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PaperclipPerfector  5d ago (text post)   27952 thread views

Culture War Roundup for the week of March 3, 2025

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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.

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.

I think a lot depends on how likely it is that SF was causally responsible.

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).

that would be deeply unfair

What does fairness have to do with law?

I think a lot depends on how likely it is that SF was causally responsible.

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.

I would argue that if you want to align rational entities through punishment, it is crucial to establish likely causal pathways.

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.

Moral considerations aside, I would argue that this would be much worse for setting incentives against murder.

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.

Instead, civilization really detests murder, and is willing to spend extraordinary amounts to find murderers.

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.

Okay, "SF can't discharge untreated sewage beyond the limits prescribed in this permit (which are made necessary by its combined sewer system) into the ocean".

"Federal Government Requires City to Upgrade Creaky, Dirty, Outdated Sewage Treatment System" is not a banger headline likely to inspire outrage.

Federal Government requires city to upgrade outdated sewage treatment system, but won't tell them in advance what quantitative target they need to meet in the new one, so they might spend millions and still be fined over it?

I'm all for mandating an upgrade, but you've got to tell them what the target is.

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