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
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.
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).
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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.
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.
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