment) Companies voluntarily commit to participate

Agree to publicly post steps taken to comply with principles (www.unglobalcompact.org)

Uses power of transparency Disseminates learning and good practices

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The Secretary-General asked world business to:

Principle 7: support a precautionary approach to environmental challenges;

Principle 8: undertake initiatives to promote greater environmental responsibility; and

Principle 9: encourage the development and diffusion of environmentally friendly technologies.

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Objectives Getting beyond risk regulation to goals of

technology Agenda setting

Upstreaming of public inputs Science

Reforming intellectual property rules Transparency

“Engaging” publics in environmental accounting

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1969: National Environmental Policy Act 1970: Formation of EPA, appointment of Administrator William Ruckelshaus 1973: “Saturday Night Massacre” 1983: Second term: “At any rate, here we go again.”

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Categories of environmental law Public law (regulated by statute) Private law (regulated by common law) International law (treaties, “customary/soft”)

Divided responsibilities (federal and state ) Commerce (interstate) vs. land use Environmental medium vs. stationary source National unity vs. local autonomy

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Legal (statutory) mandate: who is responsible for what? Administrative process: agency implementation

Proposed rule (based on expert advice) Notice and comment Hearings Inputs from experts and citizens Final rule

Judicial review: on what basis? Unconstitutional: challenging the law (American Trucking) Unlawful: misinterpreting the law, going beyond mandate Unreasonable: no “substantial evidence”; arbitrary and capricious Inaction (e.g., early NEPA litigation, Mass v. EPA)

Modified rule (or stalemate)

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Environmental disaster or chronic pollution event Basis for private lawsuit

“Duty of care”: some basis for responsibility Evidence of harm: burden of proof on plaintiff Evidence of fault: negligence or lack of warning

Daubert admissibility criteria for evidence Testability; error rate; peer review; general acceptance

Trial (before judge or jury ): rare Appeal: issues of law at trial; size of verdict

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What sorts of entities are these: Unreasonable risk Fine particulate matter Chemical carcinogens Endangered species

How do we know that they exist in the world (regulatory law and regulatory science)?

Who brings them into being (Congress, agencies, scientists)?

Can we make them go away (litigation)? Should we?

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Many aspects of regulatory science are “constructed”, i.e., affected by social assumptions: Methodology (e.g., which surrogate species to use; how

to extrapolate from animal to human; how to measure stress from breathing ozone; who to include in clinical trials)

Evidentiary framework: e.g., risk (get the numbers right) vs. precaution (err on the side of caution)

Disciplinary biases: molecular, organismic, ecological Social, cultural, and professional biases

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History: Nationwide rise in respiratory illness Six Cities Study and (challenged) peer review

Ozone and particulate matter (PM) NAAQS “fine particulate matter”: <2.5 micrometer, PM2.5

Litigation against EPA (“Whitman”) Unconstitutional delegation No cost-benefit analysis

Unanimous decision upholding CAA (2/2001)

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The important thing to understand is that the case for pollution control isn’t based on some kind of aesthetic distaste for industrial society. Pollution does real, measurable damage, especially to human health.

And policy makers should take that damage into account. We need more politicians like the courageous governor who supported environmental controls on a coal-fired power plant, despite warnings that the plant might be closed, because “I will not create jobs or hold jobs that kill people.”

Actually, that was Mitt Romney, back in 2003 — the same politician who now demands that we use more coal.

How big are these damages? A new study by researchers at Yale and Middlebury College brings together data from a variety of sources to put a dollar value on the environmental damage various industries inflict. The estimates are far from comprehensive, since they only consider air pollution, and they make no effort to address longer-term issues such as climate change. Even so, the results are stunning.

For it turns out that there are a number of industries inflicting environmental damage that’s worth more than the sum of the wages they pay and the profits they earn — which means, in effect, that they destroy value rather than create it. High on the list, by the way, is coal-fired electricity generation, which the Mitt Romney-that-was used to stand up to.

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