Abstract
A great deal of environmental law, encompassing a wide variety of regulatory approaches , addresses physical or spatial spillovers. But spillovers can cross temporal boundaries as well as physical ones. The paper explores uses of land that deliver present benefits but entail residual risks after the cessation of the beneficial use. Paradigmatic cases include sites associated with natural resource extraction such as mining or oil and gas drilling, as well as landfills or other waste sites. The environmental harms that arise on such sites can be thought of as temporal spillovers to the extent that the actor reaping the benefits of some productive activity does not also bear the costs of remediation. Unlike physical or spatial spillovers, temporal spillovers have not received a great deal of attention from law-and-economics scholars, yet they present a serious challenge for policy makers because they are difficult to internalize. This difficulty can itself induce actors to employ temporal spillovers to shed costs. And unlike contemporaneous spillovers, temporal spillovers pose a challenge of political economy because harms may not materialize within a timeframe relevant to political elections. The paper surveys existing and proposed approaches for addressing certain forms of temporal spillover.
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Notes
- 1.
- 2.
“One party’s action will be said to have an external effect—or to create an externality—if it influences, or may influence with some probability, the well-being of another person, in comparison to some standard of reference.” Shavell 2004, p. 77.
- 3.
Stoebuck and Whitman 2000, 4.1–4.6.
- 4.
See, e.g., Brokaw v. Fairchild, 237 N.Y.S. 6 (1929) (disallowing life tenant from replacing townhouse with apartment building, even when opponents’ interest would vest only if the life tenant outlived his four-year-old child and died without issue).
- 5.
See Melms v. Pabst Brewing Co., 104 Wis. 7 (1899) (“it was early held in the United State that … the cutting of timber … to clear up land for cultivation … as not waste, although such acts would clearly have been waste in England”).
- 6.
See Brokaw v. Fairchild, supra note.
- 7.
- 8.
It is no secret that drivers tend to treat rental cars with less care than vehicles they own, for example, yet well-managed rental car companies remain profitable. Dunham 2003.
- 9.
Ellickson 1993, p. 1368.
- 10.
For an overview see Laitos and Westfall 1987, pp. 9–19.
- 11.
Epstein 1986, p. 695.
- 12.
Shoked 2014, p. 440–1.
- 13.
Strahilevitz 2010.
- 14.
See, e.g., Yoon 2016.
- 15.
Leshy 1987.
- 16.
Laitos 1994.
- 17.
Iannella 2014.
- 18.
Laura Skaer, Executive Director, Northwest Mining Association, testimony on “Abandoned Mined Lands: Innovative Solutions for Restoring the Environment, Improving Safety and Creating Jobs,” at hearing before the House Subcommittee on Energy and Mineral Resources, House Committee of Natural Resources, July 14, 2011, p. 3. Skaer continues: “The abandoned mines that dot the western landscape, and the toxic tailings that accompany some of them, are a byproduct of the mineral demands of an industrial society at a time when reclamation was not required or expected.”
- 19.
High Country News [citation].
- 20.
Davis 2015.
- 21.
See Kelly 2015, p. 176: “under most circumstances, private owners will not have an incentive to divide their property excessively,” but “unlike private owners, public officials do not necessarily internalize the economic costs and benefits of dividing possessory rights.” Id., p. 189.
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Huber, B.R. (2017). Temporal Spillovers. In: Mathis, K., Huber, B. (eds) Environmental Law and Economics. Economic Analysis of Law in European Legal Scholarship, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-50932-7_2
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