环境法可能是人类与地球耗竭之间存立的唯一制度；它需要人类自由与经济愿景的互相调和。本课程考虑上述问题，并为我们介绍包括管理污染、水法、濒危物种、有毒物质、环境影响分析和环境风险在内的现有的法律制度。
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环境法律和政策概论
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從本節課中
Property and the Environment
It’s impossible to understand environmental law without also understanding the important role that private property plays in people’s lives and the way in which property law recognizes these values. After using two cases involving property rights to water to introduce ourselves to property law, we’ll use the American constitutional approach to “takings” of property to determine when governments are forced to pay property-holders when environmental requirements infringe too much on private property rights. These cases are at the crux of an evolving philosophical dispute between whether we look at land merely as a personal commodity or as part of larger ecosystems that, often, demand recognition and require changes in personal behavior. In our “theory” session, we’ll introduce ourselves to a very powerful and famous economic model, the tragedy-of-the-commons model, that explains why markets often cannot adequately protect commonly held resources such as the oceans and atmosphere, and how legal regimes may be needed to correct the problem. We also post this week a peer-review essay exercise, which is mandatory for students wishing to obtain a Statement of Accomplishment with Distinction.
與講師見面
Donald HornsteinAubrey L. Brooks Professor of Law
[MUSIC]
Hi
and welcome to week two of Environmental Law and Policy.
A week in which we're going to introduce ourselves to the law of property.
A body of law that's important in its own right and
it's quite important to the study and understanding of environmental law.
In a few minutes I'm going to tell us a story and we're going to play a
game, involving property, before we look at the
cases I asked you to read for today.
But before we do even those
two things, the game and the story, I want to give us a little bit of
orientation to how important property law is considered
Through the lines of other bodies of law.
For example, in the United States Constitution, in the
5th and 14th Amendments, the so-called Due Process Clause.
The drafter of the constitution made it clear that
our government cannot deprive anyone of life, liberty or property
without due process of law.
Put another way, property was one of those
things that are so important to free people
that they needed protection from the state and
were given some in the due process clause.
Due process of course means procedural due process.
The government has to go through certain steps before
it deprives us of any of those three things.
But there's also an element of substantive due process.
That there might be
some governmental intrusion into these interests so severe that
in its own right it needs to be struck down.
Yet last week when we looked at the village of Euclid zoning
case the court rejected the argument that property rights are so absolute.
That they cannot be constrained by the greater power of
a local government to adopt zoning rules for the public good.
So property
rights are not absolute and never have been.
When people refer to things like God given property rights or natural law giving
property rights, at least in the US
system, that is incorrect and always has been.
In fact the Supreme Court, in yet other cases, has made it very
clear, that the constitution and natural law do not give any rights to property.
Property is entirely a matter of positive law.
Meaning to say, the statues and contracts and arrangements
that people make it doesn't come from any other source.
And of course you and I know that there's all different types of property rights.
There are so called real property rights which is
the right to real property such as land or buildings.
There is personal property rights which is the rights to things that we own
like the cash in our pockets or our clothes or bicycles or our cars.
There's even intellectual property of which we're all aware so if you
write a book or a song you get a copyright protection on it.
You own that interest in your intellectual property.
So to if you invent something and it's protected by a patent.
Whenever you have property rights there are a
variety of benefits that one gets with them.
So-called sticks in a bundle of sticks the property owners
have for example, you might have the right to exclude
others, say, from your land.
The right to sell, the right to use, and so on.
That in a nutshell is what property law is all about.
Let's play the game and let me tell you a story to situate property
a little bit more, in particular as
we introduce its relationship to environmental law.
Here's the game. I'm going to call this the devil's game.
And we're going to play other types of devil's
game throughout this course, but here's the devil's game this time.
And its point is to illustrate to
ourselves how important we think property might be.
Here's the game.
On the one hand I will convict you of a crime, a felony, an important crime,
for which you will spend one year in jail. To be honest, I'll make it a safe jail.
You'll not be, for example, sexually abused when you're in jail.
But it will be awful being in jail.
You'll be separated from everybody else, but you will be safe.
You will come out, however, not only having given up a year of your life
in jail, but you'll have all the stigma
that comes with having been a convicted fellor.
You may not be able to vote, it might be hard to get jobs and so on.
Put another way, your liberty,
which means your ability just to write your own life story in this world,
will be severely affected by what happens to you being convicted of a crime.
That's on the one hand.
Here's the rest of the deal.
When you get out I will give you $10 million, US dollars, tax free for you.
Here's my question. How many of you might,
I'll only ask you whether you might, consider taking the deal?
Tell me whether or not you might consider taking the deal, if not definitely say no.
Usually when I pose this question to students, the overwhelming number of
students raise their hands and say yes, they would consider the deal.
To which I have two observations.
Number one, I could make fun and say, well that establishes it.
You're all prostitutes.
You'd be willing to sell something secret like liberty, for mere money.
On the other hand,
assuming this is a common reaction that we might
consider it It helps underscore the importance of property.
It's not just things.
The reason I suspect so many people might take the deal, is
we realize how much different our lives would be with, say $10 million.
We'd be able to help our friends and
our families in ways that we couldn't otherwise.
And that itself has elements of
personhood in it. Even elements of liberty.
The point of the story is, if you answered that you might take the deal.
No matter how you might think about property in the abstract otherwise.
We really do realize how important it is.
And environmental law has to grapple with this almost universal understanding.
Here's the story. The story comes from Homer's Odyssey.
And you might remember in Homer's Odyssey. It is the story of Odysseus a Greek
hero and his return to his home country in Ethica from the Trojan Wars.
And terrible things happen to him and his men on route back from the wars.
To his island of Ithaca.
When he gets there however, and he wants to be re-joined
with his wife, Penelope, he's distressed to learn that
she has been besieged by suitors during his absence.
Who have been telling her that Odysseus is dead and that she
should marry one of them and she has held off the suitors.
Well, part of the odysssey when he gets back is how he deals with the suitors.
And plotting with his son, Telemachus, there's a lot of the Odyssey
that is devoted to Odysseus getting revenge
and killing every one of those suitors.
That's not the point of my story.
Here's the point of my story. When he's done killing the suitors.
He turns to the handmaidens.
The handmaidens who had attended Penelope during the long year of Odyssey's absence.
And while there's a little bit of dialogue about the possibility
that some of those handmaidens may have spied for the suitors on Penelope.
Some of them may have slept with the suitors.
There's not a lot of bad things about the handmaidens that were told.
But none the less, after he's done murdering the suitors, Odysseus hangs
many of the hand maidens, just hangs them. More importantly, Homer,
the author of the Odyssey, doesn't spend a lot of time on this hanging.
And that is the taking off point from my story.
I'm not the only one to have this insight, but the little time
that Homer spent on the handmaidens reflects
the fact that really they didn't count.
They were incidental, almost like props. To be used merely to illustrate,
Adissius' greatness, his kingliness under the norms of the time.
He was so powerful that he would just
simply get rid of and kill something like the
handmaidens, because they may have been some indirect
way offended his sense of nobility and proper behavior.
The handmaidens didn't count.
A lot of the great struggles in the law over the centuries have been the claims
from other types of people or entities to count in the law.
And we know this is the case.
There was a time when slavery was a well-established property system and
slaves were not thought of as people, they were thought of as property.
In that sense, they didn't count.
Women too, then and now, were often given second class status
because they didn't count. And some of the great struggles in all law
were to change this aspect of property and make it bend to bigger norms of liberty.
And norms of rightness.
And so to with the environment. One of the big theories
in environmental law.
Is that it's trying to make the environment count in its own right.
And that's one of the great struggles in envirnomental law.
And the question is if we try to estimate claims for the environment, and the
environment should count, how will this affect the law of property?
That's it, let's look at two opening
cases I had us look, both involving water
rights and both from California in different centuries.
Water and rights to water are a type
of property right that people plainly can have.
And that was always true.
It was true in England under the common law of England,
and it came with the English colonists to the United States.
And in the eastern part of the United States there were certain
rights known as riparian water rights with land, which land homers, owners who
owned land appurtenant, adjacent to bodies of water had to the use of that water.
In Irwin versus Phillips, the California Supreme Court tried to decide what the
law of water rights should be as a property right system in California.
The one thing you need to appreciate is that California is
in the western United States, and the western United States is arid.
Unlike the
more effluvial, wet, eastern United States.
At issue in Irwin was gold mining.
And California, of course, was famous for gold mining.
In the 19th century gold was discovered in the Sierra mountains in
California and there was a fantastic gold rush to exploit these resources.
One thing that's not appreciated is that water played a huge role in gold mining.
And what miners at the time frequently did is divert a stream over long canals.
And then build up pressure and put it through hoses
to blast hillsides to get at the gold underneath the hillsides.
Here are some pictures of hydraulic mining.
Hydraulic mining, by the way, was terrible, environmentally,
however great it was as a mining technique.
And you can see scars of hydraulic mining in the
Sierra mountains even today in the Sierra Nevada mountains in California.
The question was however, to what extent
would the law recognize property rights to water
by these miners often miles away from
the streams from which their water was diverted?
Especially when facing a challenge when someone owned land appurtenant or adjacent
to the stream.
And didn't water to be taken away because it
would reduce the flow available to that property owner.
The riparian property owner. In Irwin versus.
Phillips, the court rejected.
The doctrine of riparian water rights which had been adopted in most of the
eastern United States and said that just
doesn't fit the modern day realities in California.
And in particular
it doesn't fit the states' interest in gold mining.
More generally the court made it very clear.
That when deciding property rights like this, a court
has to mindful of overarching social and economic conditions.
And having found that the government of California wanted to encourage mining, the
court adopted a body of water rights known as the prior appropriation doctrine.
Which meant anyone who took the water first, had a superior water right to it.
Even to somebody who owned land adjacent to the stream.
First in time, first in right is a quick shorthand way to understand
water rights and property rights to water in the western United States.
And it was in Irwin versus Phillips
That the California Supreme Court recognize that this
type of property right to water.
Fast forward over a century later in the Audubon Society case,
National Audubon Society versus Los Angeles Department of Water and Power.
The California Supreme Court again had to consider water rights.
At this point, the gold rush was over, California
was well developed into one of the most developed states,
economically, in the entire United States. And it has turned out that water,
rather than gold, turned out to be the enduring precious resource in California.
Nonetheless Los Angeles, a large, growing
city with almost voracious, famous appetite for
water, had acquired water rights to five streams that fed a lake near
the Sierra Nevada mountains, Mono Lake.
And the Department of Water and Power in Los
Angeles Clearly had water rights to appropriate all of the
water in those streams and divert that water through canals
down to Los Angeles, for use there by Los Angelinos.
By the way I was born in Los Angeles.
In this case, the court recognized that the interest
of the water user in this case, Los Angeles was legitimate.
And in fact California needs to move water around being a very arid area.
But on the other hand, the court recognized that rights to
water were overlain with something known as a public trust interest.
Which is that the State has claims to the water and
to create property rights to this water subject to its overriding
interest to consider broader public goods and environmental aspects of the water.
That's not necessarily to say that one always or even ever trumps the other.
But the court head in National Audobon Society that
before water rights are given to completely appropriate streams.
Just causing environmental calamities. Not just to those streams
but to the mono lake that it would feed.
The California Water Resources Board needed to consider the
public trust including the environmental aspects on water rights.
On
[INAUDIBLE]
by the way. Back to the California Water Board.
The California Water Board decided not to
allow the continued diversion and Los Angeles got
its water elsewhere, and those streams continued
to support their own environment, their aquatic environment.
And to feed Mono lake, it was the case
that was heralded as that which saved Mono lake.
This unusual and rich ecological treasure, at the foothills
of the Sierra Nevada mountain.
The point for our purposes though is that over
a hundred years after Erwin, the court once again noted
That property rights need to mindful by overarching societal
obligations, in this case reflected in the public trust doctrine.
Although at this time environmental interests had become central.
Next time let's look at some of the provisions of the US constitution and
how they interact. With governmental decisions to affect
property rights, to preserve environmental amenities.
I'll see you then.
[MUSIC]
