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Notes -
Tuesday's Supreme Court opinion bears a surprising resemblance to the environmental rigmarole that I described in my previous posts (1 2 3).
Scenario 1: The state DEP (Department of Environmental Protection) gives to the state DOT (Department of Transportation) a permit saying that DOT can't pave near floodways, because that might cause flooding. DOT obeys the paving restriction. Even if flooding occurs later on (due to the actions of some entity other than DOT, or due to changes in precipitation patterns), DOT cannot be punished by DEP for that flooding, because it obeyed the restrictions of the permit. (I'm not quite sure what form such punishment would actually take. Are different arms of the same government allowed to impose fines on each other?)
Scenario 2: DEP gives to DOT a permit saying that (1) DOT can't pave near floodways, because that might cause flooding, and (2), if flooding occurs, DOT will be punished. DOT obeys the paving restriction. If flooding occurs later on (due to the actions of some entity other than DOT, or due to changes in precipitation patterns), DOT can be punished by DEP for that flooding, even though it did nothing wrong.
Scenario 2 sounds ridiculous, right? Well, keep reading.
Scenario 3: The federal EPA (Environmental Protection Administration) gives to San Francisco a permit saying that SF can't discharge untreated sewage into the ocean, because that might cause the ocean to become polluted. SF obeys the discharge restriction. Even if the ocean becomes polluted later on (due to the actions of some entity other than SF, or due to changes in ocean currents), SF cannot be punished by EPA for that pollution, because it obeyed the restrictions of the permit.
Scenario 4: EPA gives to San Francisco a permit saying that (1) SF can't discharge untreated sewage into the ocean, because that might cause the ocean to become polluted, and (2), if the ocean becomes polluted, SF will be punished. SF obeys the discharge restriction. If the ocean becomes polluted later on (due to the actions of some entity other than SF, or due to changes in ocean currents), SF can be punished by EPA for that pollution, in the amount of multiple billions of dollars, even though it did nothing wrong.
The Supreme Court now has ruled, by a bare majority of five to four, that the Clean Water Act does not authorize the EPA to issue the permit that is described in scenario 4. More specifically:
The text of the Clean Water Act passed by Congress says that a permit can contain, not just "effluent limitations", but also "any more stringent limitation that is necessary to meet the water-quality standards". "Effluent limitations" obviously permits scenario 3. The question before the Supreme Court is whether "any more stringent limitation" permits scenario 4.
The five-justice majority decided that, in this context, when Congress wrote "limitation" into the Clean Water Act, it meant that the EPA needed to tell San Francisco specifically what to do in order to avoid penalties (e. g., "your discharge into the ocean must not be polluting"), rather than just vaguely gesturing (e. g., "the ocean must not become polluted while you are discharging into it").
The four-justice minority disagrees with this assessment, and thinks that the word "limitation", regardless of context, can permit the EPA to make San Francisco responsible for the water quality of the ocean, rather than just for the water quality of what it discharges into the ocean. Direct quote: "A doctor could impose a 'limitation' on a patient's diet by telling the patient that she must lose 20 pounds over the next six months, even if the doctor does not prescribe a specific diet and exercise regimen. 'Limitations' can be general as well as specific, and general limitations can call for more specific ones."
IMO, legally the argument could go either way, but practically scenario 4 obviously is unfair and the majority's decision makes a heck of a lot more sense.
(I have put this comment in the culture-war thread because of articles like this one: "Supreme Court Rules the Clean Water Act Doesn't Actually Require That Water Be Clean")
I don’t think this is the right interpretation of what is happening here. If San Francisco discharges no untreated sewage at all, then they can not be punished for the quality of the water, because they would not be contributing any pollutants to it.
This is sort of nitpicky and pedantic because no city discharges literally zero pollutants, but it makes more sense than you’re giving credit in the regulatory scheme of the Clean Water Act. There is a general prohibition on the discharge of all pollutants (33 U.S.C. 1311(a)) unless specifically exempted or permitted.
I think a lot depends on how likely it is that SF was causally responsible. For example, if the EPA said to SF in 2011: "We have detected trivially elevated concentrations of Cs-137 in the Pacific near your city, so we will punish you for that", that would be absurd, you would just punish them for sharing an ocean with Fukushima.
If it had been clear that the EPA imposed both restrictions on the easily controllable (e.g., the quality of the wastewater) and the environmental outcome, then that would be a-ok with me. If a teacher says "to pass my class, you have to do well on your homework and the final test", then I would not be overly sympathetic to a student who did the homework and failed the test -- they knew that the test was coming and that the homework might not be enough preparation for them.
On the other hand, if the environmental goal had not be previously mentioned, that would feel unfair. If a teacher said "to pass my class, you just have to do well on your homework" and then had their students take a test to pass because "if you did your homework, you will probably be fine", that would be deeply unfair.
IME, that isn't how it works in environmental law, particularly when you get to what happens if an endangered species is found on your land (as was satirized by The Simpsons with the screamapillar.) I vaguely remember hearing about a case where a guy got caught in a Catch-22 because he had two endangered species on his land, one of which was preying upon the other (failure to protect the prey species was a punishable offense; any measures taken to protect the prey species were also a punishable offense, vis-à-vis the predator species).
What does fairness have to do with law?
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Determining that someone is causally responsible takes work. Far simpler to look at the pollution and say "it doesn't matter whether you're causally responsible". Yes, the government probably wouldn't levy a penalty for radiation from Fukushima, but it would be because they haven't chosen to do so, not because they aren't allowed to.
I would argue that if you want to align rational entities through punishment, it is crucial to establish likely causal pathways.
Suppose for a minute that we cheapened out on criminal investigations. Instead of autopsies, forensics, jury trials, appeals, we would just a cop to the murder site, and that cop would be tasked with thinking for five minutes who the likely culprit is, then shoot them.
Moral considerations aside, I would argue that this would be much worse for setting incentives against murder. To get away with murder, you would simply have to outwit a cop for five minutes, which you can do reliably by not being caught at the murder scene. By contrast, nobody would report murder victims, because the risk of being the likeliest suspect would be too great.
Instead, civilization really detests murder, and is willing to spend extraordinary amounts to find murderers.
The other extreme are trivial infractions, where strict liability is more common. If you are caught driving with a broken tail light, you are on the hook for that. Nobody cares to investigate your claims that of course you checked that all your lights were working before starting the car, and that your evil neighbor inserted a light bulb on the verge of failing to frame you. The reason we do this is because the punishment is mild, and a thorough investigation and jury trial would cost much more than whatever the fine is. If the punishment for a broken tail light was death, then people would actually have incentives to frame their neighbors and we would have to investigate these cases as carefully as murders to prevent bad incentives.
Given that we are talking about a SCOTUS case here, it seems to me that the likely fine would be of an order of magnitude that spending a few millions on establishing causal relationships would not be a huge deal, even if one does not go for the 'beyond reasonable doubt' standard.
And if you're an ideologue who believes that companies are evil, you want to punish them, period, so punishing them for things that they didn't cause doesn't seem so bad.
Your scenario makes it easier to punish suspects in some ways (no trials) but harder in others (the suspects can get away if they can last five minutes). So a cop who just wants to punish people on a whim wouldn't like it. The EPA scenario only makes it easier; if the EPA wants to be able to punish companies on a whim, it's great for them.
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Then why is the clearance rate for murder cases in America around 50%?
Partly “Innocent until proven guilty” and partly because communities which have the most murders also have the highest reluctance to talk to the police.
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