A Free-Market Approach to Protecting Our Water Supplies

Lynchburg train derailment. Image credit: CNN.

Lynchburg train derailment. Image credit: CNN.

by James A. Bacon

Writing in the Times-Dispatch today, my friend Noah Sachs highlights a systemic risk in our society: the threat of chemical leaks and spills to our water supply. Last year the release of toxic chemicals into the Elk River disrupted the drinking supply of 300,000 inhabitants of Charleston, W.Va. Closer to home, a Duke Power plant in North Carolina dumped coal ash into the Dan River. And a train derailment in Lynchburg sent three railroad cars into the James River.

“The accidents in 2014 are a stark reminder of the vulnerability of our drinking water, and we can’t fix the problem by imposing new requirements on water systems alone,” writes Sachs, a professor of environmental law at the University of Richmond. “We have to look upstream to the real source of the problem. Industries that store toxic chemicals near our waterways are putting Virginians at risk.”

The threat is real, and I credit Sachs for bringing attention to it. The question is how best to address the risk. Do we, as he suggests, need to impose a new set of regulations? Or are there potential private-sector remedies that could ameliorate the risk at less cost?

Sachs proposes three guiding principles for Virginia regulation:

  • Businesses that store large volumes of toxic chemicals “should be subject to some public oversight.”
  • There should be “minimum standards” for construction, inspection and maintenance of chemical storage tanks. Setbacks and secondary containment of requirements should be imposed for tanks near water sources.
  • Tank owners should prepare public communications and response plans in the event of an incident.

In this day and time, when the Environmental Protection Agency has taken upon itself to rewrite the Clean Air Act in order to regulate carbon dioxide emissions and shut down much of the coal industry, these standards do not sound especially unreasonable or onerous. But that’s hardly the criteria we should use when enacting new regulations. We should also seek to minimize the impact on industry consistent with our obligation to protect the public.

The red flag is Sachs’ suggestion that “minimum standards” should apply to everyone. Invariably, there will be instances in which the minimum standards are irrelevant, inappropriate or represent regulatory overkill. The problem is inherent with one-size-fits-all government regulations — they cannot take all unique circumstances into account.

What alternative is there to regulation? The tort system. Corporations should be held accountable for the harm they cause others. If a company spills chemicals into the water, it should be liable for the cost of the clean-up and compensation to those who suffer harm. Government should impose one rule only: As a condition of storing and transporting toxic chemicals, companies should be required to buy insurance. Insurance companies then would serve the risk-mitigation role. The insurers’ own inspectors would assess the level of risk and premiums would be adjusted accordingly. Companies could buy down those premiums by implementing measures such as those Sachs describes or perhaps by devising other solutions unique to their operations.

Regulators apply standard remedies and discourage innovative approaches, especially in situations when there may be idiosyncratic, site-specific solutions. Instead of telling industry how to do its job, perhaps Virginia should simply tell industry that the commonwealth will hold polluters liable for clean-up and damages — and let industry figure out how best to tackle the challenge.

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45 responses to “A Free-Market Approach to Protecting Our Water Supplies

  1. Well I hope you’re REALLY prepared to discuss this including the “red flag” because I think you have a really wrong idea of how this works.

    2 questions:

    1. – why does industry locate next to rivers rather than inland ?

    2. – what gives them the right to put pollutants in the air and water?

    I’m seriously interested in your answer to number 2 with respect to torts and the right of anyone to dump pollutants onto property they do not own in the first place?

    so please answer up .. and let’s begin this discussion about regulation and the EPA and the free market.

    • No one has a “right” to pollute. To the contrary, as I made abundantly clear in the blog post, companies should be held liable for clean-up costs and damages.

      What about that do you not understand?

      • what gives them the right to put pollutants on property they don’t own in the first place?

        where do they get that right?

        why not have a zero discharge rule so that after-the-fact torts are not needed?

        what gives them the right to put a discharge pipe that will put pollutants in air and water they do not own?

  2. I’d say the common law permitted anyone to use his/her property as desired, but subject to the common law of nuisance. A nuisance can be a private nuisance where the actions of one property owner interferes with the enjoyment of the second property owner’s land. Or a nuisance can be a public one, where the actions of a landowner interferes with the interests of the general public.

    In theory, this legal theory should have prevented most pollution. But as the law developed, it was weakened as a result of the desire for industrial growth. Also, a defendant’s or community’s acquiescence in ongoing pollution was often found to be a valid defense. Some cases hold that the government granting of a permit or license to operate something that, by nature, would result in pollution effectively authorized and protected the pollution.

    I think a plaintiff who had pollution dumped directly on his land would have a stronger case than if the pollution was merely near his land. Also, to prosecute a claim of public nuisance, a party would likely need to show damages above and beyond what the general public experienced.

    Hope this helps.

    • no cigar TMT.

      what gives ANYONE -the right to release pollutants from their property onto others ?

      we talk here all the time about property rights and the free market.

      what gives ANYONE the right – like the guy next door to you the right to deposit stuff on your property – that then runs off onto other properties all the way to the Potomac?

      you would not file a tort . You would immediately file a lawsuit, no, you’d call the police to stop the dumping… and the police would arrest the other guy on the spot if he did not stop.

      but let’s forget the common law past and deal with the current world.

      what allows anyone to put a discharge pipe on their property that releases pollutants to property they do not own?

      there is a real answer here.. not a theory.

      what’s the answer?

      • Larry, you are back to pulling laws and regulations out of the air based on your world view. The sources of American law are common law and federal and state constitutions and statutes. Absent a statute addressing pollution, the common law controls.

        Let’s say a neighbor burns trash in his backyard. Absent a statute, you can sue him only if he is causing a nuisance. There may be a state law or local ordinance that prohibits burning within the city limits. Or there might not be such a law. If so, the neighbor can burn his trash. My late father-in-law ran a farm in Ohio. He burned his trash. There was no law prohibiting that practice.

        Ditto for liquid discharges. Federal law regulates discharges into navigable waters. But the feds have no authority over non-navigable waters. Then it’s up to the state. If there is an applicable law prohibiting the discharge of X, you can call the police or other appropriate agency and try to get it stopped. If there is no applicable law, you cannot, unless you can prove that an actionable nuisance exists.

        The Fairfax County suit against the EPA resulted in a judge ruling that the EPA’s practice was not in accordance with its powers under the statute. Therefore it lost.

        • re: ” Larry, you are back to pulling laws and regulations out of the air based on your world view. The sources of American law are common law and federal and state constitutions and statutes. Absent a statute addressing pollution, the common law controls.”

          nope. I’m asking you right now.. what gives anyone the right to put a discharge pipe on their property. got an answer?

          “Let’s say a neighbor burns trash in his backyard. Absent a statute, you can sue him only if he is causing a nuisance. There may be a state law or local ordinance that prohibits burning within the city limits. Or there might not be such a law. If so, the neighbor can burn his trash. My late father-in-law ran a farm in Ohio. He burned his trash. There was no law prohibiting that practice.”

          a pipe TMT – I’m asking about a pipe …

          “Ditto for liquid discharges. Federal law regulates discharges into navigable waters.”

          really? on what basis does that law exist? that’s what I am asking you and others here. where does that law come from? how does the govt tell you what you can discharge or not from your property?

          “But the feds have no authority over non-navigable waters.”

          really? you mean if a company dumps kepone into a small creek that goes into another state – that it’s okay if the first state says it is?

          “Then it’s up to the state. If there is an applicable law prohibiting the discharge of X, you can call the police or other appropriate agency and try to get it stopped. If there is no applicable law, you cannot, unless you can prove that an actionable nuisance exists.”

          right. You’re giving the procedure. I’m asking you what the basis of the law is in terms of who can put a discharge pipe on their property that discharges material to property they do not own?

          what is the basis of the law?

          “The Fairfax County suit against the EPA resulted in a judge ruling that the EPA’s practice was not in accordance with its powers under the statute. Therefore it lost.”

          do you think that because of that the other laws about pollution are all invalid also?

          what is the basis of the EPA and DEQ involving themselves with a free-market company putting a discharge pipe on their property?

          that’s the fundamental question before you ever get to the rest.

          what gives the free-market the right to put a discharge pipe on their property?

          is it a natural right that is not the role of govt to involve itself in?

          if not, please explain what justifies the govt involvement?

          this is the problem with our sound-bite society these days. people are largely ignorant of the fundamental tenets of the laws.

          • Larry, what is so hard about this? Absent an applicable law, a person or other landowner can put a pipe into a street or a stream or a vacant lot. I can pour out my bucket of suds after I wash my car. People re-grade their lots and change the flow of storm water. The City of Alexandria has a combined storm-waste water system. It fails about every other week and discharges waste into the Potomac. From what I understand, the law grandfathers the system. But a new community could not construct such a system. Whether these actions are legal or not depends on the law.

            We have laws because: 1) the constitution permits them under certain circumstances; and 2) legislative bodies enact them, which are then signed by the executive. We get to vote for legislators and the executive. Agencies are generally allowed to adopt rules that implement statutes. They are also allowed to enforce the laws and regulations. A person with standing can challenge the laws and regulations on many legal grounds. If successful, the agency loses. If not successful, the agency can enforce its regs and the statutes.

            This has nothing to do with political philosophy. It’s basic middle school civics.

            Now reasonable people can disagree as to whether a law should be adopted or a regulation modified. That’s where philosophy comes in. So does economics.

            And “yes,” I suspect a business could empty a chemical in an non-navigable body of water with state permission. But the state might not allow the dumping either. The EPA does not have the authority to regulate the puddles on my driveway. It’s not a body of navigable water.

          • I’m asking why there is a law in the first place instead of no law and a free market that allows companies to do what they need to do to conduct their business?

            why is a law passed that constricts them?

            why are companies restricted in putting discharge pipes on their property?

            this is fundamental to Jim’s point about the free market.

            why don’t we have a free market where companies decide this issue?

          • I do not think this is or should be a ‘left’ or ‘right’ issue.

            no one should be able to dump refuse or waste or pollution on property they do not own – and the solution to that is not torts because companies go broke and disappear and the damaged parties get no remedy.

            so this is where the laws came from.

            it was not a bunch of liberals on a power trip

            it was, instead, real ordinary people , harmed at the hands of others , and laws created to protect the rights of those who were being harmed by denying others the right to dump – without a permit – yes – a GOVT permit.

            I understand that at this point – the partisan divide starts to get into the dialogue but why?

            it’s a simple thing. none of us are allowed to dump refuse or waste onto property we do not own.

            and that includes companies – which if you think about it is nothing more than people forming a group to own property.

            but at the end of the day – you and I – no matter whether we are Liberal or Republican do NOT want some company dumping some pollutant that will last a 100 years in a river and seep into the groundwater to last centuries.

            so how do we address this?

            it is with government.

            there are no real other alternatives.

            and you can call whatever you want – what the govt is but we call it the EPA and DEQ in Virginia.

            we don’t want either one of those govt agencies to go away even though we talk like it at times.

            it was not that long ago – that anyone in the Richmond area should remember – that Kepone is in the river – and actually it remains there.

            and river after river in Va has dioxin or PCBs in it – to this day – from companies that have long since disappeared but the pollutants remain and torts are useless as teats on a teddy bear.

            but our politics has gotten so screwed up these days that we find ourselves talking about these issues as if there is a “left” or “right” version…

            and what I assert is that if you go back to the fundamentals – there is no left or right -it’s about what gives anyone the right to dump toxic chemicals on property they do not own – and how that concept gets expressed in a free market economy.

        • You are overreaching somewhat on the Fairfax County / EPA decision. The judge ruled that the EPA’s method of approximating nitrogen and other runoff pollutants by estimating the amount of runoff water was flawed. The judge’s remarks stipulated that no party to the suit claimed that water was a pollutant (contrary to Ken Cuccinelli’s claim). However, the judge felt the EPA needed a more direct measure of pollution that the total amount of runoff.

  3. Part of the problem is that we have a double standard, whereas major corporations are expected to adhere to “draconian” EPA safety and environmental standards, that nobody else (towns, small companies, farms, etc.) feel should apply to them. In some cases, there are actual regulatory exemptions to favor smaller businesses or municipalities, or in some cases the smaller entities are just willing to accept a risk of failure that a large corporation cannot tolerate. To some extent there is an absence of large corporations due to the enormous penalties we would expect them to pay if they made a mistake. For the system to work we probably need government over-sight of some kind to set rules and help the smaller entities comply. Less adversarial, more partnership. I know we are far from that “less adversarial” vision of mine.

    • who gives a company the right to put a discharge pipe on their property to release materials and waste – off their property and onto properties they don’t own?

      you want to blame the EPA. Fine.. take them out of the equation and tell me again – who has that right and why?

      this is fundamental to the “blame EPA” argument.

      If you are unwilling or unable to articulate how we decide who can pollute then in my view – you’re evading the fundamental central question.

      once you deal with the fundamental issue -we can get back to EPA and their role.

      until then – we are evading the issue in my view.

      • Only government can create the legal framework for pertaining to pollution, whether its regulation or tort law. Right now, the system is overwhelmingly tilted to regulation, which has many, manifest problems. It’s at least worth exploring how to make the tort system work in its place.

        There is a legitimate issue with companies that go out of business and have no assets with which to recompense those who were wronged. That may be justification for requiring companies to post bond or surety (I’m not sure exactly what the proper terminology is) when dealing with toxic chemicals. Of course, that would create a hurdle that would prevent under-capitalized enterprises from getting into the business. But maybe that’s a good thing.

        Only an ideologue would shut down the discussion.

        • I am reading an excellent book by John Grisham entitled “Gray Mountain”. It is about mountaintop removal coal mining in Virginia, West Virginia, Kentucky. While it is a work of fiction I get the distinct impression that there is more than a bit of truth and reality to the narrative. Grisham implies that the coal companies control the elected judges and work to bypass the legal process or minimize the judgements when they are rendered. He also describes the practice of going into voluntary bankruptcy only to pop up again under a new company name to do the same thing over and over again.

          Anybody who has any experience with the homebuilding industry can recount at least one horror story where an incompetent or dishonest builder / remodeler went into bankruptcy to avoid fulfilling the contract they had signed.

          I am not sure the legal system would be any better than the regulatory system.

          As for putting up bond to be in business – that seems likely to stifle competition. Raising the cost of entry is going to reduce competition and increase prices.

          Not sure there is an easy answer here.

          As an aside, the menhaden regulation forced down The Imperial Clown Show in Richmond’s throat by the rest of the East Coast states seems to be working. The menhaden aren’t even close to the population needed but they are increasing in biomass. Meanwhile, the high tech fish slaughtering companies managed t stay profitable even while cutting back a bit on the menhaden roundup.

        • I’m in favor of a full-throated discussion on all of this but especially this part because you apparently still seem to believe that companies are entitled to discharge pollution on to property they do not own and I do not understand where you get this from.

          before we can talk about too much regulation – we need to agree on why we have regulation to start with.

          why?

          once we agree on the reason why – then we can get to what is too much regulation but until we agree on why we have regulation to start with – we go downstream to a scenario where you will question the need for regulation and if we have not agreed on the fundamental premise – we go round in circles.

          there is a fundamental precept here – that we need to agree on.

      • I think, Larry, you are asking something more fundamental than “who can pollute.” In effect you are asking how far do real property rights go.

        All right, to have real property means people “own” a designated piece of the surface of the earth: and ownership comes with rights of (1) access and egress (by the owner and his licensees and permittees and so forth); and (2) use (of the surface, subsurface and airspace above the surface) in any way not prohibited. Access and use together imply the right to bring onto, and remove from, the property anything made or harvested there, as well as the people who do the work. That includes trash, air and water runoff and discharges, etc. etc., UNLESS that runoff has crossed the line (as determined by a court, based on precedent) of becoming a common law nuisance or violating a statute. This is the long version of what TMT said: “The sources of American law are common law and federal and state constitutions and statutes. Absent a statute addressing pollution, the common law controls.” The common law is what it is because that’s the way they did it in good Olde England, as interpreted and reinterpreted here since. Every state has adopted the common law. If you want to press on and examine where the state gets the authority to do so, go read Thos. Jefferson or Voltaire or John Locke on the subject of natural law and rights derived from “the people.” There is lots of common law dealing with access to and use of real property. And lots of statutes are overlaid over that. Some of those statutes are state statutes (or local ordinances authorized by the state) and on top of those there are federal statutes pursuant to rights delegated to the feds. There’s plenty of room to argue about how all those overlapping requirements should be reconciled and all those lines should be drawn and who should decide when there’s a violation and what means of enforcement should exist, but that’s the basic structure.

        So, to answer your question, who said I could put a discharge pipe into the river and dump e.g. kepone there? The answer is, if I pass it beyond the edge of my property, it’s up to my neighbor to complain, or the State on his behalf, or on behalf of the public, that I am creating a nuisance, or that I am violating a provision of applicable law. And the State may also pre-emptively prescribe what I can do on my own property (but that’s another subject). If you don’t like this answer, blame it on the Europeans from whose customs and means of government we received and distilled the common law.

        • you started off right but then you went down the same rat hole that TMT did.

          You are NOT entitled to take pollution or trash off of your property and put in on someone else’s property – as a “right”.

          you talk in your narrative about permits and licenses and I ask you what those things really are – who issues them and on what basis?

          we’re not talking about “nuisances” here. we’re talking about things that harm people – cause injury, permanent damage or death .. as well as destruction of property for a given use.

          you cannot “undo” some damage and as Don points out – companies go broke.

          Ask yourself what happened to Allied Chemical or John’s Mansfield or a hundred other defunct companies I can name to you – and what happened to the people who were harmed.

          do you KNOW where Superfund sites come from?

          do you know how many superfund sites there are ?

          there are a BUNCH and each one represents someone who damaged others and escaped the costs.

      • You say, Larry, “If you are unwilling or unable to articulate how we decide who can pollute then in my view – you’re evading the fundamental central question.” That’s what I’ve tried to address: who can pollute. In essence, anyone can pollute his own land unless it creates a public nuisance under common law, or it is forbidden by a statute (or regulation adopted pursuant to statute). And anyone can pollute his neighbor’s land unless it creates a private or public nuisance under common law, or the pollution is forbidden by a statute, etc.

        But DonR raises a more subtle question. Assuming you, as a property owner, have the right to pollute until stopped (by complaint or by statute or regulation), what is the best way to stop you? Should it be by statute or by statute-enabled regulation (i.e., prohibition, with regulatory or statutory penalties for violation), or by lawsuit for damages (i.e., tort law), or by injunction (i.e. court edict)? Different mechanisms.

        • re: ” You say, Larry, “If you are unwilling or unable to articulate how we decide who can pollute then in my view – you’re evading the fundamental central question.” That’s what I’ve tried to address: who can pollute. In essence, anyone can pollute his own land unless it creates a public nuisance under common law, or it is forbidden by a statute (or regulation adopted pursuant to statute). And anyone can pollute his neighbor’s land unless it creates a private or public nuisance under common law, or the pollution is forbidden by a statute, etc.”

          Nope – you cannot. You cannot operate a dump for nuclear material to name just one. and You need to distinguish between “nuisance” and what is a threat to health and safety of others – and WHO makes that determination, it’s not you.

          “But DonR raises a more subtle question. Assuming you, as a property owner, have the right to pollute until stopped (by complaint or by statute or regulation), what is the best way to stop you?”

          if there is a law about the material and how it is handled – it’s not subtle.
          you’re not even allowed to have it on your land without a permit.

          ” Should it be by statute or by statute-enabled regulation (i.e., prohibition, with regulatory or statutory penalties for violation), or by lawsuit for damages (i.e., tort law), or by injunction (i.e. court edict)? Different mechanisms.”

          no. you are prevented from having the material on your land – from the get go. what material? what the govt decides – not you.

          you do not have the right to decide what you can put on your property – the govt does.

          the question is – why? why does the govt have that authority and not you?

  4. I’m sounding disagreeable here and it’s my fault and I need to fix it.

    and I do apologize.

    I feel strongly about the issue but I should be able to discuss it without being disagreeable so I will try harder and you guys can let me know if I need to try even harder!

    but I want you guys to address the issue of WHY the govt is involved and what it means to get a permit or license, etc.

    there is no mystery here. The simple truth is that no one is “entitled” to pollute nor are they entitled to a permit to pollute and the arbiter is the govt.

    if we can agree on the above – then we can get to regulation part and the EPA part.

    • No, no, no one is “entitled to pollute,” but you miss the point: it is not “pollution” under common law unless it is a “nuisance” to someone, and they must “complain” to make it a nuisance. Meanwhile it’s just disposal of something you want to get rid of. You ARE entitled to get rid of things off your property, unless it creates a nuisance.

      • re; ‘ No, no, no one is “entitled to pollute,” but you miss the point: it is not “pollution” under common law unless it is a “nuisance” to someone, and they must “complain” to make it a nuisance. Meanwhile it’s just disposal of something you want to get rid of.”

        who determines if what you are doing is a “nuisance” or worse?

        you cannot “dispose” of any material of your choosing on your property.

        the question is why you cannot? why?

        bonus question – do you know what a superfund site is and who makes the determination of what a superfund site is or is not? and do you consider a superfund site to be a “nuisance”? who decides if a given site is a nuisance or a superfund site?

  5. Jeezus Bacon,
    I was writing about the West Virginia spill a year before your friend got around to it. Big news to you, huh?

    Don the Ripper,

    I spent two years documenting the Grey Mountain stuff in my own book published two years ago:

    “Thunder on the Mountain: Death at Massey and the Dirty Secrets Behind Big Coal,” St.Martins Press 2012 and West Virginia University Press (paperback) Nov. 2014.

    I mean, seriously, if I spend countless hours blogging away on this material year after year (no pay from tightwad Master Bacon), why doesn’t anybody pay fucking attention? It’s only ben advertised on the right hand rail of BR for more than two years?

    Maybe I should quit BR.The hell with most of you!

    • I would ask that you stay Peter. you are an asset plain and simple even if you don’t feel like it sometimes.

      larryg

      • Don’t worry, Peter’s just blowing off steam. He knows full well that Noah was making a point about chemical leaks/spills that transcends the issues in West Virginia. Peter has never recommended a new regulatory regime for chemical storage and transportation in Virginia. If he had, I would have made the the case for tort law/insurance inspectors just like I did with Noah.

        • Jim – are you saying that someone can get a bond to store nuclear waste on their property and that bond protects the public from an accident and that’s a better approach than govt involvement?

          • Yup, that’s what I’m saying. Given the hazards of nuclear waste, the bond would be really high. Anyone who could afford a $5 billion bond (give or take a few billion) could store nuclear waste.

          • who decides the bond?

            and how do they know what the full cost would be in case of an accident?

            and what happens to the property if the owner walks away? who becomes responsible for it?

  6. All this whining about environmental regulation! Insurance sounds good but it will result in just as much regulation, only done by the insurance commissioner.

    Remember what a mess the environment was before EPA and state environmental regulation? Polluted air, water and ground? The Potomac, Rappahanock, and James were gross and poisoned (remember Kepone) – you had factories and municipalities who just dumped their pollutants and poisons into the water. Cheaper for the owners of the factories and the cities, but not so good for everyone else. “Common law” tort solutions were totally inadequate then and would be even more ineffective now.

    I am thankful for the EPA – the hassles of complying with environmental laws are worth the benefit of cleaner air, water, and ground.

    • Richard – you have that wrong guy.

      The EPA is evil and stupid.

      all that stuff about the rivers being polluted is liberal lies…

      we can have a clean environment without the EPA.

      we just have to keep the govt from messing up the free market!

      we once had clean rivers and clean air but then the EPA came along and screwed the pooch….

      ask Jim…

  7. Mr. Bacon:

    I could actually be open to looking at tort actions as a means of regulation.

    HOWEVER, and it’s a big however…..is there any way to block the companies from lobbying the General Assembly? That’s the rub with the idea of “tort” v. “regulate.” When we look at tort as the solution, inevitably…a “big player” gets in trouble and they immediately run to the legislature to get the laws changed to “limit liability.”

    If you could give me a realistic answer to the problem of lobbying and changing the law, I might be willing to agree with you about tort liability instead of regulation.

  8. To give Jim’s suggestion a fair appraisal.

    Some toxics might be short duration and dissipate in the environment while other things don’t and the damage is long-lasting – decades or longer.

    some things bio-accumulate in the food web so that it builds up in some critters and when they are eaten by others it then accumulates in them – and in turn become a danger for humans to eat.

    some things are just plain deadly if humans come in contact with them

    and some things – we simply don’t know with precision the impacts.

    but what we know from our history – is that, more often than not, we grossly underestimate the potential and that’s why we have mercury, pcbs, dioxin, kepone and other persistent contaminants still in our rivers , 30, 40 and 50 years after they were put there.

    The companies that make these products – if they really had to put up a bond to a “hold harmless” threshold – many products could not be manufactured and sold or they would be so expensive that they’d not be profitable to make.

    Many companies PREFER a permit with specific materials allowed to be discharged within specified limits – because even if those things do cause harm – they are “legal” because the govt accepted the consequences when they granted the permit.

    this is actually why we have mercury deposition that bioaccumulates from coal plants. Instead of Dominion having to provide a bond for the cleanup – it’s legally allowed to pollute.

    and Cville resident has an excellent point and is the reason why the EPA and DEQ are not controllable by Congress or the General assembly.

    the law is passed and these agencies regulate within the confines of the law – for all pollutants and are not directly influenced by politicians except those who demonize them and say they need to be abolished – which is such a ludicrous idea that it demonstrates just how out of touch some folks – including politicians are.

  9. re: torts for industry

    there are so many different kinds of chemicals with so many different kinds of impacts – does anyone really think the GA would do them one at a time and even if they thought that – who would they consult with to determine the proper size of the bond commensurate with the scope and risk?

    And when your’re doing this – while some may say this alternate methodology is different from regulation – there still is very significant govt control and involvement and I don’t know how one could characterize this approach as any more or less “free market” than a regulatory approach.

    A really serious alternative proposal would compare the two approaches and develop a pro-con analysis.

    Jim will say “of course” but my point is that from the right these days – there is basically blame of what they don’t like, advocacy for repeal – and really – no real “replace” .. it all starts with the idea of what they don’t like and they never really provide a real competitive alternative that is better by comparison.

    The GOP and the Conservatives that I always like – had thought through their alternate proposals.. the current crop invariably do not. It’s more like – “kill it and we’ll figure out what to do next as we go along”.

  10. Mr. Bacon:

    You bring up a good point in that they already lobby to change regs. However, I’d point out the difference is that the “tort” approach usually means that tort suits should not be interefered with because their whole purpose in your proposed framework is deterrence. However, the problem with tort theory is that if a billion dollar lawsuit made it past summary judgment and was headed to a jury….you can be sure that the companies would be screaming for immunity from the General Assembly. The whole point of tort suits is deterrence. If the legislature can grant immunity, deterrence would never occur.

    I also think larryg brings up a good point. I think regulations can be very helpful to business by being a “license.” So long as the gov’t regulates, companies can say that “this amount of X is legal in our product…the regulators say so.” However, in a tort world, you wouldn’t have that. Would insurers risk providing insurance without regulations that permit a certain amount of X in the product? Would they leave those decisions up to judges/juries?

    • re: torts

      and Jim will tell you that the increased costs of medical care comes from torts and we need to change the way that torts work.

      QED quod erat demonstrandum

  11. This torts idea is completely laughable. You want to turn over environmental regulation to the dreaded and much-maligned plaintiffs’ lawyers. I thought conservatives hated plaintiffs’ lawyers – you’d claim they bring unwarranted suits and get paid too much, and then you’d put in laws restricting how they could sue and how much they would get paid. This seems like just another way to avoid discussing the real issues. If you want change, change the environmental laws, which as you well know mandate regulation of CO2 emisions – but I think you’d be lost without the EPA (no one to blame), and I don’t think you really want change.

    • I think what drives the anti-regulation fervor on the right is their strong belief that the free-market is harmed by regulation and that regulation has gotten out of hand and needs to be reined in.

      having said that – most of them have no more idea of what to do instead much more than what they read in right wing think tanks and right-leaning media – TV and internet.

      and then, as Richard points out, they find themselves going in circles on other things they don’t like about govt either.

      and when you ask them to name other countries that do it “better”, they think you’ve grown a second head.. the concept itself or doing a little survey of countries to see who has better regulation is a foreign concept (pun intended) to them. They only think in a USA context and only in a right-leaning thought process.

      but I’d still ask my original question.

      what entitles companies to bonding at all?

      and you’d still require an EPA-like agency to determine the scope and scale of the impacts and what the appropriate bond would be. And it would NOT be much simpler than the current process that the EPA goes through in deciding what level of regulation.

      and I’m quite sure Jim would advocate that lawsuits, including class action would be prohibited.. you get whatever damage some arbiter decided and that’s it. No lawyers. Polluters would get their licenses to pollute and people would not have legal redress.

  12. Cutting to the bottom line, Noah Sachs seems to suggest VA is ignoring the lessons learned and best practice recommendations coming out of the accident investigations being conducted on a national level. I am NOT sure Sachs is correct, but if that’s true, it is unacceptable.

    I do not feel Sach’s logic is exactly top dead center. We do need to do a better job of preventing accidents. The recent DC Metro fire is a recent accident example in the news. But when an accident happens, we know it, and prompt actions must taken to minimize the damage to water supplies etc. or whatwever else is accutely impacted.

    Drinking water is an extremely sensitive topic because human perception of risk is basically dysfunctional. We are outraged by zero risk (we refuse to be forced to take even an infinitesimally small perceived risk) and we are complacent with enornous risk (as long as we are not aware of the risk or support taking the risk).

    This is why enviromental discussions are so heated, it’s all about risk communication. Usually one side or the other is trying to manipulate the listener either to accept a risk with a carrot, or alternatively trying to tell us we should be outraged about a non-existent perceived risk. It can be hard to find the correct path.

    • re: ” it’s all about risk communication.”

      it’s about who you want to believe also when more than a few do not
      believe the EPA.

      My perspective is that we’re losing the battle of clean water because more and more people don’t trust the water supply – AND they don’t trust the govt to tell them when it’s been compromised so they just buy bottled or filtered.

      we also – underestimate the damage we do – historically and let me give an example :

      We’ve developed new classes of drugs – more powerful antibiotics, hormones, powerful cancer and other type drugs – and they all go into the wastewater now and then into the rivers to not only affect critters but the next intake water plant.

      We are doing precious little about it and it’s almost guaranteed that if the EPA took it up that they’d be attacked for being “alarmist”.

      we have reached gridlock on this in some respects because on one hand folks are going to blame govt for letting powerful drugs and hormones get into our water supply then they’ll turn right around and go after the EPA if they try to address the issue.

    • Here’s an article about the problem of prescription drugs in our water supplies –

      This New Study Found More Drugs in Our Drinking Water Than Anybody Knew – And no one’s doing anything about it

      ” The new study, which will be released in January(2013) in the journal Environmental Pollution, was obtained by The New Republic. Conducted by the Environmental Protection Agency, it is the largest study of water coming out of wastewater treatment plants.”

      http://www.newrepublic.com/article/115883/drugs-drinking-water-new-epa-study-finds-more-we-knew

      and of course – this also illustrates the dilemma with respect to regulating or alternative methods like “bonding” – i.e. what you don’t know and did not find out until later.

      no one questions the benefit of prescription drugs but if they also cause significant harm – then how do we balance the competing values? how do we trade off and mitigate?

      who is responsible for polluting the rivers? the people who made the drugs or the people peeing into their toilets or do we change the way we do wastewater treatment and who is going to pay for that? Not the drug companies.. or at least not without them incorporating the costs into the price of their products OR we do like we’ve done with coal plants and we consider it “necessary” pollution?

      Jim says bonds rather than regulation.. maybe.. but it sure seems like no matter
      what approach you take -you still have to analyze costs vs benefits .

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