10-12-2004 22:02									#241
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Kuci:

quote: Liability Under CERCLA. CERCLA imposes joint and several liability for cleaning up contamination caused by hazardous substances on four categories of responsible parties: (1) the current owner or operator of a vessel or a facility; (2) the owner or operator of a vessel or facility at the time of disposal of any hazardous substance; (3) the generators of any hazardous substances located on the site; and (4) any transporter of hazardous substances to a site the transporter selected. 42 U.S.C. sec. 9607(a)(1)- (4). Although agreements can be made to apportion liability between responsible parties, no agreement will shield any responsible party from CERCLA liability. CERCLA also imposed liability retroactively to contamination predating the act's passage in 1980. Defenses to Liability Under CERCLA. CERCLA is a strict liability statute. The only defenses allowed are: act of god, act of war, or, in some limited circumstances, an act of a third party. 42 U.S.C. sec. 9607(b). The third party defense includes protection for innocent landowners, provided they had no reason to know of the existence of hazardous substances and made all "appropriate inquiry into the previous owner and uses of the property consistent with good commercial or customary practice." 42 U.S.C. sec. 9601(35).

	10-12-2004 22:04									#242
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quote: Originally posted by Kuciwalker Huh? If you are given specific authorization to do something by Congress, how can you be sued?

I don't know about the US but in Canada we have all sorts of absolute liability laws. You could do everything perfectly legally and exceed all standards BUT if somehow (say an eartquake) you had a spill or created debris, you could face ABSOLUTE LIABILITY up to prescribed limits.

In Canadian offshore oil operations the absolute liability level is $30 million and this require NO PROOF of ANY fault or negligence. . . NONE. IN theory a terrorist could fire a missile into our platform and you would still be liable.

	10-12-2004 22:04									#243
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quote: Originally posted by Kuciwalker ... What's the justification there? The only rational one I can see is if the court says that whoever issued the permit doesn't have the power to issue it (i.e. Congress isn't allowed to do X, so it can't issue a permit to do X).

Justification? Public Policy.

Congress passed CERCLA in 1980, and revised it in 1984. The original passage was heavily influenced by Love Canal (so, in essence, it was a somewhat knee-jerk response to something that had been ignored for too long).

SCOTUS upheld it.

-Arrian

	10-12-2004 22:05									#244
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quote: Originally posted by Kuciwalker quote: Originally posted by Flubber Actually you are wrong. Parties get successfully sued all the time for matters where they are in violation of no permit or regulation. Do they get sued for doing exactly what the permit says they are allowed to do?

YES

	10-12-2004 22:06									#245
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Arrian, that's an explicit law saying that you can't pollute (or that you have to clean it up). As such, the reason you can sue is because that law overrides any permits granted by someone other than Congress - meaning my point stands.

(btw, the part about it applying prior seems unconstitutional)

	10-12-2004 22:08									#246
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quote: Originally posted by Flubber I don't know about the US but in Canada we have all sorts of absolute liability laws. You could do everything perfectly legally and exceed all standards BUT if somehow (say an eartquake) you had a spill or created debris, you could face ABSOLUTE LIABILITY up to prescribed limits. In Canadian offshore oil operations the absolute liability level is $30 million and this require NO PROOF of ANY fault or negligence. . . NONE. IN theory a terrorist could fire a missile into our platform and you would still be liable.

But if your parliament gave explicit authorization to do whatever it was doing, then it clearly wouldn't be liable. Such authorization is basically a law saying "you can't be sued for doing this".

	10-12-2004 22:13									#247
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quote: Originally posted by Kuciwalker Arrian, that's an explicit law saying that you can't pollute (or that you have to clean it up). As such, the reason you can sue is because that law overrides any permits granted by someone other than Congress - meaning my point stands. (btw, the part about it applying prior seems unconstitutional)

Nope your point is still wrong. Outside of absolute liability statutes, people get sued all the time for stuff done precisely as permitted


1. Construction that redirects a water flow in an unexpected manner ( perhaps due to unexpected rains)-- cases where people are liable for damages to those flooded

2. Hockey games played in approved rinks and in accordance with all the rules of the game, but there have been successful flying puck liability cases

3. Construction again-- you may get a permit to blast and do it precisely correctly but still be liable for nearby damage foundations

4. Offshore seismic operations-- Even if you get all the premits and take every precaution possible, you still end up paying for any fishing gear that gets damage.

5. Oil storage-- you can meet every regulation and would still be liable for any seepage to adjoining properties

etc etc etc

	10-12-2004 22:14									#248
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Anyway, that's a peculiarity of our system, and it doesn't make any sense. If you have a specific permit from Congress or your Parliament, it makes no sense that you can be sued.

	10-12-2004 22:16									#249
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quote: Originally posted by Kuciwalker If that's the most cost-effective way to achieve our ends, yes.

Of course it's not. Unless you don't have the power to tax, and you do.

	10-12-2004 22:16									#250
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Unless enforcing such a tax would cost more than it's worth.

	10-12-2004 22:19									#251
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quote: Originally posted by Kuciwalker Arrian, that's an explicit law saying that you can't pollute (or that you have to clean it up). As such, the reason you can sue is because that law overrides any permits granted by someone other than Congress - meaning my point stands. (btw, the part about it applying prior seems unconstitutional)

On the first part - whatever. I'm just trying to tell you how it works.

That was the basis for the constitutional challenge, IIRC.

-Arrian

	10-12-2004 22:20									#252
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quote: Originally posted by Arrian 1) Crashing the economy 2) Poisoning the relationship between government and business The weakness in my plan at this point is actually corporate flight overseas. -Arrian

What we really need to do is find a way to stop being held hostage to corporations. You want to pay them to do business here. I'm very much opposed to that. If that's the best way that capitalism to work it aint worth a ****. Just another reason to oppose it.

	10-12-2004 22:21									#253
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quote: Originally posted by Kuciwalker But if your parliament gave explicit authorization to do whatever it was doing, then it clearly wouldn't be liable. Such authorization is basically a law saying "you can't be sued for doing this".

I don't believe our parliament ever gives such an authorization and furthermore I don't think EITHER a federal or a provincial body alone could effectively give such an authorization due to the constitutional division of powers . Provincial environmental rules may apply generally to land while federal rules would apply to oceans and "navigable waters" (pretty much any stream any boat could traverse). Any such law could not bar liability from accruing from a statute passed by the other level of government within a field of its jurisdiction.

So I find your example to be unlikely and impractical. Do you have an example of the US or Canada giving soemone carte blanche with respect the liability. The only scenario where it makes any sense to me would be the US if it were something to do with waging war

	10-12-2004 22:22									#254
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quote: Originally posted by Kuciwalker Unless enforcing such a tax would cost more than it's worth.

Stick to one side of the argument for Christ sake. Do you believe in the neoclassical model for polution control or not?

	10-12-2004 22:23									#255
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(Aren't your federal laws superior to provincial ones?)

My argument would be that a permit to do something is such authorization.

	10-12-2004 22:23									#256
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quote: Originally posted by Kidicious Stick to one side of the argument for Christ sake. Do you believe in the neoclassical model for polution control or not?

I believe in doing what works.

	10-12-2004 22:26									#257
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By the way, Kuci, a major reason I have the job that I currently hold is the basic disconnect between doing something that is totally legal, and then being held liable for the results of that.

Insurance applies only to accidents (if you go on what the policies actually SAY, anyway). Therefore, if you discharge XYZ chemical pursuant to you permit, and this results in bodily injury or property damage... how is that covered? Clearly you meant to discharge the pollutants. Ah, but did you intend the damage? Open to question, to say the least!

And the war has been waged in courtrooms for decades now. In many, many, many cases, courts have decided for the insured over the insurer for what seems to me primarily public policy reasons. Cleanup is required, the insurance company has money, whereas maybe the insured doesn't. Hmm.... COVERED!

-Arrian

	10-12-2004 22:27									#258
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quote: Originally posted by Flubber I just see capitalism as being the system most likely to come up with better and better measures to deal with pollution. Now a person knows that if they can come up with innovations that can reduce emissions by 25% this could be an immensely profitable product. Faced with stiffening regulations, businesses that can innovate will do well. One of my big complaints with communism was the lack of individual incentives or even business unit incentives to innovate. If I am the manager of Factory 12 and production and pollution are within state-approved norms, what incentive is there to design that device?? If I did design it, no doubt the state would decide to put the first ones near the capital. Heck the state might even order me out of my comfortable rural lifestyle and order me to go around the world installing these things. I rarely see my wife and child, my factory is now being run by the nephew of the Administrator of Political Unit 18 and I see no benefit at all except the knowledge that the air is a little cleaner ( and wil be in my hometown when they get around to the installation there. Capitalism has a problem in that a new device may be considered proprietary and therefore not widely distributed immediately but at least the device stands a better chance of getting built.

Not really. There is already a lot of technology that isn't implemented because of someone's vested interest. Communism will free those technologies so that we can all benefit from them.

	10-12-2004 22:27									#259
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quote: Originally posted by Kuciwalker Anyway, that's a peculiarity of our system, and it doesn't make any sense. If you have a specific permit from Congress or your Parliament, it makes no sense that you can be sued.

I disagree. The theory is that the damage to neighbors can't occur but for your operation. Even if you do everything non-negligently, damage is possible, so you will pay for that damage. Its just a cost of doing business. If I store oil, I am responsible for any seepage period.


I am still curious as to when these explicit authoriations come about. Our parliament don't give them ( to my knowledge)-- ANY industrial activity is told to apply to the appropriate departments and comply with all relevant laws

	10-12-2004 22:28									#260
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quote: Not really. There is already a lot of technology that isn't implemented because of someone's vested interest. Communism will free those technologies so that we can all benefit from them.

But will communism generate more of those technologies, that's the real question. I an skeptical that it would. Not without incentives of some kind!

-Arrian

	10-12-2004 22:31									#261
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quote: I disagree. The theory is that the damage to neighbors can't occur but for your operation. Even if you do everything non-negligently, damage is possible, so you will pay for that damage. Its just a cost of doing business. If I store oil, I am responsible for any seepage period.

BINGO. And, by the way, if everyone agreed it would be music to my company's ears. Because many people don't see it that way. They see it this way:

I did what I was told was ok to do! Now they want money from me! What the hell?! Hey, I paid insurance premiums for years and years, they should pay for this!

-Arrian

	10-12-2004 22:32									#262
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quote: Originally posted by Flubber Actually I feel FABULOUS. I have a meeting later and my express purpose is to try to negotiate as much PROFIT as I can from our planned arrangement. and GASP I think the other side plans to do the same thing. Now I haven't yet figured out a way to profit more by polluting more on this particular deal so I think I'll just pour some oil on the street to compensate for my failing.

So you admit that your bottom line is to make profit. You have no true interest in benefiting society.

	10-12-2004 22:32									#263
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quote: But will communism generate more of those technologies, that's the real question. I an skeptical that it would. Not without incentives of some kind!

Government corporations produce technologies all the time, including here. Why not in "communism"?

	10-12-2004 22:34									#264
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quote: Originally posted by Kuciwalker (Aren't your federal laws superior to provincial ones?)

On some things yes and on some things no. That answer stands if you mean superior as in "better" or "stronger" OR if you mean that they superseded provincial law.

depending on the jurisdiction, the provinces can vary widely in their laws so they can be more or less stringent than the feds in areas where jurisdictions overlap.

As for jursidictions , while there is much overlap there are some clear heads of federal and some of provincial jurisdiction. A federal law in an area of provincial jurisdiction would be ultra vires and of nor force and effect

quote: Originally posted by Kuciwalker My argument would be that a permit to do something is such authorization.

A permit is simply a government agency approving an activity. It in no way relieve that permit-holder from their liabilities whether they be statutory or at common law.

As I said, I don't know of any permit that gives people exemptions from liability and again would ask for an example

	10-12-2004 22:36									#265
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quote: Originally posted by Arrian But will communism generate more of those technologies, that's the real question. I an skeptical that it would. Not without incentives of some kind! -Arrian

There's no point to developing technologies that can help if they don't help. Yes, you can develope technology with a communist system, and they will even be implemented for a better society.

	10-12-2004 22:36									#266
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Az,

Two things:

1) Is the return on government research as good as the return on the free market's research? I honestly don't know the answer (actually, I doubt there is a definite answer); and

2) To what degree is the research driven by people who know they can leave after a while and nab a lucrative job at some private company's R&D lab?

-Arrian

	10-12-2004 22:38									#267
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quote: Originally posted by Kidicious There's no point to developing technologies that can help if they don't help. Yes, you can develope technology with a communist system, and they will even be implemented for a better society.

That's the dream, anyway. I'm rather uncertain that it would work out as well as you think.

-Arrian

	10-12-2004 22:39									#268
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Arrian,

The wonderfull thing is that you can basically develope as much research as you want to if you just don't leave it up to the free market, and you actually take measures to do so.

	10-12-2004 22:41									#269
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quote: Originally posted by Azazel quote: But will communism generate more of those technologies, that's the real question. I an skeptical that it would. Not without incentives of some kind! Government corporations produce technologies all the time, including here. Why not in "communism"?

I don't say a communist system won't produce ANY innovation, I just think it will be much less.

The government employees that create things . . . can they get bonuses, advancement to higher paying jobs or lucrative private offers ? If they can, they are still in a capitalist society despite working for the government.

The communist society I am considering is one in which the MOST an innovator might get is the respect of their peers since financial incentives are not permitted as they might create an upper class

	10-12-2004 22:41									#270
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Cuba is now one of the leading inovators in cancer fighting drugs. And they are providing them to the rest of the world cheap. Unfortunately for us in the U.S., the embargo makes it difficult for us to get them. U.S. companies cannot pay for the drugs, so they have to get permission from the U.S. to ship an amount of goods equal to the monetary worth of the drug.

http://www.wired.com/news/medtech/0,1286,64245,00.html