[MUSIC] Hi everybody and welcome to week five of the course. Before I go in to today's materials, let me give you all a heads up that this week, we are posting a research assignment. For those of you simply trying to complete the course with a Certificate of Accomplishment, you do not need to do this assignment. Everybody of course is welcome to look at it and to try it. But if you're trying to get a Certificate with Distinction, it is one of those exercises you need to do. My suggestion though is not to look at it until after we've talked about drinking water in session two of this week's video materials. Today, we're going to pick up on something I talked about in the last session, the theory session when I was dressed up in my tux. We talked about environmental distributions of risks and that it matters to people. How research is distributed, not just how many of us will suffer or die, but who they are and how the rest are distributed? It's impossible not to raise that issue without linking it to environmental justice. One of the core elements of any emerging theory of environmental law, because environmental justice asks just that. Who bears these risks? Not just what the risks are. Of course, environmental justice is a much broader concept. Than, just who bears risk among different members of human populations? In my view, environmental justice has to grapple with bigger issues of obligations we owe to other species. Obligations we owe to future generations and issues like that. But, as long as we're talking about distribution of risks, and last session we introduced ourself to waste issues. Let's link the two together, and talk about environmental justice, waste and movement across borders and environmental distribution issues that that raises. I had you read a case from the United State Supreme Court, City of Philadelphia versus New Jersey. The important thing to realize about this case is that Philadelphia is in the state of Pennsylvania, almost adjacent to the state of New jersey, none the less, New Jersey and Pennsylvania are two distinct states. The city of Philadelphia had some waste, solid waste, meaning everyday type of garbage. It wanted to get rid of it, and had contracted with land fill operators in New Jersey. New Jersey, however, had adopted a statute that prohibited the importation in to New Jersey of any solid waste that originated across state borders. Unless the state had determined that the importation could take place without endangering any New Jersey citizen's health. This case went to the US Supreme Court, under a part of the US Constitution known as the Commerce Clause. The Commerce Clause, when our nation was founded gave to the federal government, to our congress, the ability to regulate interstate trade. This was quite an important issue, because otherwise, the states of the United States could be quite bulkinized in terms of trade among themselves and erect terriffs and terriff barriers, and not be very united at all. One consequence of this delegation to the federal government in the US Constitution is that states are not suppose to erect trade barriers of their own. Regulation of interstate trade is given to the federal government not to the states. And the question was, whether or not the New Jersey law erected just such a barrier. In the city of Philadelphia decision the Supreme Court confirmed that moving waste across state borders is definitely part of commerce. There are businesses involved. There is supply. There is demand. And the state in this case, had definitely walled itself off from that commerce, even though the constitution gave power over inter-state trade to our congress. To that extent, the court found it pretty easy to conclude, this statute was unconstitutional, and it struck it down. The Supreme Court has never wavered from its decision in city of Philadelphia, and yet if you think about it, some pretty obvious implications are going to flow from it because, if in fact, states and localities cannot prevent the commerce in waste, it's no shock. That waste will tend to find itself going to locations where it is cheapest, where in particular land is cheapest. And that means that there will be concentrations of risk we would predict in places where there are relatively low income individuals. Who live in areas where real estate prices are low, in part they might live there because the prices are low. This in fact is born out by really disturbing statistics about the relative disproportionant amount of risk born, in the United States in particular, by people of color, low-income individuals, and poorly-educated individuals. One study found that three out of four waste sites in the American southeast are located in areas that are predominantly African-American. Nationally the same pattern holds, with a comparison of zip codes where there are waste facilities and zip codes that have populations of low income individuals and African Americans, as well. That's a national statistic. And in some ways, environmental injustice goes beyond mere siting decisions. There are also disturbing correlations between African Americans and superfund sites. Where the data shows that African Americans are much, much, much more likely to live within one and four miles of the types of superfund sites we identified last time. Moreover, at existing superfund sites there are disturbing statistics that the government, the federal government in this case, imposes penalties on polluters at a much higher rate in superfund sites that are located in predominantly white areas than in African American areas. All of these reveal a disturbing distribution of risks. Not based on anything but color and income and perhaps educational values that belie the idea that there is a right to environmental protection. Or put another way, if there is to be a right to environmental protection, environmental law needs to grapple with these sorts of inequities. There is an international analog to what happens in the United States in the international community as well. And perhaps the most famous example of this, at least recent example of this was a ship that in 2006, carrying waste from a Mexican oil refinery first tried to dock in Amsterdam. But there where the tipping fees, the fees to pay to off load this relatively hazardous materials were so high turned away, and went to Africa, to the West Coast of Africa, to the Ivory Coast. Cote d'Ivoire, and there off loaded this very hazardous material. The result, people died, thousands of people were sickened. 9,000 people were hospitalized. There was a political crises in the government, and in subsequent litigation, tens of millions, even over 200 million dollars has been spent by the companies responsible to try to compensate for the harm that was caused. But do you see the bigger issue? Because it was so expensive to take care of one's waste in relatively developed economies who insist on high standard and expensive standards to deal with this dangerous material. The market will move to cheaper areas, thereby exacerbating environmental injustice internationally. So the question is, can poor countries keep out hazardous waste? It turns out there is an international treaty known as the Basel Convention that addresses this issue. It entered into force in 1989 and was ratified in 1992. The Basel Convention does require notice and approval by the receiving country and as a principle, articulates that waste should be treated as close to its source, its originating source, as possible. And transboundary movement of hazardous waste in particular shouldn't take place unless it is the most environmentally safe method of disposal and then is done in an environmentally safe manner. To be honest there is so much hazardous waste every day being shipped internationally. One wonders what the effect of the Basel Convention is in the best of circumstances. But there's also a legal question. Is the Basel Convention legal? Don't forget, there is also the general agreement on terrafin trades administered by the World Trade Organization framework that we've looked at. We've looked at it twice. And inarticulate a principle of free trade not unlike the principle of free trade in the United States constitution's commerce clause. In fact in some way the GATT WTO framework is an international commerce clause, not unlike that we saw in City of Philadelphia versus New Jersey. And of course, under that principle, countries are not supposed to wall themselves off from commerce of any kind. Can the GATT treaties and the Basel convention coexist? Let me ask you this. We've looked at the GATT WTO convention before. Can you think of one part of the GATT convention that might provide an answer? Just yes or no at this point would do. Do you remember the beef hormone dispute that we looked at? Is there something in that dispute that you think might help in this case resolving any tensions between the GATT treaty and on the other hand the Basel Convention? At this point you probably have recalled article 20B. And article 20B says there shall be free trade, but a country is within it's rights not to accept imports when necessary to protect human health. The question is, is this exception strong enough to address questions of trade in waste products? It turns out that in 2007, the World Trade Organization addressed just such an issue. And ironically it was a dispute between the European communities, the same communities that in the Bovine growth hormone, the beef hormone case did not want to allow trade in the interest of protecting health against Brazil. Except this time it was Brazil that did not want to allow importation of retreaded tires coming to it from Europe. It had reasons why it didn't want to allow the importation of retread tires. And they were health reasons, and there were several of them. One is these sorts of tires inevitably and very quickly get discarded and among other things in the wet tropics provide areas that where water accumulates many mosquito born diseases, such as dengue fever and malaria are spawned from these little pools of water as well as other problems. Those issues plus increasing risks of fires being caught in areas where these tires are disposed, and other types of safety concerns are what Brazil articulated before the WTO panel in this dispute. Brazil pointed out that there was scientific reason for each of its objections. The EC, however, demanded quantification. The argument made by the EC was, well, you really need to quantify the risk, so we know this isn't just a pretext for protectionism on your part, so that you can keep the tire market for yourself. Do you see the irony? It was precisely the opposite position that Europe took in the beef hormone dispute, where it was the United States, that was insisting on quantified risk, versus more qualitative approach to risk. But now when it suited it's interest, the European communities took the opposite position. No matter what the litigating positions of the parties were, here's the important thing. The World Trade Organization, both the panel and an appellate body to which the panel's decision was appealed, held together that Brazil's qualitative approach was enough. Brazil had articulated a scientific basis. Brazil was entitled to decide what level of health it wanted. And for the most part, the WTO upheld, provisionally, Brazil's ability to stop the importation of this type of waste under the GATT WTO protocol. At this point, we could conclude that, yes, a legal answer can exist. Which suggest that on the international level it might be permissible under the international commerce rules of the GAPP WTO for a receiving country not to accept waste, when it can show that would create a risk, a health risk to its population. On the other hand, before we get too excited about the fact that there is this important legal argument, there is every day, ongoing, millions of tons of waste, much of it hazardous, moving internationally between borders just as we speak. This is an issue that your generation needs to come to grips with. Next time, we're going to shift our attention to drinking water. We're going to look at fracking, a very controversial drilling technique for oil and gas, and we'll start to shift over to concerns about water and water pollution. I'll see you then. [MUSIC]
