Transcript Property I Fall 2008

Property II
Professor Donald J. Kochan
Spring 2009
Class 34
28 January 2009
Today’s Readings
Please download the following reading assignment
(full text article):
Runoff and Reality: Externalities and Traceability
Problems in Urban Runoff Regulation,
9 CHAPMAN L. REV. 409 (2006).
For further (non-required) information, see:
Chapman Law Review Symposium 2006
The Slippery Slope:
Urban Runoff, Water Quality,
and the Issue of Legal Authority
Friday, January 27, 2006
http://www.chapman.edu/LawReview/symposium2006.asp
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Non-Required
Supplemental Reading
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EPA Stormwater Runoff Home Page:
http://cfpub.epa.gov/npdes/home.cfm?program_id=6
“Stormwater runoff is generated when precipitation from rain and
snowmelt events flows over land or impervious surfaces and does
not percolate into the ground. As the runoff flows over the land or
impervious surfaces (paved streets, parking lots, and building
rooftops), it accumulates debris, chemicals, sediment or other
pollutants that could adversely affect water quality if the runoff is
discharged untreated. The primary method to control stormwater
discharges is the use of best management practices (BMPs). In
addition, most stormwater discharges are considered point sources
and require coverage under an NPDES permit.”
Runoff and Reality:
Externalities, Economics, and Traceability
Issues in Urban Runoff Regulation
Donald J. Kochan
Abstract
It has long eluded regulators and private enforcers how to control the imposition of negative externalities. This paper
will examine: (1) Whether existing authorities (like the Clean Water Act) are capable of providing regulation of
urban runoff; (2) Whether, in light of economic controls, regulation of these activities are necessary; (3) A
summary of recent runoff litigation; and (4) What is next; what should be next? Although each of these
questions form background, the primary emphasis currently anticipated for this presentation is on traceability,
collective action, and free rider problems that motivate reguation in this area.
Often runoff is described as “non-point source” pollution. According to the United States Environmental Protection
Agency (“EPA”), “States report that nonpoint source pollution is the leading remaining cause of water quality
problems.” As a result, determining the origin of certain pollutants becomes very difficult – if you cannot trace
them to a certain dumping pipe because the substances simply runoff from a non-point source it becomes far
more difficult to identify the originating location of contaminants. This Article will explore these difficulties.
In addition to and in conjunction with federal regulation, most states have implemented plans to control for the
contribution of runoff and non-point source pollution to water quality, but it is a still developing area of
environmental law. The complexity of this process of regulation, however, is high.
This Article remains largely agnostic and focuses on the complexities and difficulties that must be taken into
consideration as regulations develop and are applied in this area. It attempts to identify the metrics, economics,
and realities that must underlie the regulation of runoff.
The Alley
From the Reading: “The alley behind my former Washington, D.C. condominium had a problem. Food waste, grease, and undoubtedly contaminated water from the next door
small-business restaurant poured down the sloping alley into local sewage drains every night. It was strewn down with, I suspect, no recognition of its consequences or
its potential illegality. I often wondered – do these owners know the legal requirements, do they have a permit to dump kitchen waste, and do they know the
consequences of this runoff. I also wondered about the pervasiveness of such practices throughout similar businesses. I believe that state and federal regulators wonder
as well, which explains the increased promulgation of regulations and increased monitoring and enforcement of runoff. It has long eluded regulators and private
enforcers how to control the imposition of negative externalities. My neighbor restaurant when I lived in downtown Washington, D.C., nightly spewed its garbage into a
descending alley – it was runoff that ended up in sewers, streets, and sidewalks. Now this is an activity that is replicated – intentionally or unintentionally – throughout
commercial activities. I highly doubt the EPA ever visited my neighbor restaurant.”
Major Issues to Focus On
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Point and Non-Point Pollution -- Definitions
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sic utere tuo ut alienum non laedas
Externalities, Trans-boundary Effects, and Internalization of Costs
Demsetz
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Coase
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Lazarus
Cutting & Cahoon
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Huffman
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Rose
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Halsbury
Butler & Drahozel
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Epstein
Anderson & Leal
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Others
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Major Issues to Focus On
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Collective Action
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Traceability
Free Riders
Information Costs
Markets and Market Failures
Justification for Regulations and Alternatives Thereto
Concluding Thoughts
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Runoff is just one case study in the complexities associated with the
regulation of private property.
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Understand that the concepts, problems, and complexities discussed
inform how decision-makers choose to regulate private property.
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Question whether these issues justify a “presumption” in favor of
regulation or whether less coercive alternatives can satisfy society’s
goals
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Focus also on the distinction and choices between private land use
controls, judicial land use controls, and legislative land use controls
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Always ask what methods the players can or should use to achieve
satisfaction of their preferences and the minimization of harm