Introduction -- part
II
- Legal Concepts
- Population issues
- Demographic Transition
- Energy and Health
Legal concepts
Objective: to provide legal
definitions that form the basis for environmental
controls.
NOTE: By necessity, these definitions are introductory. I
recommend the environmental health law course for a much more
complete discussion of these concepts.
A. General
1. law: binding requirements imposed by government.
Law is a general term that
includes the wide variety of legal tools that are used by government.
Fundamental to understanding legal relationships are the next two
terms: rights and duties.
2. rights: a power, privilege, or interest, protected by law.
For example, environmental
health professionals are accorded special legal powers in carrying
out their job. Some of these powers are discussed below in section
C.
3. duties: the corresponding responsibility to respect a
right.
Just as environmental health
professionals have special legal powers, they also have special
duties that are beyond those of average citizens. Some of these
duties are discussed in section D.
4. stare decisus: a latin phrase that means "the decision stands."
This concept is critical in
legal research because it says that the most recent legal decision
rendered by a court stands as a precedent (unless it is overturned).
In practice, this means that the most recent legal decision is often
the best predictor of future legal decisions. While by no means a
hard and fast rule, it does mean that legal research is one of the
best ways to predict court action.
B. Types of law (by precedence)
5.
constitutional: fundamental laws of
a government (the highest precedent of law)
Most people are aware of federal
and state constitutions, but city charters are also
included under constitutional law.
6.
statutory: laws passed by vote of
legislature or public.
This includes state and federal
statutes, of course, but also includes local ordinances and
public referenda.
7. administrative: laws written by appointed officials (i.e., agencies)
The last century has seen a huge
growth in administrative law. One reason for this: scientific
expertise is more likely to be found found within various agencies,
and not within our legislatures. Therefore, our elected officials
pass statutory law that instruct agencies to develop the specific
standards. In other words, the statutes lay out the principles, and
the administrative law implements those principles. Administrative
law includes regulations and
rules.
8. common: laws taken from previous court decisions.
What if there are no statutes or
regulations that address a specific legal issue? It is still possible
to challenge environmental activities under common law, which refers
to the accumulation of previous court decisions that are separate
from statutes, regulations, or contracts. Common law is the lowest
precedent in this group, and includes nuisance laws and
eminent domain (discussed
in the next section).
C. Other fundamental powers
9. nuisance
laws: government may limit use of
property if it harms others or is "unreasonable."
The problem here is that it is
often difficult to predict what is "unreasonable." Consider this
simple example: if dog droppings are three feet deep and the odor is
detectable to 500 homes in the area, we could be confident that this
is a public niusance. If there is only one dog dropping that is
detectable to nobody in the area, we could be equally confident that
it is not a nuisance. However, at what point do these
accumulation of dog droppings start to be considered a public
nuisance (i.e., unreasonable)? This is a difficult question to
answer, and represents the kind of issues we find under nuisance
laws.
10.eminent domain: government may "take" property if:
it is for the public interest, and
fair compensation is made. It is possible that fair compensation may
be zero dollars, but it may also be substantial. An example of
eminent domain is the embargo of faulty
restaurant equipment, if that equipment represents a risk to food
safety to the public.
11.police power: government must have power to enforce its own
regulations
This constitutional power refers
to more than simply the development of a police force. It is a
justification for the creation of agencies, and it is
the fundamental power that environmental health professionals have in
enforcing environmental health laws.
12.subpoena:
a court order for records or
witnesses in court.
I like to mention this power
because it involves more than witnesses. Almost everyone knows that
they could receive a subpoena to testify in court, but fewer realize
that their records are subject to subpoena. Virtually everything that
an environmental health professional writes could be subject to
subpoena. Certainly it is wise to consider this possibility in
everything that you write.
D. Responsibilities
1.
malfeasance: unauthorized (wrongful)
act by an official.
For example, taking a bribe is
clearly an unauthorized act.
2. misfeasance: authorized act in an unauthorized manner.
This term is a reminder that the
responsibilities of environmental health professionals go beyond
simple malfeasance. A relatively simple example: we have the
authority to close down restaurants (thus. it is not malfeasance),
but we must do so according to the law.
3. nonfeasance: failure to perform duty (without adequate excuse).
This term is an even deeper
reminder that the responsibilities of environmental health
professionals are beyond the average citizen. For example, suppose it
is 4:30 on a Friday afternoon, and you are inspecting a restaurant.
You find human feces flowing down the middle of the food preparation
area (incredible as it sounds, this actually happened to me!). The
paperwork and the action of closing this place down would take far
more than a half hour, and yet the work day (in this example) ends at
5 p.m. However, to simply walk away from this clear public hazard
would be an act of nonfeasance. The duty can indeed extend beyond the
normal 9 to 5 routine.
4. due process: fairness and completeness of laws
Court cases typically involve
multiple reports, letters, pictures, meetings, and so on. Why so much
documentation? Due process requires that we demonstrate the fairness
and completeness of our actions.
5. equal protection: consistency of law
If we inspected all Mexican
restaurants twice as often as all other restaurants, simply because
they were Mexican, this would clearly be a violation of equal
protection. However, if we inspected a specific, particular Mexican
restaurant twice as often as all others (including all other Mexican
restaurants) because there was adequate evidence that it had unsafe
practices in food preparation, this would be based on risk and would
not
be a violation. My example is a simple one, and often the real cases
are far more challenging.
6. exclusionary rule: evidence must be legally obtained
Television and movies would
sometimes have us believe that enforcement is simply a matter of
breaking the door down, gathering the evidence, and sending all the
bad guys to jail. But "breaking the door down" would often mean that
all that evidence was illegally obtained. Again, the burden placed on
environmental health professionals (and rightfully so) is to obtain
all evidence legally.
7. demurrer: admit to facts but challenge legal propriety
If evidence was illegally
obtained, the defendant would be expected to file a demurrer.
E. Approaches:
8.
litigation: to settle a dispute in a
court of law
9. arbitration: to settle a dispute out of court in a binding settlement
with the services a disinterested person
10. negotiation: to settle a dispute out of court in a
nonbinding settlement between the interested parties
11. administrative
hearings: formal and informal means
to gather information and clarify positions
F. Other
12. NEPA: National Environmental Policy Act (1969)
No discussion of environmental
law would be complete without mentioning NEPA (in California, the
California Environmental Quality Act, or CEQA). All projects funded
by the federal government that may have impacts on the environment
are required to submit environmental impact statements
Population issues
There is a considerable history of concern over
population and health. Philosophers in general and economists in
particular have long pondered the limitations of population growth.
Probably best known is Thomas Malthus (Essay on Population, 1789),
who raised the theory that when living standards rise, population
will rise. As a result, growth in real wages would be used up by more
humans to support. He predicted that population would grow until food
shortages occurred, and then people would migrate to "the new world."
To be sure, there have been many views counter to Malthus.
Utopians (e.g., Condorcet) argued that scientific advances would
offset these problems. Marx saw Malthus' argument as a rationale for
class exploitation. He argued that depressed wages were not from
population growth, but from greedy capitalists. The point here is not
to debate capitalism and Marxism (we leave that to economics
classes), but rather to show that views of population growth have
been central to debates for several centuries.
More recently, Paul Ehrlich of Stanford University (Population
Bomb, 1968) predicted gloom and doom for the late 20th century. What
happened? To a certain extent, Ehrlich's predictions were heard.
Family planning programs developed globally, and environmental
legislation escalated. Of course local doomsdays have occurred (and
will continue), but there has been more gloom than doom.
If we look at global population growth through history, we note
several important aspects in this growth: 1) the current world
population is just over
6 billion
people (with the 5 most populous nations, in order, are:
China,
India,
the former Soviet Union, the
U.S., and
Indonesia
-- while the former Soviet Union is no longer a nation, the
population that remains is quite significant) ; 2) it took most of
history to achieve the first billion, and a little more than 200
years to achieve next 5 billion; and 3) doubling times were millions
of years for the first billion, but only 130 years for 2 billion, and
only 45 years for 4 billion. Most of this growth has been in
developing regions, which are ill equipped to handle the resource
demands. Not only has population grown, but the rate of population
growth has grown. If the rate stabilizes, this is geometric growth.
We can think of doubling pennies on each progressive square on a
checkerboard. By the time we get to the 64th square, we have riches
no man has accumulated (or people that no planet can support). The
concern is this: things may get out of our control before we realize
the problem.
The next module addresses the demographic transition, which
examines trends not only the birth rate but the death rate. The real
"problem" with the population explosion is the decline in death
rates, especially infant mortality. This has been due to advances in
medical technology, but especially from the contribution of improved
sanitation. However, even today about 1/3 of the world's annual
deaths are in children less than 5 years of age. Children die mostly
from lack of food, and lack of safe water. The crucial question is
this part of a demographic transition, or do we have enough resources
for to support this growth? If we go beyond the carrying capacity of
the planet, this growth may result in even more ominous disasters not
only for certain countries, but for the planet as a whole.
In this century, if we assume a constant rate of growth, disaster
is assured. However, steady state assumptions here are unrealistic,
as the next module considers.
Demographic Transition
The
"demographic transition" is a theory with two major elements:
1. It
states that economic and technological progress leads to a decline in
death
rates, which
is eventually followed by a decline in birth rates. During this transition
period (when the death rate is lower than the birth rate), the result
is, of course, population growth.
2. It states that
this period is necessary to complete economic growth (this is the more
controversial element of the theory).
In the above graph, stage 2 shows a rapid
drop in death rates, while the birth rate is stable in this stage.
There is rapid population growth during this "early industrial"
stage, because there are more births than deaths. Stage 3 shows that
birth rates eventually drop, and stage 4 (postindustrial) shows a
stabilizing with a very slow growth rate.
To understand the roots of this theory, we
can look at trends in the so-called "developed countries" (e.g., the
U.S.). The decline in death
rates did indeed come first. Death
rates were fairly high through 1775, but began a slow decline for 100
years, and entered a rapid decline at the beginning of the 20th
century.
Also, decline in birth rates did
indeed lag behind death rates. In these same countries, birth rates
remained high through 1825 (i.e., a 50 year lag), but began a slow
decline for the next 50 years, and began a rapid decline for the next
100 years. The large differences between the birth rate and death
rate were accompanied by rapid population growth. Both death rates
and birth rates are now stable, and population growth has
consequently stabilized.
However, is this demographic transition true
for the so-called "less developed nations" of today? Reviewing the
trends, death rates remained fairly fairly high through 1875,
followed by a rapid decline for the next 100 years. This rapid
improvement was largely due to the breakthroughs in environmental
health practice, and death rates have plummeted in last 30 years.
Birth rates remained high through 1925, with a slow decline ever
since. While the data are still coming in, it appears that the trend
is continuing.
This raises a number of important
points:
1. There
is a widespread belief that population increase is due to a rise in
birth rates (i.e., "having too many babies"). This is simply not
true. Rapid population growth is almost always due to a drop in
death
rates, not a
rise in birth rates. Ironically, environmental health has played a
role in population growth by lowering death rates.
2. The demographic transition of today's
"developed countries" were at a time when the world's population was
much smaller than today. With much larger populations today, the
capacity of our environment to sustain this growth is the subject of
much debate. Ironically, just as environmental health has contributed
to population growth, it may also contribute to a successful
completion of a demographic transition by protecting our
environmental resources.
Energy and
Health
Why study we study energy when this is a
class on environmental health? Simply because energy is needed to
improve health. For example, food protection may require the energy
of refrigeration. Treatment facilities for air pollution, water
pollution, and solid waste all require energy to operate. On the
other hand, energy is not just part of the solution, but can be part
of the problem. Energy is a unifying cause of environmental health
problems. For example, gas, coal, and nuclear power all entail
environmental problems.In this section, we provide basic definitions
and explain environmental health problems from a thermodynamics
perspective. This approach is designed to provide insight into
controls, and we will discuss various forms of energy in this regard.
Background
Energy is the capacity to do work. Work is when force
is exerted against resistance, and something moves or stops moving.
For example, when you push your car uphill, you are doing work. When
you push your car and it does not move, you use energy but do not do
work. The point here is that energy is necessary for all activities,
physical, chemical, and biological. Where does energy come from? If
it comes from movement, we call it kinetic energy (for example, a
moving car). If it comes from position (relative to other matter), we
call it potential energy (for example, car on top of the hill). The
car on the hilltop holds gravitational energy, but potential energy
is also held in chemical bonds.
Energy has important properties. First, energy moves. For example,
radiation is energy in motion. It is energy propagated from a source,
that spreads out in pulses (called waves). We measure this energy by
wavelength and frequency. The electromagnetic spectrum is the range
of wavelengths, which includes cosmic rays, gamma rays, X-rays, U.V.,
visible light, I.R., microwaves, and radio energy.
A second major property is that energy degrades. High quality
energy is easily converted to low quality energy. For example,
electricity is readily converted to heat. Low quality energy can be
converted to high quality energy, but only by being concentrated. For
example, solar energy can be focussed and stored.
Newer technologies
Renewable energy sources, by definition,
ultimately cannot be depleted. Thus, there is a great interest in
these sources for newer energy technologies. Renewables include
sunlight, which can be used in two forms. The first is passive solar
(for example, deciduous trees can provide shade in summer and protect
exposure in winter). The other form is active solar (for example,
solar hot water heaters as panels on roofs of houses and buildings).
Another example of passive solar is photovoltaics, which convert
sunlight to electricity.
Another 'newer' technology is organic matter. For example,
producing methanol or methane from organic wastes. Other technologies
include wind power. Newer wind machines are more efficient than the
windmills of the past. Water power is also being used by harnessing
the energy from waves and tides. We have improved the efficiency of
hydroelectric power. There is also hydrogen fusion, which will be
discussed in a later chapter, and geothermal energy, which taps
non-active areas.
The second major category of energy is the non-renewables.
This includes not only the traditional fossil fuels, but also
includes synfuels. For example, gasified coal is oil from oil shale
and coal liquefaction (which is a higher quality energy). Another
example is nuclear power. An exception to this is the breeder
reactor, which is discussed in a later chapter.
A third strategy for energy consumption is to increase the
efficiency of existing sources. This can be done is a variety of
ways. For example, cogeneration may use heat from power plants.
Superconductivity allows storage and transfer without appreciable
energy loss, but requires more powerful electromagnets. Finally, the
magnetohydronometer converts heat directly to electricity with high
efficiency.
Trends
Globally, if we look at total energy resources we see
that energy use has been greatly increasing in this century.
Industrial uses dominate energy consumption. Developed countries
dominate the use of energy, both by total amount and per capita
consumption. The U.S. is #1 by far in energy consumption. We still
show relatively poor efficiency, but it has improved since 1970s.
Future trends indicate the greatest increase in less developed
countries, and also in centrally planned economies.
With renewable resources, less developed countries show the
heaviest use in the form of firewood. With non-renewable resources,
nuclear energy shows an uncertain growth. Fossil fuels represent the
heaviest global use, and is heaviest in developed countries. The
demand should grow at least until the next century. Oil will
decrease, but coal will increase.
In the less developed countries, the demand is low, but less
flexible because of limited technology. There is heavy reliance on
renewables because they are cheaper. The outlook is that real demand
will grow with population. With urbanization, demand for higher
quality energy will increase, but not necessarily fossil fuels. Here
the crucial issue is a choice of appropriate technology. It should be
small scale, cheap, and easily maintained.
Wood, crop residue, and dung represent major sources. Although the
data are extremely limited, it is mostly used for non-commercial
purposes. Yet, it provides almost 1/2 of energy in developed
countries. In rural areas, it provides more than 90% for homes.
Overcutting of forests can lead to erosion and desertification. Dung
and plant residue provide badly needed nutrients to soil. So,
conservation is also important in less developed countries, but for
more ominous reasons.
Test your knowledge with a:
quiz
For more information, try: Introduction
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