SS+EWaste+neg+-+Environmental+Law+and+Industrial+Blaming

Environmental law externalizes responsibility—society shrugs off their own contributions to environmental problems by blaming them on industry. The 1AC lays the full blame of dumping e waste on the industries and skirts the core issues that the US companies are disposing of the Americans laptops - Americans who have to upgrade laptops every few years, American’s who buy into Steve Job’s mentality that individuals should buy a new ipod every 6 months. Americans, with our pockets full of new and innovative technology, according to the plan, don’t need to feel guilty about being on their 4th ipod in three years for now the true criminal, the companies who dispose of the ipods, will be taxed and clean up our mess. This cycle of industrial blaming not only reinforces and encourages consumeristic behavior, but it means society will constantly be dumping our waste onto someone’s hands, turning the case. Professor **__Bobertz__** (Assistant Professor of Law, University of Nebraska College of Law. A.B. 1983, Grinnell College; J.D. 1988, SUNY Buffalo Law School. An earlier version of this Article won the 1995 Call for Scholarly Papers Competition held by the Association of American Law Schools and was later presented at the 1995 AALS Annual Meeting “Through Pollution Control Laws: Reflections on Scapegoating Theory” Texas Law Review, 19**__95__**, p.749) [Gunnarsdottir]

In the eyes of many observers, environmental law suffers from two vital defects: incomprehensibility and ineffectiveness. Throughout the Gordian passageways of environmental law, one repeatedly confronts the arbitrary, the unintelligible, and the futile. Environmental statutes have been called, among other things, "hollow," [|**1**] "mind-numbing," [|**2**] and the product of pathological law-making. [|**3**] Professor Joseph Sax polled the nation's environmental law professors and found despair with the subject endemic among those who teach it. [|**4**] In fact, many environmental statutes bring to mind Gertrude Stein's impression of Oakland, California -- there is no //there// there. [|**5**] And what //is// there, once uncovered after painstaking **[*713]** study and acronym translation, often turns out to be nothing more than incantations of impossible promises, [|**6**] strategies of deadline avoidance, [|**7**] loopholes for favored industries, [|**8**] and heaping piles of regulatory minutiae usually reserved for the //Code of Federal Regulations// or more obscure legal sources. [|**9**] To date, explanations for the intellectual bedlam of environmental law have included analyses of the byzantine organizational and jurisdictional structures of congressional subcommittees, [|**10**] models of public choice and game theory, [|**11**] lessons from evolutionary biology, [|**12**] and visions of **[*714]** impersonal institutionalized corruption. [|**13**] This Article offers an alternative theory for understanding both the convolutions and the failures of environmental law. Drawing on insights from the fields of anthropology, psychology, and media studies, I examine the phenomenon of societal scapegoating as a means for developing collective solutions to complex, poorly understood problems. My thesis is straightforward: __Environmental lawmaking provides an important avenue for alleviating what we -- individually and collectively -- experience at some level as guilt or shame for the environmental degradation__ we witness through a world view shaped, in large measure, by the media. By offering this scapegoating or guilt-redemption theory, I do not attempt to provide a full explanation of environmental law and its genesis, and I certainly do not purport to diagnose the American psyche. However, I do attempt to explore some of the most basic, yet least understood, questions of the field: Why have we chosen to control pollution through the particular means we have, and __why do we create legal responses to some environmental problems but not to others?__ [|**14**] The theory advanced in this Article relocates federal environmental law, a relative newcomer to the legal scene, to a more traditional place in the geography of social reform legislation. Rather than manifesting an unprecedented legal experiment, __environmental law__ simply __reflects__ a recent iteration of an old problem -- __the attempt to influence mass behavior through the instruments of the legal system__. In environmental law, one witnesses the same issues that for decades have provided grist for reform-minded lawmakers: struggles to define desirable and undesirable behavior; debates over incentives, deterrence, and punishment; and questions about who makes the rules and when these rules might violate other aims and values of society. As with other areas of the law, these issues all emerge in the context of a complex, multitiered system of delegated collective power and individual liberty. **[*715]** In contrast to other areas of social reform, however, __environmental law presents__ some __unique problems.__ While the causes of crime, poverty, and other social problems can, without too much intellectual turmoil, be attributed to individual behavior, __environmental degradation appears to implicate all of us.__ Pollution can strike observers as the integral by-product of the relatively comfortable lifestyle

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enjoyed by a majority of Americans in the late twentieth century. Yet, with images of smokestacks, dying lakes, and oil-drenched otters constantly intruding on the public consciousness, we are forced to live out Pogo's dilemma: We have met the enemy, and he is us. [|**15**] Because the deep-seated causes of pollution tend to implicate us all, we feel the desire for psychological guilt release or redemption with special force. Thus, **__laws that externalize blame to outside forces allow us to preserve a way of life to which we have grown accustomed and one that we are reluctant to change -- the very way of life that generates pollution in the first place.__** __Environmental laws__ help us escape this psychological dilemma. They __establish__ __clear lines between the perpetrators and the victims, maintaining our position safely on the side of the innocent by treating__ pollution not __as a__ natural, expected outcome of industrialization, but instead as an __aberration from a norm of cleanliness.__ Environmental laws and the social patterns they reflect raise troubling questions. If we reduce the purpose of environmental law to merely stopping end-point pollution, we inevitably discourage scrutiny of our basic habits and ways of life. __With pollution being "taken care of" by the government, only the most guilt-sensitive will take action to change their own behavior__, and only the most fervently committed will press for deeper changes in our systems of production and waste disposal. Unfortunately, these ardent few occupy a marginalized position in mainstream America, and __as the process of environmental lawmaking marches onward__ -- identifying and punishing its scapegoats -- __the underlying causes of pollution are rarely mentioned, let alone acted upon.__ [|**16**] Thus, environmental legislation presents a striking example of how the law can legitimize an existing state of affairs while simultaneously creating the appearance of reforming it. In exploring the scapegoating thesis, this Article will proceed in five parts. Part II introduces the basic theory of environmental scapegoating. It examines how __society tends to blame environmental problems on readily identifiable entities or symbols that may or may not__ __correspond to the__ **[*716]** __actual causes of the problems at hand.__ Part III examines patterns of reporting in the news media and notes how these patterns both reflect and exacerbate society's tendency toward environmental scapegoating. Part IV then presents an in-depth case study of the //Exxon Valdez// oil spill and the ensuing Oil Pollution Act of 1990 to demonstrate how the scapegoating phenomenon both influences public opinion about environmental problems and distorts legislative outcomes. Part V applies the scapegoating theory to additional areas of environmental law, and finally, Part VI concludes that current trends in environmental lawmaking legitimize the very problems that the laws purport to control, thus helping to explain the overcomplexity and ineffectiveness of current environmental legislation.

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Ritualistic Recycling - By calling for recycling, we are able to ritualistically wash away the collective guilt that we have for being wasteful. Dealing only with these external manifestations, the aff skirts all personal responsibility. Any environmental law that focuses on these external manifestations avoids and prevents dealing with the root cause of the problem – our collective habits and appetites. Professor **__Bobertz__** (Assistant Professor of Law, University of Nebraska College of Law. A.B. 1983, Grinnell College; J.D. 1988, SUNY Buffalo Law School. An earlier version of this Article won the 1995 Call for Scholarly Papers Competition held by the Association of American Law Schools and was later presented at the 1995 AALS Annual Meeting “Through Pollution Control Laws: Reflections on Scapegoating Theory” Texas Law Review, 19**__95__**, p.749) [Gunnarsdottir]*perm

VI. **Legitimizing Pollution** Through Pollution Control Laws The phenomenon of environmental scapegoating helps to foster the massiveness, disorganization, and incomprehensibility that plague environmental law. [|**176**] When lawmakers react to a social problem by enacting legislation that hinges on a distorted picture of reality, a legal regime that lacks appropriate formative principles is an unsurprising result. Moreover, a law that depends on false diagnoses will grow in complexity as its legal **[*742]** suppositions come into increasing conflict with the facts. [|**177**] As a coping strategy, lawmakers opt to adjust (and complicate) legislative programs only enough to accommodate the current problematic factors instead of starting fresh with new models that conform more accurately to the true problem. [|**178**] The Clean Air Act's "nonattainment program" (a euphemistic name for a failing system) provides a good example. Its length and complexity increased geometrically between its initial enactment in the mid-course correction amendments of 1977 and its second, monstrously intricate iteration in the 1990 amendments. [|**179**] Explaining the nonattainment provisions and other aspects of the 1990 Clean Air Act amendments to lawyers ordinarily accustomed to reading and understanding statutory law continues to provide lucrative business opportunities for continuing legal educators. [|**180**] Overcomplexity in the law by itself imposes costs on society. Initially, regulated entities must add to their ordinary cost of compliance the cost of simply understanding what the law requires them to do. Complicated laws also increase the likelihood of noncompliance, [|**181**] undermining the attainment of environmental goals and creating pressures for extending **[*743]** deadlines and raising permissible emission levels -- a pattern endemic in environmental law. [|**182**] Even more troubling is the fact that unnecessary legal complexity deprives society at large of a common, comprehensible vocabulary for debating environmental policy. A system of democratic rule implies discourse not only among a select group of experts, but also among the voting public. Environmental law has swollen into a fortress of specialized concepts and jargon practically impregnable to ordinarily informed and aware citizens. [|**183**] Creating barriers to public understanding of, and involvement in, environmental law frustrates the theoretical virtues of democratic self-rule and also engenders a problem of more practical import -- a spirit of confusion and anger that characterizes most public encounters with environmental problems and the laws erected to correct them. [|**184**] Such encounters typically result in resignation and apathy toward the law, qualities that impoverish any legal system directed toward social reform. [|**185**] Ultimately, the legacy of environmental scapegoating may be the paradox of legitimizing polluting activities while simultaneously appearing to curtail them. The legitimizing effect of environmental lawmaking involves two factors that will be discussed in detail in separate sections below. The first section notes that __environmental legislation does not merely punish the blameworthy; it exonerates the "innocent."__ __Upon the conviction of one suspect, the others are set free__. Thus, the appearance of positive action in Washington (or the state capitol) creates the impression that a problem has been solved and repairs the perceived break in the social order that had given the law its initial momentum. The second section **[*744]** observes that enacting any social reform legislation, including __environmental laws, [|**__186__**] creates new expectations and patterns of behavior that harden with time into societal structures that, however flawed, prove nearly impossible to alter__. Today's innovative solutions can become tomorrow's institutionalized nightmares, [|**187**] a pattern from which environmental law enjoys no immunity. //A. Rituals of Guilt Redemption in Environmental Lawmaking// The first aspect of the legitimizing effect of environmental law centers on guilt, [|**188**] shame, [|**189**] and forgiveness, subjects that have engaged human thought for millennia. [|**190**] How are these subjects pertinent to **[*745]** environmental law? To state the case plainly, __the enactment of environmental laws can be viewed as ritualistic acts of redemption for the collective guilt of a society ashamed of its polluting ways.__ __To be sure, the laws are intended to address real problems with the legal tools at hand.__ But __on another level, environmental law functions to absolve a culture at odds with its own conception of itself__. Fleshing out this idea requires discussion of two basic premises: (1) the existence of "guilt" for environmental problems and (2) the suggestion that passage of environmental laws can function to expiate such guilt, much like the scapegoat rituals discussed above. [|**191**] As to the first premise, Environmental Law K

knowledge of environmental problems, unlike other issues of exigent social import (//e.g.,// crime, health care), has the unique capacity to bring the observer within the circle of the blameworthy. Knowledge of other social problems may produce anxiety, fear, and anger, but the causes of these problems are rarely thought to implicate the observer personally. [|**192**] By contrast, __a feeling of personal involvement in environmental problems can be difficult for many people to avoid, particularly as we learn about these problems through the starkly moralistic__, good-versus-evil narratives of the media. __For example, reports of oil spills, burning tire piles, and the environmental culpability of automobile emissions appear in the news with regularity, yet we continue to drive our cars as before, contributing our part to the overall problem__. __Because one's own share of the responsibility is small, a change in personal behavior is unlikely.__ Yet __knowledge of one's personal involvement in the larger problem can__, in many people, __produce feelings of guilt__. Advertisements for environmentally benign products and slogans like "think globally, act locally" reinforce this sense of personal responsibility. [|**193**] __Individualizing blame has been a central aspect of environmentalism from the beginning__. As Senator Muskie said in 1970: "It is easy to blame pollution only on the large economic interests, but pollution is a by-product of our consumption-oriented society. Each of us must bear his share of the blame." [|**194**] By way of illustration, suppose a version of the "garbage-crisis" story plays on the evening news. Even if the story involves other people's **[*746]** garbage (recall the travails of the "garbage barge"), [|**195**] the observer may find it difficult to escape the central message that gives the story its emotive power -- we //all// create waste, and as a nation we do so in prodigious quantities. The irrefutable fact of personal waste production (we all take out the garbage and flush) situates the observer among the perpetrators of the problem and not just among its victims. The feelings of guilt thereby created may exist at low frequencies, but they exist nonetheless. Witness the booming popularity of recycling programs. [|**196**] By taking part in these programs, one does the environmentally "right thing," regardless of the particular program's ultimate effectiveness. __Participation in recycling activities may be motivated as much by the desire to ease a troubled conscience as by an individual commitment to abstract principles of waste reduction__. In addition, sixty percent of Americans identify themselves as "environmentalists," and another thirty percent lean in that direction. [|**197**] At various times, polls indicate that people rank environmental issues at or near the top of the list of problems facing the country. [|**198**] Yet conforming one's personal behavior to an espoused concern for environmental quality takes the kind of energy, time, and diligence that few people can consistently muster. Alternatives to this guilt-producing predicament hold little appeal. They include: cynically denying either that environmental problems exist or that personal action matters; engaging in various forms of Ludditism; or resigning oneself to some degree of personal hypocrisy. Environmental guilt -- endemic in some people, negligible or absent in others -- seems an inevitable consequence of enjoying the benefits of life in an industrialized nation that simultaneously has an insatiable appetite for crisis-driven environmental journalism. [|**199**] Questions of guilt lead to matters of atonement. "The real question," one author writes, "is not how one gets into guilt but how one gets out of **[*747]** it." [|**200**] According to psychologists, theologians, and the voice of common experience, feelings of guilt engender a desire for forgiveness. [|**201**] This desire for absolution lies at the core of many religions. Rituals of guilt redemption -- however counterfeit they might appear to nonbelievers -- are vital to the devout. [|**202**] But in a religiously heterogeneous society like the United States, there can be little hope for consensus about which //religious// ceremonies carry the true powers of redemption. [|**203**] What we do share, however, is a common faith in the power of //law.// One might argue that the legalistic character of American society fills the vacuum created by the lack of common religious values. Law thus becomes our secular religion, having its own sacred texts and its own priesthood -- whether they wear the robes of judicial power, fill the seats of Congress, or occupy the Presidency. [|**204**] **[*748]** Without commonly accepted religious ceremonies to expiate guilt, Americans turn instead to the sanctifying rituals of lawmaking. The ritualistic elements of legislative action are difficult to dismiss. In environmental law, we have our own sacred clerics, scapegoats, and rites of redemption, even though they inhabit the seemingly a sectarian world of law and politics. Indeed, the inherent spiritualism associated with nature provides a special religiosity to environmental lawmaking, as twenty-five years of incantatory rhetoric from the mouths of our leaders amply prove. [|**205**] Unfortunately, when society retrofits the simple calculus of blame, sacrifice, and redemption to resolve complex social problems, it leaves a legacy of legislative overbuilding and conceptual chaos -- precisely the condition of environmental law today. The enactment of environmental laws also includes a less virtuous tendency to return with one hand what is taken away by the other. We wish to exorcise our demons, but still retain the pleasures of their company. __A law that strikes at the external manifestations of an environmental problem satisfies the common desire for identifying and banishing the guilty.__ On a personal level, however, no one wants her own habits exposed to the same harsh light. __By acting with righteous vehemence against the visible end-products of pollution, we avoid asking harder questions about__ global resource allocation and the sustainability of existing industrial, agricultural, and __personal patterns of behavior. Enactment of environmental laws not only releases us from guilt -- or the state of being "part of the problem" –__

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__but also enables us to avoid scrutinizing deeper patterns that implicate our personal habits and appetites.__ Few would like to admit that these habits, and not simply the immediate targets of environmental law, create the very problems the law appears to address. In this manner, __laws aimed at curtailing pollution can ultimately create barriers to lasting reform by legitimizing the more deeply rooted causes of pollution that the very process of lawmaking has exonerated from blame__. Except for the environmental scapegoats -- duly shamed and punished -- the rest of society is liberated, free to pursue its old ways without fear of reprisal. **[*749]**

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We need to focus on the other end of the pipe – by focusing on the pollution, e.g. the computer waste in Africa, we never address the cultural view that we should be able to produce, consume and dispose of as much as we like and wherever we would like. Empirically, only accepting our responsibility for producing these products will allow for true change Professor **__Bobertz__** (Assistant Professor of Law, University of Nebraska College of Law. A.B. 1983, Grinnell College; J.D. 1988, SUNY Buffalo Law School. An earlier version of this Article won the 1995 Call for Scholarly Papers Competition held by the Association of American Law Schools and was later presented at the 1995 AALS Annual Meeting “Through Pollution Control Laws: Reflections on Scapegoating Theory” Texas Law Review, 19**__95__**, p.749) [Gunnarsdottir]

//B. Institutionalizing "Pollution"// The passage of environmental laws, as with the creation of any legal regime of social reform, establishes new expectations and incentives and results in new patterns of behavior. Unavoidably, laws rely on and institutionalize the regnant assumptions of their period. When the engines of lawmaking produce the kind of massive legal system epitomized by environmental law, that system (with its then-prevailing wisdom) solidifies over time into a set of expectations around which subsequent legal and technological developments must adapt. The fact that regulated businesses desire consistency in the application of the law only hastens the fossilization of assumptions buried within the system's original framework. Although any number of assumptions about the nature of environmental problems could be extracted from a study of environmental law, one in particular has driven the system from the beginning: __the idea that "pollution__" -- the stuff billowing from the top of the smokestack -- __is itself the problem on which the legislative eye should focus.__ __Pollution is__ not viewed as the result of other problems; it defines -- or //is// __-- the problem itself__. __Deeply ingrained in our vocabulary and world view, this idea has clearly molded American "pollution control" laws and their emphasis on treatment and disposal at the end of the pip__e (that is, the point at which pollution itself becomes manifest). In turn, __this emphasis reinforces the cultural view that pollution itself, rather than its deeper roots, is the evil to be eliminated by acts of legislation.__ __A preoccupation with pollution__ //qua// pollution __is not__ the only -- or most __desirable__ -- means __for achieving the aims of environmental law.__ Within the past decade, a devoted group of regulators, environmentalists, and businesses have championed the idea of "pollution prevention" as a new approach to environmental protection. [|**206**] __The idea behind pollution prevention is simple. Instead of concentrating on end-of-the-pipe solutions to pollution abatement, society should concentrate its energies on developing cleaner ways of producing waste-generating products__. [|**207**] In other words, environmental problems are viewed from the front end, before pollution is generated, instead of from behind, when adequate treatment may be too late, too costly, or simply impossible. [|**208**] **[*750]** Despite the seeming obviousness of this idea, pollution prevention was hailed as //the// novel innovation in environmental policy in the late 1980s. In its twentieth annual report, the Council on Environmental Quality wrote that "the term 'pollution prevention' may well become the hallmark of environmental quality in the 1990s and beyond," [|**209**] and similar claims were made by the Environmental Protection Agency. [|**210**] Yet, despite its intuitive, practical, and economic attractiveness, pollution prevention remains on the outskirts of environmental law. Congress gave a brief nod to the idea in 1990 in a short and mainly hortatory measure shoehorned into that year's omnibus budget reconciliation act. [|**211**] The EPA has also acted to implement some preventive approaches, [|**212**] but the magnitude of its efforts pale before the agency's rhetorical devotion to the idea. [|**213**] The disappointments of the pollution prevention movement illustrate both the persistence of traditional end-of-the-pipe conceptions of environmental problems and the difficulty of altering the initial premises of social reforms once they crystalize into legislation. Like it or not, we must deal with a system of environmental law that looks at pollution through the back end of the cycle. This approach seemed entirely sensible in the early 1970s when images of smokestacks and discharge pipes visibly portrayed the problems of pollution. Our faith in technological fixes to technological problems was at that time defined by the Apollo 11 landing, not the Challenger explosion. With billions of dollars at stake and more than twenty years of adjustments to the original system, maintenance of that system, with all its flaws, is by far the preferred alternative to thoroughgoing reform for most of the system's participants. In this way, the erroneous assumptions of 1972 become the institutionalized truths of 1995. The legislation that emerged in the early 1970s to eliminate pollution "in our lifetimes" has in fact created a system wedded to fundamentally mistaken ideas. Unfortunately, few people have an interest in changing that system because **[*751]** it has evolved into the background reality around which other decisions are made. The price of significant change is simply too high, and the original structures and assumptions of the system remain largely unchallenged. In short, by preserving the structures and assumptions of our original environmental legislation, we maintain a system that both legitimizes "pollution" as the article of Environmental Law K

regulation and rejects alternative approaches. We have legitimized pollution through the very laws that were intended to eliminate it. VII. Conclusion This Article is intended to introduce a new context for understanding the conceptual disarray and broken promises that characterize current American environmental law. Drawing on research in psychology, anthropology, and media studies, the Article exposes parallels between the seemingly rational, deliberative procedures of modern lawmaking and the seemingly irrational, reflexive rituals of ceremonial scapegoating. Seen in this light, environmental lawmaking may be better understood as a //cultural// phenomenon than as merely a legal one. In making these observations, this Article has no pretensions of presenting an all-encompassing paradigm for unravelling the origins and purposes of environmental law. That subject is far too massive and is influenced by too many other factors to expect a single model to unlock all of its mysteries. Nor is this Article intended to support a simplistic idea that environmental laws merely represent symbolic gestures by misinformed policymakers and, as such, deserve little serious attention. On the contrary, by presenting a new model for understanding environmental law, this Article challenges us to treat the subject with even greater reflection. __If we wish our laws to respond to social problems in productive ways, we need to know as much as possible about why our earlier efforts failed__. Environmental lawmaking, like most important human endeavors, often boils down to a process of trial and error. The better we understand the errors, the better we can devise solutions.