Environmental protection, unlike increasing profits, is not a natural goal of American business. Certainly the history of this nation through the 1960s, when virtually all environmental protection was voluntary, confirms that those making the profits had little concern for the environmental impact of profit-making activities.
Editors' Summary: The trend in cases deciding CERCLA landowner liability has been to increase the situations in which liability arises. Lending institutions' liability for cleanup costs and remedial action at hazardous waste sites for which they have made loans to property owners is the most recent area of dispute. The recent decision in United States v. Maryland Bank & Trust Co. has caused the banking industry to sit up and take notice of CERCLA landowner liability. Contrary to another recent district court decision, United States v.
Mr. Chairman, distinguished guests, and fellow students of the law: what a delightful place to be. Thank you for inviting me.
I feel very much at home addressing this group. Our values are common, our interests are common, and we speak a common language. In looking at risk, whether as judge or lawyer, court or court officer, the challenges we face are common as well.
Quantative estimates of human risk are now used for regulation and management of many technological, environmental, and occupational health risks. Ten or more years ago, this was not the case; except for activities for which reliable data were directly available (such as transportation risk) and for a few other areas (such as ionizing radiation), risk management decisions were made without quantitative risk estimates, although analytical methods that stopped well short of estimating risk were used.
DR. ELIZABETH L. ANDERSON: Dr. Whipple has emphasized that risk assessment is on the rise because of policy needs, and I think this is certainly true. Two other points come to mind, and I think they are worth mentioning. First, as the number of our laws increased, scientists searched for their role in the public policy arena. Over time, scientists have become more cautious about making decisions to define a safe level of exposure in the face of scientific uncertainty. Policy makers and lawyers often press science for the answer to what is safe.
Life is a risky business. In this complex technological society, we simply cannot go about our daily activities without exposing ourselves and others to risks to our health and to our shared environment. Risks lurk in our diets, in our jobs, and in our recreational activities. Fortunately, we can reduce risks by amending our conduct and by implementing risk-reduction technologies. These efforts, however, claim resources, in both time and money. Individually and collectively, we face hard choices about how much risk is acceptable and how much risk should be avoided.
DR. JOEL HIRSCHHORN: First, I would like to support the view that there is, in fact, a lack of public trust in the Environmental Protection Agency (EPA). This lack of trust extends to both risk assessment and risk management.
My topic is a large one, and I cannot hope to cover it in detail. Instead, I shall offer a sketch of an idealized environmental risk management system and ask how the courts have contributed or might contribute to its realization. I shall focus on three specific contexts in which courts participate in environmental risk management: review of administrative action, particularly of federal regulatory action (or inaction); actions in the first instance for injunctive relief against claimed environmental hazards; and actions for compensatory damages.
HENRY NICKEL: The objective of Professor Stewart's idealized risk management system is simply to do more good than harm. That is not a very radical notion; unfortunately, our statutes do not currently operate to ensure this result in every case.
To determine whether a particular course of action will produce more good than harm, agencies must look at the economic expenditures involved and at the entire spectrum of risks that will be created by a decision to proceed or not to proceed in a particular manner.
GEORGE FREEMAN: This morning, it was noted that longevity has improved substantially over the past decade. As a whole, prople in this country are much better off than they were a century ago.
This fact tells us that the net effect of our increasingly complex industrial society has been more beneficial than detrimental. If we were to examine the roles of the private and public sector in bringing about this effect, I think we would see that the private sector has contributed more to the net result than has the government.