Environmental Law Review Article

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The Sting of the Long Tail: The Problem of Delayed Harm in Environmental Law

Eric Biber
University of California, Berkeley - School of Law

August 30, 2008

UC Berkeley Public Law Research Paper No. 1261143

Abstract:

Many environmental harms share a characteristic feature - they occur only long after the human activity that caused them originally took place. Examples include birth defects from the drug DES, extinction of animal and plant species because of habitat destruction, the contamination of groundwater from improper hazardous waste disposal, and perhaps most importantly, changes in global climate resulting from human emissions of greenhouse gases. What is distinctive about delayed harms is that they present a particularly knotty problem for policymakers to solve. If a policymaker uses systems that are retrospective - i.e., liability - they may face insuperable administrative and practical difficulties in actually identifying the particular activities and actors that caused the harm and therefore should pay compensation. On the other hand, if they try to use regulation to prospectively address the problem, they may avoid the causation problems, but they will instead face steep political resistance to restrictions or prohibitions on activities that have long been taken for granted as acceptable social or economic behavior. Worse, even if regulation is successfully implemented and stops prospectively future harm-causing activities, there will be an extended transition period where the environmental harm will continue because of past harm-causing activities. The result can be a political backlash against the apparently "broken" regulatory system, as has occurred with the Endangered Species Act. The alternative that avoids both the causation problems and the political constraints - restoration, or active steps to undo the harm caused by past activities - is now being emphasized in the implementation of the Endangered Species Act, but can be extremely costly. These dilemmas will certainly confront policymakers seeking to address the problems of global climate change, and may require the use of restoration efforts - in the form of sequestration of carbon in the atmosphere - in order to make large-scale carbon emission regulation politically feasible.