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LAW & ETHICS IN THE BUSINESS ENVIRONMENT 8e
Instructor’s Manual
CHAPTER SIX
ENVIRONMENTAL LAW AND JUSTICE: RESPONSIBILITY AND SURVIVAL
MAIN CONCEPTS
Environmental regulation and the new environmental challenge
Politics and climate change
Philosophical perspectives
Private property, regulation and the constitution
Environmental justice
INTRODUCTORY TIPS
Try this hypothetical:
Suppose you have inherited a piece of property about two hours from where you
live and work, an undeveloped lot on a lake. It is a beautiful spot, and you intend
to build a small summer house on it, so you and your family can vacation there.
You've been saving up to do this, but after five years has passed,
environmentalists discover that your property is part of "critical habitat" for the
spotted green-toed guttersnipe, a species of lizard protected under the federal
Endangered Species Act. This means you will never be able to build on that land.
What is your reaction?
As discussion develops, add to/vary the hypo. To students who think the result is perfectly fair,
would they feel the same if they had paid $80,000 for the property, or if the guttersnipe was one
of 150 lizard species in their state? To students who think the result is unfair, set up a different
scenario: Their spouse is dying of cancer, and scientists have discovered that the spotted
green-toed guttersnipe's tongue is a crucial ingredient of a recently-approved drug that seems to
be producing remissions of that particular cancer. Suppose now that they don't own the land, but
their neighbor does. Should the government be able to prevent habitat destruction? If students
don't come up with the idea themselves, ask if the government should have to purchase the land
from the owner to preserve the guttersnipe, and explore the consequences of this option.
The idea is to preview some of the basic tensions in this chapter: the right to enjoy private
property vs. the need to preserve endangered species, and the question of how to pay for
whatever balance is determined to be appropriate.
*****
Native Village of Kivalina v. ExxonMobil Corporation, et al., Questions, p. 214
1. Was the underlying claim resolved? Why or why not?
The underlying claim was not resolved. The case was dismissed based on the political question
2. What are the three factors of analysis? Why did the plaintiffs lack standing?
The three factors are:
1) Does the court’s resolution involve “questions committed by the text of the
Constitution to a coordinate branch of government”?
3. Consider climate change through the lens of ethical theory. Are there differences
between the utilitarian and the deontological perspectives here?
Both utilitarian analysis and deontology would have serious concerns about any actions that
lead to climate change. Under utilitarian analysis, it is unlikely that any benefits from the
4. What is the best place to address this complicated phenomenon? Why?
5. Did the Ninth Circuit Court of Appeals affirm or reverse the decision? What happened
in May 2013 when the Supreme Court dealt with Kivalina v. Exxon Mobil?
The Court of Appeals affirmed the decision. For more information see:
.html
The Supreme Court denied the petition:
ENVIRONMENTAL REGULATION AND THE NEW ENVIRONMENTAL
CHALLENGE
No problems or questions in this section.
POLITICS AND CLIMATE CHANGE
Deep Freeze: How Business has Shaped the Global Warming Debate in Congress, Judith
Layzer, Questions, p. 220 -221
1. Research: Find out more about the cap-and-trade versus taxing emissions. What are
the pros and cons of each?
There are several websites dedicated to the debate on cap-and-trade versus taxation. Students
In essence, pros of the cap-and-trade approach are that it ultimately should reduce pollution as
the caps are lowered and as environmentalists purchase credits. In addition, there is incentive to
innovate in order to reduce pollution and earn money on excess credits. Cons that are reported
2. What can you find out about the International Climate Science Coalition (ISCS)? Who
funds them? What is the expertise of prominent individuals within the group? What are
their awards and achievements? How was any research funded? Ask the same questions
of the Center for Media and Democracy and the Integrity in Science project.
This is a good question for group discussion. Divide students into groups and have each group
focus on one of the organizations.
Students may comment on the lack of academic credentials, the lack of active
It is not clear who funds the ICSC. The website recruits donations. One article notes that the
Executive Director has a history of starting anti-environmental lobbying groups and receives
funds from the oil and gas industry:
Sourcewatch and the Integrity in Science sites listed in the text are Wikis with nothing new there
3. Research: The IPCC 5th Assessment Report was published in late 2013. Checks its
executive summary to discover: (1) What has changed in terms of CO2 levels since the
2007 Report? (2) Summarize the strategies the authors recommend national
governments take to most effectively reduce greenhouse gases.
A link to the report is here:
Strategies to reduce greenhouse gases are discussed here:
4. Research: The Supreme Court ruled in 2007 that the EPA could regulate CO2. Has the
agency issued any CO2 regulations yet?
The following is a link to EPA’s work regarding C02:
PHILOSOPHICAL PERSPECTIVES
Second Treatise of Government, John Locke, Questions, p. 223 - 224
1. What gives a person the right to own property? Any limitation on that right? Why
does Locke believe people form government?
"Sweat equity:" By adding his own labor to the raw stuff of nature, a person creates his right to
own that part of nature, as long as there is enough and "as good" left for everyone else to do the
Locke appears to describe another limit on the right to create private property when he states:
He that gathered a hundred bushels of acorns...had thereby a property in
But he goes on to describe bartering away extra perishables for shells or for "a sparkling pebble
or a diamond," and from there explains the use of money. In other words, Locke believed that
hoarding was fine, as long as what a person hoarded wouldn't rot.
biofuels—including ethanol, biodiesel, and advanced next generation cellulosic-based
fuels
To keep other people from interfering with the enjoyment of their private property. (This reflects
the influence of Hobbes on Locke. According to Thomas Hobbes, the original "state of nature,"
Ask if Locke's understanding, the one that informed the original creation of the USA and its
2. What are ways in which Locke’s philosophy does not appear to not fit the twenty-first
century context?
Answers will vary by student. As the text notes, Locke wrote before the Industrial Revolution.
He mentions that people should be free to use their property as they see fit – trade it for other
3. What do you think Locke would say about a government that banned the use of
dangerous equipment or polluting processes, restricting a company’s right to operate as
it chooses?
Universal Declarations of Rights of Mother Earth
The U.S. and its Climate Change Policy: Advocating an Alignment of National Interest and
Ethical Obligations, Questions, p. 225
1. What differences do you see between the Lockean view of nature and the views
expressed in this document?
The Lockean view see mans as a dominant force, in control of nature. This document sees nature
2. Research: Find out what happened with the 2010 lawsuit a group of environmental
activists brought against BP in Equator.
The last noted action in the case was in 2012 when BP was asked to respond:
3. What are the arguments for and against the establishment of an international Climate
Justice Tribunal?
PRIVATE PROPERTY, REGULATION AND THE CONSTITUTION
Lucas v. South Carolina Coastal Council, Questions, p. 231 and 232
You may want to begin the discussion of Lucas by asking students what they think of the whole
notion of eminent domain. Mention Berman v. Parker, 75 S.Ct. 98 (1954), where the owner of a
profitable department store which happened to be located in a slum tried to block the District of
Columbia from exercising its powers of eminent domain. As a way of dealing with urban blight,
the District had decided to raze certain areas of the city and rebuild. The Court refused to second
guess this use of the police power:
The concept of the public welfare is broad and inclusive. The values it represents
are spiritual as well as physical, aesthetic as well as monetary. It is within the
power of the legislature to determine that the community should be beautiful as
well as healthy, spacious as well as clean, well-balanced as well as carefully
patrolled.
From here, make sure students understand that the government may regulate private property in
ways that drastically reduce its value without paying compensation. This is the question that
underlies Lucas: When is regulation a "taking?" At what point must government pay the owner
for restricting private property rights?
1. What are the two contrasting stories in this case? Do you think Lucas knew when he
bought the land that by building on it he would soon be the owner of a “pig in a
parlor”?
The majority described Lucas as a person who had paid nearly a million dollars for a couple of
"residential lots" on an island off Charleston, South Carolina, at a time when the land was not
From the dissent, we get another picture entirely. Lucas is a developer: "a contractor, manager
and part owner of the Wild Dune development" on the island, where he has lived since 1978. In
This is different, really, from Euclid, where land became a "pig in a parlor" when a new zoning
2. What two types of actions automatically trigger compensation? Why does the dissent
object to this approach?
(1) When government creates an actual physical invasion of land, no matter how slight; and
(2) when government regulation removes "all economically beneficial or productive use of land."
Ask if this is a logical way to draw per se lines. In the Loretto case, New York City had
authorized the stringing of 36 feet of one half inch coaxial cable and the placement of two
switchboxes--all amounting to about one and a half cubic feet--onto a private building. This
The history of takings law is convoluted and has engendered much analysis. See these two
seminal articles: Joseph Sax, "Takings and the Police Power," 74 Yale L.J. 36 (1974); Frank
Michelman, "Property, Utility and Fairness: Comments on the Ethical Foundations of `Just
Compensation'" 80 Harv. L.Rev. 1165 (April 1967). See also University of Chicago professor
The dissent noted that the Supreme Court “repeatedly” has recognized the ability of government,
in certain circumstances to regulate property without compensation “no matter how adverse the
The dissent focused on the need of the government, not on the plight of the landowner.
3. What role does nuisance play in this case?
The majority opinion noted that the government may halt a use of property that is harmful to the
public without paying compensation to the owner if the government could have done so under
The dissent would allow the government for the benefit of the public to prohibit development of
4. Consider each of the following laws as potential regulatory takings. Summaries to each
case are given as links.
(a) The Texas Open Beach Act (Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009))
(b) Florida beach erosion (Stop the Beach Renourishment Inc. v. Florida Dept. of the
Environment, 998 So.2d 1102 (Fl. 2008))
5. What happened when the Supreme Court decided Koontz v. St. John River Water
Management District, 133 S. Ct. 2586 (2013)?
The Supreme Court decided in favor of Koontz. An analysis of the decision by the National
Association of Home Builders is found here:
