Ghostbusters,[1] the phenomenally successful[2] Bill Murray/Harold Ramis/Dan Ackroyd comedy is generally considered to be an amusing takeoff on horror films of the thirties and forties, a kid's movie, or a satire on academia, intellectuals, city government, yuppies, tax professionals, and apathetic New Yorkers.[3] What no one has con sidered this movie to be is a thoughtful introduction to environmental law and policy, suitable for discussion in a law school class,[4] or a serious examination of the competing interests in the environmental regulation debate. Yet, the film's premise is that ghosts, like television advertising, marshmallows, and non-biodegradable packaging materials, can be classed as pollutants—messy, disruptive, loud, dangerous entities that need to be rounded up effectively and confined forever.[5] Further, a government's inability to admit that an environmental danger, represented here by psychic pollutants, might exist[6] increases the likelihood that such a danger may damage the environment, just as the government's unwillingness to recognize the true dangers of the pollutants at Love Canal put nearby inhabi tants at risk.[7] Thus, the film contends that the traditional reaction of the independent-thinking American to a danger which government is unable or unwilling to respond to is a kind of justified vigilantism. Too much government, like too much dependence on government, creates an environment suitable for disaster.
Discussion of this theme serves as an entertaining and stimulating entrée into the world of environmental law.[8] Unlike such films as Incident at Dark River, The urge to make disposal and storage sites as safe as possible delays action indefinitely, as various special interest groups go through a political, social, and legal dance.[19] Further, the enormity of the problem posed in Ghostbusters—the unanticipated eruption of an overwhelming threat for which neither academia nor government is prepared—makes it a parable for Judgment Day, through the actions of humankind creating the architecturally elaborate portal through which psychic entities enter the material world. Faced with such technologically facilitated, thoughtlessly induced catastrophe,[20] only through independent action can traditionally individualistic Yankees save the world.
This Essay examines the law and policy likely to be invoked when governments and individuals face an unexpected and unde fined environmental threat. Who decides which procedures will be followed to meet that threat? By what process? Who determines whether those procedures should be abandoned in favor of another approach? Should competing regulatory schemes be allowed to muddy the waters, perhaps ultimately preventing any action at all if the parties involved make the wrong choice of forum or law? What course of action might various parties take to enjoin the Ghostbusters' activities? Which actions might be successful and why? The plethora of choices and arguments over potential jurisdiction[2]1 in Environmental Protection Agency v. Peter Venkman et al., d/b/a Ghostbusters and related cases demonstrate the confusion in which current environmental law can be mired.[22] As the following sections of this Essay demonstrate, negotiating the forest of environmental orders, regulations, decisions, and statutes for anyone involved can be lengthy and complex. Each Legislative Act closes certain legal avenues as it opens others. Part II discusses the parties and issues involved in the film. This is followed by Part III which reviews the new environmental problems unique to Ghostbusters. Part IV then highlights causation, liability and remedy issues, and Part V follows with an overview of regulations to prevent environmental accidents. After Part VI evaluates how emergency problems are handled, Part VII discusses the symbolic pollution presented in Ghostbusters II. This essay concludes by discussing the distrust of government which results in the vigilante ghostbusting, and more generally, vigilante action in the environmental arena.
Early in the film, the three future Ghostbusters reveal their philosophies. Peter Venkman (Bill Murray), the con artist of the group, wants success, almost at any price. He is a self-promoting entrepreneur[23] who we fear would cheerfully create environmental havoc,[24] and then charm[25] the government into hiring him to clean it up for an exorbitant fee.[26] Ray Stantz (Dan Ackroyd), is the enthusiastic doer, who sees a problem and sets out to solve it. On hearing of an oil spill, he's the one most likely to jump into his Jeep to race down to the beach to clean sludge off ducks. Like his namesake,[27] Egon Spengler (Harold Ramis) is the intellectual who buries himself in his work. As he tells Janine, the Ghostbusters' receptionist, his hobbies are collecting spores, molds, and fungus.[28] When she flirtatiously tells him that she likes to read, he barks back that "print is dead."[29] For him, much of the disruption that tech nology brings is inevitable; the best course is to understand it, control what one can, and be philosophical about the rest. Such an attitude is useful considering the fate that befalls these heroes in the opening minutes of the film.
After the University tosses the Ghostbusters off the campus for what it considers highly questionable scientific practices,[30] the three psychic investigators decide to make use of their specialized knowledge by becoming professional ghostbusters, psychic investigators who will rid clients of pesky poltergeists for a hefty fee.[31] They acquire a dilapidated former fire station which they convert into a storage facility, and an old, environmentally unsafe, ambulance,[32] which they decorate with sirens, lights, and "Fatso," their famous "No ghosts allowed" emblem.[33] Their ghost-capturing equipment consists of unlicensed nuclear accelerators, which they carry on their backs[34] and operate by focussing the emitted beams of radioactive energy at the disruptive entities. None of the Ghostbusters has much experience with this technology, although Egon points out that they should never cross the beams since that would result in a major explosion, to which Venkman responds, "Important safety tip." Once they capture ghosts in their traps, they imprison them in their storage facility. Disposal and storage become intertwined since the Ghostbusters have no offsite storage plans.
Fully equipped, the Ghostbusters embark on their mission to rid the world of ghosts entering the physical plane through what Egon defines as "Spook Central," an apartment building on Central Park, and a unique example of point-source pollution.
The Ghostbuster facility is housed in a former fire station, in which the Ghostbusters also reside.[35] The surrounding area seems to have a mixture of small businesses and warehouses.[36] One may well ask whether the area is zoned for uses that include waste storage facilities. If not, the city might object that the facility is a public nuisance. The neighbors may argue that the Ghostbusters' facility is a private nuisance[37] due to their strange activities including the comings and goings of various employees and visitors, the sirens on the Ghostbusters vehicle,[38] and the oddity of some of their clientele.[39]
Many, if not all, of the public nuisance issues would have been appropriately explored through hearing and licensing procedures set forth in relevant agency regulations.[40] Another issue, which a hearing may examine, is the wisdom of locating a facility in such a densely populated and economically depressed area.[41] Further, various experts could have explored the nature of the waste to be stored in the facility. Given its sliminess, is the waste more like liquid waste or more like solid waste? Does contact with the radioactive streams emitted by the "positron colliders" make it gaseous? Can it be stabilized in one form sufficiently to be stored indefinitely? For Resource Conservation and Recovery Act (RCRA) purposes, this question might be irrelevant.[42] If another statute applies, these ques tions may need resolution for a determination of agency jurisdiction.
For the local inhabitants, a hearing on this private nuisance is the obvious first step. One of their strategies might be to take the position that the noise and disruption substantially limit the private enjoyment of their property.[43] These concerns are discussed in later sections of this article.[44] Note, however, that one of the unsatisfactory characteristics of the nuisance suit is its likelihood of failure.[45]
One of the threshold questions in determining which government agency, if any, has jurisdiction over the Ghostbusters' activities is deciding the nature of the waste.[46] The factors that complicate this determination are (1) the initial lack of evidence that the waste exists; (2) the continued reluctance of the EPA (represented by Walter Peck) to admit that it exists; and (3) the mixed nature of the waste. The Ghostbusters implicitly demonstrate their recognition of these factors by bypassing any licensing procedures, an act that symbolizes their lack of respect for authority. We ultimately share this lack of respect after meeting Peck and also share the Ghostbusters' impatience with the rules that authority imposes as the price for living under its protection. Because the authority demonstrates its inability to identify and protect the community from the spirit world's dangers, under the Ghostbusters' theory, government loses the respect necessary to demand cooperation and obedience.
The differences among the three Ghostbusters are nowhere more evident than in their initial reactions to locating their facility in the abandoned firehouse. True to his belief that he should be the only individual profiting outrageously from any likely investment possibility, Venkman objects that "it's a little pricey for a unique fixer-upper opportunity." Spengler is more direct: "I think this building should be condemned. There's serious metal fatigue in all the load-bearing members; the wiring is substandard; it's completely inadequate for our power needs, and the neighborhood is like a demilitarized zone."[47] But as Stantz cheerfully slides into view, he pointlessly shouts, "Hey, does this pole still work?"
Based on Spengler's knowledge of engineering, the three already have notice that their place of business is less than adequate for its intended use; although perhaps not badly located. Although the wiring may have been updated by the time they open for business, the new owners do not appear to have corrected any structural problems. Nor do any backup systems appear available for the storage facility.[48] Thus, when Peck obtains a court order[49] to shut down electrical power to the Ghostbusters' grid, some of the resulting destruction may be due to the structural weakness of the building and storage facility. However, exactly how much damage is attributable to that weakness might be difficult to determine after the explosion.[50]
One of the objections that either a governmental regulatory body or the Ghostbusters' neighbors might raise is the Ghostbusters' documented lack of familiarity with the equipment they use so blithely to combat the psychic plague. In the elevator of a ghost-infested hotel, while standing under a prominently displayed "No Smoking" sign, Venkman points out that each of them is "wearing an unlicensed nuclear accelerator on his back."[51] Stantz responds: "You know, it's just occurred to me that we've never had a completely successful test of this equipment."[52]
Like other disaster victims, the hotel manager is dismayed at the unanticipatedly high cost of capturing the "free floating apparition or full roaming vapor." Presumably envisioning the reaction of the insurance company[53] to a claim for exorcism and repair of the building and contents, he tells the trio, "I had no idea it would be so much. I won't pay it." "That's okay," responds Stantz, "We'll just let him out right over here."[54] In a panic the man quickly agrees to their terms.
In addition to lacking experience, the Ghostbusters also fail to follow elementary safety precautions, presumably expecting a certain amount of deference from clients as well as the government in regard to their methods. All of them, as well as their newest recruit, Winston Zeddemore (Ernie Hudson), smoke profusely in the storage facility, which is festooned with "caution" and "danger" signs. Venkman, clearly more interested in money than in the service they are selling, downplays the extent of their problems, even the existence of ghosts, until they confront him physically. Nor is Zeddemore a believer at first.[55] During his job interview, Janine asks him in a bored tone whether he believes in "UFOs, astral projections, mental telepathy, ESP, clairvoyance, spirit photography, telekinetic movement, full trance mediums, the Loch Ness Monster and the theory of Atlantis." Responds a practical Winston, "Uh . . . if there's a steady paycheck in it, I'll believe anything you say." Yet Winston, the intelligent and observant non-scientist, is the first Ghostbuster to identify the cause of the problem: the return of the dead and the coming of Judgment Day. Like the heroes of Incident at Dark River,[5]6 Silkwood,[5]7 and The China Syndrome,[58] he represents the ordinary citizen victim who finally notices the signs of environmental catastrophe. Basing his analysis on common sense and a general knowledge of The Bible he calls them by their rightful name, uninfluenced by politics or special interests.
While causation in a case of environmental harm is difficult to prove, a negligent act is much easier to identify. For the Ghostbusters' neighbors, several tort theories might offer some relief from the noise as well as the possible danger.[59]
The immediate cause of the release of pollutants into the local atmosphere (not to mention all of New York City) is Peck's order to shut down the electric grid that confines the psychic wastes. However, but for the Ghostbusters' act in setting up their hazardous waste facility, and their failure to comply with EPA regulations, that release would not have occurred. Opening such a facility in a heavily populated area is a dubious environmental decision.[60] Further, the Ghostbusters are in a unique position to understand the danger:
The distinction between public and private nuisance is a difficult one to determine. Among the questions the neighbors would have to decide are whether the Ghostbusters operation is inherently a nuisance because of its noise, the increased traffic, and the nature of the business conducted, or whether it only becomes a nuisance after the release of the psychic wastes. If they take the former position, arguably only a few residents are affected, and the business may qualify as a private nuisance. Further, of those residents, it may be that only property owners have standing to challenge the Ghostbusters' use of their property.[62] Objecting neighbors would have to demonstrate that the noise, traffic, and general disruption in the area substantially limit their quiet enjoyment of their property. Once the release takes place however, it affects the entire city and becomes a public nuisance. In the first case, the neighbors would have to sue; in the latter the city officials are charged with bringing the suit against the Ghostbusters, assuming they are liable for the disaster.[63] Based on the subsequent actions of a government employee, Ghostbuster liability is by no means certain.
The neighbors could have tried to obtain an injunction against the operation of the facility before it opened, charging that it is an inherently dangerous operation. However, we have no evidence that they knew of the Ghostbusters' plans; we have no proof that the trio had informed their real estate agent of their intentions either.
Whether a nuisance action could succeed after the release is also debatable. "It can be argued that the potential for future harm has been established by the release, and the facility has shown itself to be sufficiently dangerous and the controls against risk sufficiently tenuous to justify a permanent injunction against future operation."[65] The Ghostbusters' defense would, of course, be that Peck caused the release through an independent and ill-advised action, and that nothing in the design of the Ghostbusters' facility prevents its safe operation absent bureaucratic stupidity. They would need to demonstrate, however, that shutting down the grid could not be accomplished accidentally, for example through an electrical power failure.[66]
While Venkman and Zeddemore may not be convinced of the existence of a ghostly plague at first, the media eagerly covers the Ghostbusters' activities. The clients who hire the Ghostbusters seem eager for their service.[67] The doubters are the EPA, and to some extent the municipal government, which is uncertain what to believe.[68] Like many people in positions of authority, Peck tries to apply existing law to what he judges to be an unexceptional situation; the failure of the Ghostbusters to adhere to perfectly adequate environmental regulations. His analysis is correct as far as he knows, and his legitimate concerns are the health and safety of the local population. Unfortunately, the ghostly plague presents an example of an ecological crisis that moves far more quickly than the ability of the affected regulatory body to respond to it. To that extent, it demonstrates the inadequacy of existing environmental law and policy.
The question of new environmental threats is an interesting and intricate one. Through what mechanisms do and should we recognize previously unconsidered ecological problems? At what point do we seek government regulation of the technology used to combat these problems? And how much regulation is too much given the possibility that no one, including the regulators, understands the extent of the problem?[69]
In the Ghostbusters' case, psychokinetic energy is a previously unrecognized threat to health and welfare. Its effects are also rapidly increasing. So, the time most government agencies require to organize, carry out, and report on such a threat is likely to delay necessary remedial action until well after the problem reaches crisis proportions. Indeed, the threat begins overwhelming the Ghostbusters to the extent that they begin considering opening another storage facility because the current facility is likely to break down as a result of the increased ghost population it confines.[70]
The debate between those who deny the existence or extent of an environmental problem and those who recognize it, and may tend to overstate it, is a classic and recurring debate in environmental law and policy. For example, at Love Canal, the inhabitants had great difficulty convincing the government and the public that the problem was as monumental as it later proved to be.[71] Even when government and the public are essentially in agreement, the argument is frequently over the extent of the pollution and the financial responsibility of the polluters. The debate can drag on for years and leave bitter memories as well as economic and personal hardship.
Ghostly encounters increased drastically within a few weeks of starting their business, and the Ghostbusters increased their business a thousand-fold, as a result. The Ghostbusters quickly become objects of media adoration, thanks to both Venkman's remarkable huckstering ability and the successful capture of various malevolent entities. Their fame leads to a visit from Walter Peck.[76] Peck neither shows credentials or identifies himself, though he behaves like a bureaucrat, demands to see the facility, and becomes angry when Venkman refuses to oblige. Peck's high-handed attitude clearly supports the opinion many people have about the officiousness and meddling that some government employees seem to display. Peck leaves in a fury after trading insults with Venkman.
Venkman's independent stance shows the reluctance of individuals and newly emerging companies in unregulated industries to cooperate with a government they perceive as too bureaucratic, hysterical, expensive, demanding, and obsessed with detail.[77] Unfor tunately, the Ghostbusters do not have a lawyer to tell them that refusing to cooperate with a government official, while it might be legally justified in some cases, is often a tactical error. Venkman may be (incorrectly)[78] relying on Peck's failure to notify him of the inspection to justify denying Peck's request. While the EPA generally takes the position that a warrant is required, inspection may be unannounced. In Dow Chemical Co. v. United States,[7]9 the Supreme Court held that other methods of acquiring information, such as aerial photography, are acceptable in order for the EPA to verify compliance.[80] A safer position for the Ghostbusters to take would be to question Peck's authority to inspect, arguing the EPA lacks jurisdiction. Validation of this position would come, if ever, only after expensive and tedious litigation. One option, however, might be to explore whether the EPA lacks jurisdiction based on its failure to designate the waste as hazardous under the appropriate statutory definition.[81]
The initial Venkman/Peck interview poses some interesting environmental law and policy questions. What environmental statutes, if any, have the Ghostbusters violated? What bases can Peck advance for the EPA's right to regulate the Ghostbusters' activities? Although he doesn't know about the unlicensed nuclear accelerators, Peck believes that some type of harmful waste is being generated and/or stored on the premises.[82] Further, he suspects the Ghostbusters are creating the waste themselves, rather than collecting it from the environment. If pressed for legal justification to intervene he would be likely to point, for example, to the Low Level Radioactive Waste Act (LLRWA),[83] as well as statutes regulating the disposal of high level radioactive waste.[84]
The LLRWA sets forth extremely specific terms under which sites must be proposed, evaluated, and chosen. It also mandates environmental impact statements,[85] which the Ghostbusters could not have prepared since they did not notify any agency of their activities. Additionally, the LLRWA guidelines require that the waste being stored, and the disposal site, be structurally stable.[86] Apparently the psychic waste being stored does not meet Class B or C waste guidelines,[87] nor does it seem to have the minimum stability required by any other class. As we see on Peck's second visit to the facility, it is neither liquid nor solid, and if released will likely ignite or emit toxic vapors.[88] Furthermore, storage is likely to be advisable not for 100 years, as with Class A and B wastes,[89] but forever. However, under RCRA, the government need only show that the waste is hazardous within the statutory definition. The EPA might prefer to exercise this option for this particular case.[90]
While the LLRWA does not address the particular nature of psychic waste directly, such waste clearly seems dangerous to human health and safety. As a practical matter, therefore, those believing in this waste may demand some governmental agency to regulate their disposal. Taking the position that the LLRWA does not apply may be intellectually justifiable; but such a stand will only delay regulation.
Inarguably the use of radioactive emissions to capture ghosts brings the operation under the aegis of some government agency, but which agency is an open question. The Nuclear Regulatory Commission,[91] rather than the EPA, regulates the disposal of nuclear waste. However, states also have some jurisdiction in this area.[92] Peck may not have any authority to demand access to inspect the facility, yet someone may have authorized him to investigate. In addition, New York is not a compact state,[93] so that whatever disposal mechanisms are decided upon are likely to bind the inhabitants and the governments for many years. Yet, conspicuously absent from the Ghostbusters' confrontations with governmental authorities are the State of New York representatives; although individual states have the authority to set up hazardous waste programs according to guidelines set out by the federal EPA guidelines.[94]
Further, as Egon tells his colleagues, the disposal unit that the Ghostbusters are using is filling up quickly due to ever-increasing levels of psychic activity.[95] Although they discuss opening another storage facility, they probably should act quickly to obtain additional disposal units or franchise the operation somehow.[96] Thus, time is of the essence, both in dealing with the environmental problem and in getting whatever licenses and permissions that are required to comply with the federal regulations.[97] Yet we know that environmental siting decisions take years to complete[98] and we also know that the Ghostbusters have a matter of days or weeks, not years, to deal with the pollution problems created by psychic waste.
Peck's first visit identifies several specific concerns in which one can discern the basis for a Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.[99] showing. "I'm curious about what you do here," he tells Venkman, implying that the activities carried out on-site are of concern not only as a general matter but also to the neighborhood. The activities are also somewhat mysterious because they are based on an unknown technology and are intricately involved with an unknown and unrecognized hazard. One can deduce the existence of other possible hazards through an examination of the Ghostbusters' regular procedures for capturing, transporting, and disposing of psychic waste. By examining the number of agencies potentially involved in regulating such transport, we can appreciate the concerns of all parties in balancing public health concerns, private property rights, and the rights of businesses engaged in lawful commerce.
While the Ghostbusters never articulate their assumptions about the nature of the psychic waste they entrap, they clearly believe it is both physically and psychologically dangerous. Walter Peck never articulates his assumptions either. However, he clearly believes that the psychic waste, if it exists, is environmental waste, and subject to the existing federal environmental regulatory scheme. The Chevron case provides his justification for interpreting various statutes to cover the psychic waste. In Chevron, the Supreme Court held that administrative agencies must be granted discretion in determining the scope of their jurisdiction when enabling legislation is unclear and the agency determination is not inconsistent with the statute.[100]
Peck is equally concerned about the disposal methods used to contain the waste. These disposal methods fall under the EPA's mandate to regulate the use of and access to radioactive materials. Therefore, crucial to successful EPA regulation of the Ghostbusters' activities, is an as yet uncompleted legal determination that the waste being stored is of the type envisioned by an applicable statute.
At no time does the overly smug Peck indicate that an appropriate investigation has determined that the psychic entities under consideration correspond to any environmental category over which the EPA has regulatory authority. Peck may be operating on the assumption that they do. For example, he tells Venkman that he has received reports about the nature of the Ghostbusters' business that have prompted him to investigate and intervene. Thus, Peck has two possible positions to assert to intervene on behalf of the EPA. First, he may claim the EPA has jurisdiction over the entities themselves as waste referred to in the statute. Second, he may assert control over the disposal methods. If he chooses the latter, then the Ghostbusters are in violation of RCRA[101] and the Hazardous and Solid Waste Amendments of 1984 which require that hazardous waste facility operators request permits.[102] Since the Ghostbusters have not done so, they are in violation of EPA regulations and liable for civil penalties.[103] RCRA may offer more justification for Peck's later action in shutting down the facility. If he can demonstrate that the Ghostbusters' practices present imminent or substantial danger to human health or the environment, the EPA may either issue an administrative order or bring suit to shut down the operation.[104]
Once the EPA has issued a subsection (a) order, it can request "the production of relevant papers, books, and documents."[105] Furthermore, the EPA "may promulgate rules for discovery procedures."[106] Where Peck goes wrong in his handling of the Ghostbuster case is in turning off the grid before a hearing is held, rather than following proper procedure.[107] Ironically, his actions result in an immediate discharge of dangerous waste into the atmosphere; the precise result the Ghostbusters are trying to avoid.
Thus before we can subject ghostbusting activity to the strictures of EPA regulation, the EPA must be prepared to make a Chevron showing that the entities can be considered "waste" under the meaning of some relevant statute.[108]
While a Chevron showing is not necessarily difficult, justifying regulatory authority over ghostbusting storage and disposal is even easier. Peck's objections to the Ghostbusters' operation may be rooted in any number of other federal statutes, depending on how we interpret the composition of the psychic waste. Certainly, the Ghostbusters might be failing to comply with the solid and hazardous waste disposal provisions of 42 U.S.C. § 6901.[109] The radioactive "positron colliders" that the Ghostbusters use to capture their prey, and arguably some of the waste they store in their basement storage unit falls within the definition of solid waste in 42 U.S.C. § 6903:
Are the Ghostbusters in violation of the solid waste disposal statutes? The EPA has the authority to issue regulations on radiation exposure only with regard to the use of radioactive materials in "construction or land reclamation."[112] If this statute applies, the Ghostbusters must also comply with 42 U.S.C. § 6922.[113] When Venkman tells Peck that he has "no idea" how many ghosts the team has captured, he is in violation of the record keeping requirements in RCRA because records must accurately identify "the quantities of such hazardous waste generated, the constituents thereof which are significant in quantity or in potential harm to human health or the environment."[114] Additionally, the Ghostbusters are required to submit reports to the administrator of the EPA or the relevant State agency.[115]
If the Solid Waste Disposal Act is applicable, Venkman's refusal to let Peck inspect the facility and look at the company's records is clearly in violation of the act. According to section
6927:
Once Venkman refuses Peck's entry,[118] Peck's recourse is to request a compliance order after notifying the State of New York that he intends to inspect the premises.[119] Peck, as a representative of the EPA, also has the authority to order monitoring and testing of the facility.[120] Venkman's intransigence adds yet another violation to the list of infractions.
Peck returns to the Ghostbusters' facility with a Consolidated Edison (Con Ed) employee and a police officer. Peck presents a cease and desist all commerce order, a seizure of premises and chattels order, an order banning the use of utilities for unlicensed wastehandlers, and a federal entry and inspection order. Peck also accuses the Ghostbusters of "violation of half a dozen environmental regulations."[121] All present then rush to the basement where Peck waves at the impressive looking equipment and tells the Con Ed technician to shut them all down. When the Con Ed technician objects that he has never seen such a setup, Peck simply tells him to follow orders. The electrical shut-off causes an immediate explosion, releasing the psychic entities into the environment to terrorize Manhattan. Peck's second visit introduces the problem of officious and rigidly thoughtless government inference, compounded by a quasi-iatrogenic catas trophe; his cure for the environmental violations committed by the Ghostbusters is much worse than the disease.
Once Peck orders the grid turned off, the problem is exacerbated. Whose actions are most proximately related to the undesired result? Who is responsible for remediation? Where will the responsibility lie regardless of fault? Is the situation an act of (anyone's) god, and if so is the simple answer that no human being can be held legally accountable?
The escape of hazardous gaseous materials may be regulated under the Clean Air Act.[122] Peck's unilateral action may leave the EPA liable for suit by New York City residents under the Federal Tort Claims Act.[123] A successful suit would have to fall outside one of two exceptions to the federal government's waiver of immunity. The discretionary function exception, exempts the acts and omissions of a government employee "exercising due care in the execution of a statute or regulation,"[124] or specific intentional torts, such as assault, battery and false imprisonment.[125] Peck's behavior in forcing the release of the psychic waste arguably falls within the battery exception, as would Venkman's claim of malicious prosecution. However, Peck's defense to a charge of battery would be his disbelief in the existence of the waste. Since he does not credit the existence of the waste and has no personal independent knowledge of them, he lacks the mens rea of recklessness or knowledge.
How much sovereign immunity shields the agency from accusations of recklessness in causing collateral damage is another question.[126] The escaping entities run rampant through Manhattan, crashing taxicabs, causing injury, and destroying other property. As a matter of policy, should the EPA be held responsible for such damage caused by Peck's miscalculation of the existence of the harm when he has made an absolute, yet erroneous, determination that no injury is possible? Given the results of his ill-advised action, the EPA is almost certain to take the position that Peck had exceeded his authority in demanding the shutdown prior to a complete investi gation. If no psychic pollution problem exists, then he could not have had any legitimate justification for bypassing agency requirements for a hearing.
For their part, the Ghostbusters would certainly think about suing for what Venkman angrily calls "wrongful prosecution," perhaps on theories of tortious interference with business, trespassing, and perhaps even defamation or false light.[127] The latter might be a difficult win because one institution thinks so little of their methods that it revoked their grant and tossed them out into the real world.[128] They would also have to refute Peck's allegations that the ghosts they capture are really hallucinations they induce in their clients. If this is so, the EPA's authority to intervene is less obvious, although the Ghostbusters' use of radioactive materials still falls under the regulatory oversight of some governmental agency. However, New York City might be interested in allegations of fraud.
At the point of shutdown, Peck may claim to be operating under the provisions of 42 U.S.C. § 6973, which provides:
One of the Ghostbusters' remedies might be to petition a federal court for review of Peck's actions. Certainly, both the Ghostbusters and their neighbors could argue that Peck was extremely reckless in shutting down the power grid without first understanding its proper operation and use. However, both federal statutes and the Administrative Procedure Act (APA)[130] strictly limit the types of agency action open to judicial review.[131] Further, the government's response is likely to be, as Peck snaps at Venkman, that "[y]ou had your chance. You chose to insult me. Now it's my turn." The EPA's discretion to issue administrative orders or decisions is broad, and invokes the protective tradition of judicial respect for agency discretion. Venkman's opportunity to demonstrate proper use of the radioactive equipment has already passed. While government representatives ought not to be vindictive, given Venkman's animosity toward him, Peck's resentment and subsequent vengefulness is understandable.
Again, assuming that the Solid Waste Disposal Act is applicable, members of the neighborhood, or any other individual, can attempt to file suit against the EPA for Peck's abrupt shutdown of the facility on the theory that Peck should have thoroughly inspected the facility and determined how best to cease its operations rather than by simply cutting off power to the storage grid.[132] Of course, either the person bringing suit, or the Ghostbusters, are likely to have to pursue such claims under the APA, rather than under the statute specifically authorizing agency action.[133] As noted above, there might also be an action under the Federal Tort Claims Act.[134] A private nuisance claim may also be pursued by arguing negligence on the Ghostbusters' part in siting the storage facility in a ramshackle building, increasing the amount of traffic in the neighborhood, and disturbing the peace at odd hours.
The Locally Undesirable Land Use (LULU) aspect of the Ghostbusters' facility is one of the most powerful arguments the neighborhood has against it sitting in their area. However, lawyers will have to carefully investigate the zoning requirements, the procedures the Ghostbusters followed, if any, to obtain any necessary business licenses, the regulatory status of the business, and other issues discussed in this Essay in order to prevail at a hearing. The social good the company performs may also weigh against any immediate citizen objections to the storage facility's location. If the Ghostbusters' activities violate a zoning ordinance, the local authority could enjoin their activities without further investigation. However, because a fire station already existed on the site, and because the area looks fairly commercial, a finding of a violation of the ordinance is not a foregone conclusion. If the local courts were to find a violation, however, federal law might not preempt the local authority.[135]
Even if the EPA is found liable for failure to designate the waste as hazardous under the Clean Air Act, the Ghostbusters may not be absolved of liability if a court finds that they should have known of the hazardous nature of their waste and the likelihood of harm should it escape.[136] Under the Emergency Planning and Community Right-to-Know Act of 1986,[137] the community may also have a "right to know" of hazardous substances stored in the Ghostbusters' facility, if it can show that the substances appear on the EPA's list of regulated substances.[138]
Under a trespass theory, individuals or groups might also sue the Ghostbusters. While absolute liability is no longer the rule once trespass is established,[139] "conduct associated with an abnormally dangerous activity"[140] might be shown. Another difficulty for plaintiffs is the existence of physical trespass; psychic wastes may not equate with what human beings traditionally assume to be inher ently capable of the trespass action. However, "[m]any courts now hold that an entry on property by fumes or gaseous material is a trespass and actionable as such."[141]
Several strict or absolute liability theories may also offer an approach for any of the parties interested in suing the Ghostbusters. This approach can be summarized as follows: (1) the Rylands v. Fletcher[142] line of cases, under which an activity's hazardous nature is evaluated according to the nature of the activity and the location of the activity; (2) the Restatement (Second) of Torts approach, which holds that anyone carrying on an abnormally dangerous activity is strictly liable to anyone harmed by that activity (factors include the extent of the risk, the location of the activity, and the value of the operation to the general public);[143] and (3) the "Magnitude of the Risk" doctrine, under which the conduct of any sufficiently hazardous activity imposes absolute liability on the operator.[144]
While a Con Ed employee disconnects the power to the system, neither the Ghostbusters, their neighbors, nor the city is likely to sue the employee or his company. Apart from the fact that the employee is probably judgment proof, the employee is acting according to company policy in cooperation with the EPA, and has no reason to question Peck's authority to order him to assist in the operation. Further, Peck has a court order. Only someone with much greater authority and responsibility at Con Ed, or someone with authority to represent New York City could challenge Peck's decision to seek the court order or the evidence he presents to obtain it, and as a practical matter they are unlikely to do so. While the Con Ed employee is resistant, he must ultimately comply with Peck's order. The employee's inability to refuse to comply is another example of the helplessness and frustration that many people, including some civil servants and public utility employees, feel in the face of ever-increasing and seemingly petty, arbitrary, or dangerous regulatory directives.[145]
One party who is unlikely to be brought into court is "Gozer the Destructor" in any of its manifestations. As in the case of Satan, service of process on Gozer is, as a practical matter, impossible without serious loss of life.[147] Whether Gozer is entitled to due process is questionable.
The process of regulating transport of psychic phenomena is another good example of the amount of law and the number of agencies involved in hazardous waste transport. That the Ghostbusters' psychic waste may fall within the definition of "hazardous substance," as set out in applicable hazardous waste transport legis lation, seems clear from the following example:
The term "hazardous substance" means:
Under the Occupational Safety and Health Act (OSHA),[157] Congress has empowered the United States Occupational Safety and Health Administration to promulgate regulations governing the clothing and equipment to be used when working with or transporting waste on public roads.[158] The Ghostbusters' responsibility for their two employees, Winston Zeddemore and Janine, falls within the "catch-all provision" of OSHA,[159] which states: "[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."[160] In a naturally hazardous but ill-understood activity like ghostbusting, the employer cannot be allowed to escape responsibility by pleading such hazards that occur do not fall within the statute because they are not commonly known and detectable, or are generally recognized as hazards in the industry that the employer should be aware of. Moreover, in a case in which specific statutes do not address the hazards, the general duty imposed must apply.[161] The Ghostbusters seem to fall within the general duty requirement by using their "unlicensed nuclear accelerators," but use of these accelerators almost certainly violates EPA regulations, as noted above. The combination of federal agencies (EPA, DOT, and OSHA), and state and local insurance and environmental agencies and bureaucracies can seem overwhelming and counterproductive to even the most willing companies.[162]
Other issues that may concern the local residents include the question of long-term liability for any damage due to leakage or improper storage should the Ghostbusters go out of business.[163]
Once a problem becomes a crisis, compliance with any government regulation seems less important than dealing with the emergency presented. The necessity for avoiding panic and limiting the destruction impels the mayor to disregard Peck's objections and the court's orders. His decision may be legally justifiable since if the EPA has no authority in the matter, the court orders obtained are void.[164] Further, as part of his authority as chief officer of the city, the mayor has broad powers under the emergency powers acts of the New York City Charter.[165]
The last question one might pose is whether the amount of destruction the Ghostbusters carry out in the course of their activities and the noncompliance with public health and welfare regulations they exhibit is appropriate or justifiable, or whether they are somewhat reckless in their approach. Certainly they damaged the apartment building in which Dana Barrett lives. Further, Gozer the Destructor's appearance as the Sta-Puft Marshmallow Man is a direct result of Stantz's failure to follow Venkman's instructions "not to think of anything." The amount of goo produced through the torching of the Marshmallow Man adds to the cleanup costs.[166] However, given the physical and mental strain they are under during the attack on Gozer, the necessity of their actions, the reluctance or inability of anyone else to tackle the problem, and the near-impossibility of "not thinking about anything,"[167] one should acquit them of any charges of negligence or recklessness in the handling of their equipment as well as this particular situation.
Like the original film, Ghostbusters II takes pollution as its subject: pollution of the soul that occurs when evil takes control of human beings and encourages them to exploit the other and other living things. Such self-indulgence is a much darker concept than that in the original Ghostbusters. In order to make its discussion more palatable, Ghostbusters II is a wilder, more farcical ride through the Murray/Ramis/Moranis view of law and society. The psychic plague in Ghostbusters represents the accumulated generalized evil and desire for power in the world, left to pollute the commons until it overwhelms the ability of the earth to absorb and neutralize it. Ghostbusters II considers the existence and nature of Evil. The film postulates that it lies hidden beneath human consciousness, and personifies evil as a polluting river of slime that runs underneath New York city. When this accumulated ugliness finds an entrance into the physical world, ironically represented by the imaginary Manhattan Museum of Art, it bursts through and infects the city. Like Gozer the Destructor in Ghostbusters, the personification of evil in Ghostbusters II, a seventeenth century "genocidal maniac" named Vlad, needs both a door through which to enter and a physical body through which to appear to the human race. For its incarnation it chooses Dana Barrett's eight-month-old son Oscar.
As in Ghostbusters, the legal system represented in Ghostbusters II is concerned with process and procedure, and not with the substantive issues of life and death and good and evil that occupy the Ghostbusters' time. When discussing how to help Dana and her son, the reunited Ghostbusters consider drilling under the street to locate the river of slime. Winston reminds them that their last attempt to save the city was not an unqualified success. "Apart from destroying a whole apartment building, and covering the city with marshmallow gunk, we got sued by every city, state, and federal agency and paid $25,000 in damages. We were wiped out." Clearly, the Ghostbusters did not have a good lawyer.
Nor does the mayor acknowledge their contribution. When Venkman accidentally runs into him and points out that the city never paid for disposing of Gozer and Zul, a mayoral aide pushes the discredited entrepreneur away.
Completely bankrupt, the Ghostbusters have each gone their own ways: Venkman is the host of a local television show, "World of the Psychic," which seems only slightly more respectable than pro wrestling.[168] Stantz runs a bookstore, "Ray's Occult Books," spe cializing in New Age materials. His store serves as the meeting place for the Ghostbusters and their few remaining friends. In his spare time, he and Winston entertain at children's parties singing and dancing to the original Ghostbusters theme. Spengler has what passes for an academic position; he carries out bizarre testing designed to measure the effect of temperature on human psychology. When Dana approaches him for assistance he assures her of his willingness to help. His warm reaction to this friend from the past contrasts markedly with his approach to a young and obviously lonely test subject who is cradling a puppy: "Let's see what happens when we take away the puppy." This scene recalls and contrasts with the opening scene in Ghostbusters in which we see Venkman carrying out his parapsychological research, oblivious to any result except the one that benefits him personally.
At first, since Dana objects to involving her former lover Venkman in her problems, Spengler and Stantz decide to help Dana on their own. Eventually, Venkman worms the truth out of them. Dana, like the rest of New York, is in danger once again from malevolent psychic forces which appeal to the worst side of human nature.[169] They quickly identify the entry point as a painting at the Manhattan Museum of Art and locate the river of slime that runs beneath the city and carries with it the accumulated Evil of centuries. This Evil is not just malevolence or criminality. It also encompasses the self-indulgence and selfishness that lead to the casual commis sion of heinous crimes.
Ignoring Winston's warnings, the trio don bright orange safety gear and masquerade first as telephone repairmen, then as utility workers, and excavate part of a Manhattan street in the middle of the night. They initially elude capture by feigning ignorance of any contrary regulations and asserting that they are just "doing their jobs," in a buried reference to the traditional excuse ordinary citizens give to explain their acceptance of the rise of the kind of tyranny that Vlad and other evildoers represent. The police finally apprehend the Ghostbusters, and the district attorney disposes of them in a very quick trial, remarkable for its lack of procedural safeguards. The lapse of time is only a few days (the film opens just before Christmas and they are tried and sentenced before New Year's Eve, presumably the same year). Their lawyer is the hapless Lewis Tully, who practices only tax law and "went to night school." Venkman approves stating, "it (the excavation) happened at night." The prosecuting attorney is an unpleasant young woman, unattractively attired, who hammers home her legal points to Tully's dismay.[170] "You could give me a break," he mutters to her at one point. "We're both lawyers."
The judge sentences the trio to long prison terms and fines, but before the bailiff leads them away, out pop two executed criminals (representing recidivism[171] and the failure of the legal system) whom the judge has sentenced. Other psychic entities seize the prosecutor and carry her off upside down, symbolizing the reversal of the traditional operation of the legal system as well as the eventual reversal of the Ghostbusters' sentences. The judge takes refuge underneath the defense table. Amid courtroom chaos the Ghostbusters seize their equipment off the evidence table and capture the apparitions. Relieved, the judge screams, "Case dismissed!" and the vindicated trio marches off to save the city.
Salvation ultimately comes in a reaffirmation of the essential and basic desire of human beings for individual liberty, a theme already developed in Ghostbusters. The Statue of Liberty takes the Sta-Puff Marshmallow Man's role, though not its meaning, and marches through the city to destroy the evil forces at work.
One of the clearest messages of Ghostbusters, its sequel Ghostbusters II, and darker films like Falling Down, The Star Chamber, the "Dirty Harry" movies and film characters like those portrayed by Charles Bronson is that government cannot be trusted to protect the people. Whether through incompetence or conspiracy, government officials carry out an agenda designed to disenfranchise the very people they represent. According to these films, the transfer of power from the individual to the government has gone so far that neither the individual nor the group can reclaim it. Therefore, vigilante justice or outright rebellion is justified.
Further, such conspiracy extends from corruption in the legal system, a pervasive theme of many films and television shows as well as popular fiction,[172] to an active conspiracy to "cover up" the existence of extra-terrestrials and their visits to Earth. A plethora of films and TV shows has offered variations on this theme since cinema was invented.[173] Extra-terrestrials and the threat they may pose to human existence are a short step from dangerous psychic phenomena like ghosts and perverted life forms like vampires and werewolves. The popularity of such cult shows as The Night Stalker,[174] in which every week a newspaper reporter braves the ridicule of his editor and the hostility of the local police force, combines the conspiracy theory with the dangers of psychic phenomena; its formula for scarifying the masses has returned in The X-Files.[175] Shows like Millennium,[176] in which the psychic investigator assists a supportive police force, are fewer. More often, the psychic investigator finds himself alone, as in the sixties and seven ties series The Invader,[17]7 The Night Stalker, and the current crop of television series featuring paranormal phenomena.[178]
Combining the stupidity theory (Peck), the conspiracy theory (the city government which doesn't want the public to become aware of the problem once it becomes convinced of the danger), and the element of overwhelming danger posed by the psychic apocalypse creates a climate for increasing public distrust of government officials. The very institutions that have encouraged the public to turn over control of many human activities to elected and non-elected representatives over the past five decades now seem unworthy of that control.
Ghostbusters, like many other films, appeals to a public whose frustration with what it perceives to be government bureaucracy inaction or overaction, an overly litigious[179] and corrupt legal system, corporate greed, and the individual's inability to control his or her own decisions has reached epic proportions.[180] Through its obvious satire of many sources of authority, Ghostbusters telegraphs the desire of many people to act affirmatively to combat what they consider to be dangerous situations. At the same time, it glorifies the ability of the individual to create opportunities, to become important, and therefore become authoritative and powerful. When Roger Delacorte, the library administrator, objects to Venkman's questioning of the librarian-witness to the New York Public Library psychic occurrence, Venkman snaps, "Back off, man. I'm a scientist."[181] While we may question how scientific his methods are (the University administration certainly does), we nevertheless applaud his defense of his behavior. His response to the Dean's charge that he is a "poor scientist" is to start his own business and make more money in a few weeks than the Dean will likely make in a lifetime.[182] We recognize his self-promotion and the carnival atmosphere that surrounds his activities, yet he gets results when the various governments, to which we pay what we consider to be exorbitant taxes, cannot.[18]3 Ghostbuster's farcical elements entertain us, but they also comment on the lack of control many of us feel in regard to our personal and professional environments.[184] The impossibility of dealing with many of the Earth's environmental problems overwhelms us at times.
The appeal of Ghostbusters is in its presentation of the individual who fights back, who retakes control, who demands and receives respect from those in power, who are after all public servants, and who is vindicated by events and the evidence of his own abilities. Walter Peck wants to cite Peter Venkman and the Ghostbusters for environmental violations, and in a rational world he may be right. The Ghostbusters' world is a world of crisis, however, and in such a world we should cite Venkman, Stantz, and Spengler for "spirited" ingenuity, and site them in our law schools for a "friendly"[185] introduction to environmental law.
The courts have held that where someone has special or superior knowledge, as is expected of hazardous waste facility operators, a higher standard of care must be met. As a result, where there has been a release, carelessness or the act of negligence is not as difficult to prove. In addition, most jurisdictions regard an unexcused violation of state statute or regulation as negligence per se. Because it is established by virtue of the violation, negligence need not be shown. Only the causal element must be argued: whether the negligent act actually caused the injury claimed.[61]
Nuisance theory requires a balancing of the risks inherent in the facility operation, in the ability to control those risks, and in the public utility associated with the facility. Proof that a facility is a state-of-the-art design with a low degree of risk when maintained in accordance with acceptable operating procedures should be sufficient to overcome a pre-construction nuisance action.[64]
While the Ghostbusters' storage facility seems capable of containing the psychic wastes, we know nothing about a backup system. We also have no evidence that any other similar business is in operation. Therefore, whether the storage facility design is "state-of-the-art" is open to discussion, absent a finding that ghostbusting is essentially the same type of activity as toxic waste storage and disposal.
"The problem in these mining communities is people have been used to living with this [pollution] for 100 years[.]" "It's not an acute toxicity problem—people getting cancer and dying—so they don't understand why there's a risk." But the risk is real, the EPA says, especially lead poisoning in kids exposed to soil tainted by mine and smelter waste. Many don't believe it. They point to studies that have not found dangerously elevated lead levels in children's blood. Generations of youngsters have played in Leadville's dirt with no ill effects. And residents say that for all the warnings, the EPA has never proved lead occurring in its natural state—different from lead in paint, water or exhaust—is harmful when ingested. For many, the last straw was when the EPA, unable to find high lead levels in children, began an experiment to force-feed pigs soil with lead in it.[72]
Even the suggestion that land may be tainted can lead to falling property values[73] and disastrous drops in stock prices,[74] further fueling unwillingness on the part of some to admit to the possibility of an environmental hazard. The hidden costs of cleanup and bureaucratic intransigence, when revealed, further discourage a public disgusted by ever-higher taxes and costly regulations that seem to provide no benefit. For example,
[i]n 1991 Congress ruled that all sewage treatment plants must remove at least 30% of the organic waste from incoming sewage. For some cities, like Anchorage, Alaska, this is nearly impossible to achieve because the city has little organic matter to remove in the first place. The EPA was not flexible; it told Anchorage it must meet its 30% standard. The city could have spent $135 million on a new sewage treatment plant to meet the standard, but it discovered a much cheaper option. It invited two local fish processing plants to dump 5,000 pounds of fish viscera into the sewer system. The fish waste was easy to remove and Anchorage easily met the 30% rule.[75]
(27) The term "solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include . . . source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 . . . .[110]
However, the radioactive materials used to capture ghosts, could make part, if not all, of the Ghostbusters' waste subject to provisions of the Atomic Energy Act.[111]
[A]ny person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes shall, upon request of any officer, employee or representative of the Environmental Protection Agency, duly designated by the Administrator, or upon request of any duly designated officer, employee or representative of a State having an authorized hazardous waste program, furnish information relating to such wastes and permit such person at all reasonable times to have access to, and to copy all records relating to such wastes.[116]
Whether Peck's request is reasonable, however, is a matter of interpretation. He arrives during the regular business day and seems content at first simply to inquire about activities on site. Peck arrives without warning,[117] and fails to show any identification. Venkman might be able to ask him to return at a later time for purposes of the inspection. However, this could cause Peck to suspect that the Ghostbusters want to conceal materials or evidence of illegality, and the statute does require compliance upon request. Peck, like many of us, suspects the worst of companies that seem to profit from societal misfortune.
[U]pon receipt of evidence that the past or present handling, stor age, treatment, transportation or disposal of any solid waste or hazardous waste may present an imminent and substantial endan germent to health or the environment, the Administrator may bring suit . . . in the appropriate district court against any person (including any past or present generator, past or present transporter, or pastor present owner or operator of a treatment, storage, or disposal facility) who has contributed . . . to such handling, storage, treatment, transportation or disposal to restrain such person from such handling, storage, treatment, transportation, or disposal, to order such person to take such other action as may be necessary, or both.[129]
However, Peck apparently has no hard evidence that the imminent and/or substantial endangerment condition exists, since he does not believe in the psychic plague. Thus, justification for his act would theoretically be based solely on the Ghostbusters' unauthorized use of radioactive materials.
[a]ny substance or mixture of substances which (i) is toxic, (ii) is corrosive (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use . . . .[148]
Further, the statutory definition of "toxic" seems to encompass the effects of exposure to psychic waste.[149] Section 1261(g) provides: "The term "toxic" shall apply to any substance (other than a radioactive substance) which has the capacity to produce personal injury or illness to man through ingestion, inhalation, or absorption through any body surface."[150] Such substances require special packaging and labeling.[151] Transportation of the ghosts from the capture site to the storage facility may also be regulated under the Hazardous Waste Management subchapter of the Solid Waste Disposal Act,[152] as well as under Interstate Commerce Commission regulations promulgated under the authority of the U.S. Department of Transportation (DOT).[153] Apparently, the Ghostbusters take no precautions when they transport captured psychic phenomena in their traps; federal regulations mandate certain standards in the packing, repacking, handling, labeling, marking, and placarding of hazardous materials.[154] Should they find themselves in an automobile accident, for example, the trap might easily be crushed, allowing the trapped ghosts to escape. The Ghostbusters may need to install some backup system to guard against accidental release of the ghosts during transport. The trap should also be labeled with appropriate caution signs to guard against a thief or passerby, unfamiliar with its contents, from mishandling the trap. Furthermore, under the New York State Environmental Conservation Law,[155] the state and city may regulate waste transport. Various state insurance agencies also regulate use of vehicles.[156]