Susan M. Burke
Culpability and Liability, The Legan and Political Problems in Assigning Fault/Cost
Some of the material available relates the difficulty of assembling the complete and reliable chemical knowledge of soil deterioration and the long-range deleterious effect of air pollution upon health and aquatic systems and agriculture. For instance, the long-term cause/effect relationship between lake acidification (and subsequent fishkills) and pollution offenders has been difficult to establish. Another problem arises when assigning a cost/benefit ration.
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Consumers argue that they are paying double when asked to pay abatement costs and to suffer the damage of air pollution without legal recourse for those damages through tort litigation. Justifiably the consumer does not want to be taxed with the financial burden that abatement methods require. Most feel that the cost of cleaning the air should be borne by those who are using the air for disposal. The counter argument that air pollution is a universal problem and therefore should be universal borne simply does not stand.
Changes in international law covering injuries were made after long-range transportation of pollutants in Canada occurred. Jurisdiction is given over a non-resident defendant in Canadian courts and convention provides that tort action law of “delegable liability” applies.
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The reasonable man standard applies as in all negligence cases. The “due diligence” standards also applies in the protection of water rights. Riparian rights refer to those rights to have a water supply free from pollutants and law protecting the riparian rights was adopted in the U.S. from English common law. Many courts have interpreted the protection of riparian rights very strictly saying that it is not enough that manufacturers use due diligence or precautions that a reasonable person would take to protect the water supply but, any harm at all to the water supply regardless of the reasonableness of the standards of precaution is the responsibility of the wrong-doer.
When the court has made a decision regarding the alleged damages caused by air pollution, the damages are then assessed to all the proven wrong-doers so that there is a shared or delegable liability which means that offenders are assessed damages according to their total contribution to the fault.
The human rights approach granting life, liberty and the pursuit of happiness as a constitutional right does not apply to cases of international offenses. Howegver, the concept is loosely conferred in transfrontier relations under the doctrine of the Universal Development of Human Rights.
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The legislature on the national scene has promoted the Environmental Protection Agency (EPA) which handled problems that involved oceanic oil spills, waste disposal plants and thermal and chemical pollution of rivers and underground water supplies. The EPA did not control air quality which was temporarily provided for in 1955 with a federal program for research and technical assistance to state and local governments. The program after being given extended authority in 1959 became a permanent authority, Clean Air Act in 1963. “Major provisions: (1) provided for federal grants to state and local air pollution control agencies to establish and improve their control programs; (2) provided for federal action to abate interstate air pollution through a system of hearings, conferences, and court actions; (3) provided for an expanded federal research and development program with particular emphasis on motor vehicle pollution and sulfur oxide emissions from coal and fuel oil combustion.”
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The act was amended in 1965 to provide for cooperation with Canada and Mexico to abate international air pollution. Throughout the rest of the 60’s the act was amended to set standards and means of cooperation between state and local governments and to control fuel additives in motor vehicles. In 1970 the amendments “provided for the establishment of national ambient air quality standards and their achievement by July 1, 1975.
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The greatest critics of the Air Quality Act complain that the deadlines set in the act have not been observed or have been extended to prolong the “clean up”. Other criticism is that control boards are not setting rigid enough standards. Karl Grossman is
Poison
Conspiracy
states that those who are responsible for administering the Act are also those who have grivate interests that oftentimes conflict with the goals of the agency..
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Some of the devices utilized by coal-powered plants that are now employed to reduce pollution to meet the ambient emissions set down in the act in 1963 are scrubbers, static screens and long stacks. The scrubbers and static screens actually remove the particulate matter from the flue gas. The smokestacks of greater height allow the pollutants to be carried higher into the atmosphere and away from the immediate area so that local residents do not feel the brunt of heat and gaseous pollutants. Critics comment that the longer stacks only facilitate long-range transport in the atmosphere so that pollutants are carried over greater regions.
Other verbal groups that have entered the air pollution arena of debate include The National Clean Air Coalition which is composed of the American Lung Association, League of Women VOters, Urban League, International Association of Machinists, United Steelworkers, Natural Resources Defense Council, Environmental Defense Fund, National Wildlife Federation, National Audubon Society, Friends of the Earth, Sierra Club, Isaac Walton League and National Parks and Conservation Association.
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On the local scene in the city of New Haven, a populous of 137,700, an estimated material and energy flow chart has been prepared. The chart reports the total in tons of fuels being consumed and the heating capacity in BTUs. The highest fuel sued is residual fuel oil (1280) producing 46,500 BTU of energy. On the opposite side the amount of sewage, solid waste and gaseous products from industry is computed as well as the shortwave and long-wave radiation. Water available for consumption is an important material and the rate of flow of rivers through the city reflect the energy potential available in the flow. (Appendix)
In concluding, the material and energy balance sheet helps to quantify energy waste and air pollution in mass amounts.