Today’s post is inspired by an email from Casey, who wondered about a couple of issues in the movie Ghostbusters. Specifically, was Ray Stantz really a “duly-designated representative of the City, County and State of New York” with any kind of legal authority to order Gozer the Gozerian to leave the city? And did the EPA have a legal basis for shutting down the Ghostbusters’ containment unit?
I. Were the Ghostbusters Duly-Designated Representatives of New York?
It’s pretty strongly implied in the movie that the mayor of New York authorizes the Ghostbusters to deal with the threat posed by Gozer. That much covers the city.
Moving one level up, we turn to the county. The five boroughs of New York City are each coterminous with a county. For example, New York County covers the same area as Manhattan. The New York County government is pretty vestigial, with most ordinarily-county-level functions handled by the city. There are some borough-level officials, such as the Manhattan Borough President’s office, but it has a comparatively tiny budget and is mostly concerned with land use and zoning. Still, there’s no reason to think that the Ghostbusters couldn’t be appointed to represent New York County as well.
Finally there’s the state level. New York City obviously has a fair amount of clout in the state of New York, and we suspect the Mayor would have no trouble convincing the governor to give the Ghostbusters state authority in this situation, especially since it was geographically confined to New York City.
So what kind of authorization could there be? One possibility is that the Ghostbusters could have been made emergency special deputies “for the protection of human life and property during an emergency.” N.Y. County Law § 655. That would give the Ghostbusters the powers of regular police officers. Not actually very helpful against an ancient Sumerian deity, but it’s something. At the very least the qualified immunity would potentially prevent them from being personally liable for collateral damage.
Strictly speaking, all of this state authority would have little effect on the EPA’s jurisdiction (to the extent it has any) or the federal government’s ability to arrest the Ghostbusters or order the shutdown of their facility, but we can assume that the Regional Director of the EPA (actually titled the Regional Administrator), who was present at the mayor’s office, took care of all that.
II. Are Ghosts a Pollutant?
Walter Peck, from the EPA’s “third district,”* thinks the Ghostbusters are scam artists using dangerous chemicals to produce hallucinations and storing hazardous materials in their headquarters. He alleges that they are in criminal violation of the Environmental Protection Act**, and for some reason, this leads him to shut off the containment grid, resulting in all of the captured ghosts being released.
* The EPA actually divides the country into regions. Region 2 covers New York.
** There is no such federal law in the United States. Federal environmental law is a hodgepodge of laws: the Clean Air Act, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, just to name some of the big ones. There’s no Environmental Protection Act, though.
Peck is wrong about the Ghostbusters, but if they were storing and releasing hallucinogenic substances then that could qualify as pollution. For example, under the Comprehensive Environmental Response, Compensation, and Liability Act (aka CERCLA aka Superfund) “pollutant or contaminant”
shall include, but not be limited to, any element, substance, compound, or mixture, including disease-causing agents, which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations, in such organisms or their offspring
42 U.S.C. § 9601(33). That’s pretty dang broad and would definitely include hallucinogenic gases.
One problem with Peck’s actions is that most of the enforcement mechanisms for pollution control are civil, not criminal, and even in the criminal case there would have to be a trial before any penalties could be assessed. In fact, it would probably be easier and faster for the EPA to get a temporary restraining order or preliminary injunction in a civil case than to seek criminal penalties.
But we can gloss over all of those issues. What we really want to know is whether ghosts could qualify as a pollutant. Of course, for most purposes nothing is a pollutant unless it is discharged into the environment, and the Ghostbusters were doing a good job of preventing that. But were the ghosts at least a potential pollutant?
I think they could be, at least under some environmental laws. The fact that ghosts are, in some sense, living organisms doesn’t seem to matter. For example, disease-causing organisms such as viruses and bacteria can be considered pollutants for purposes of the Clean Water Act. 33 U.S.C. § 1362(13) (defining “toxic pollutant” to include disease-causing agents that cause, among other things, behavior abnormalities); 66 C.F.R. 2960 (describing pathogens as a “leading pollutant” in bodies of water). The Clean Air Act likewise defines “air pollutant” to include biological substances or matter that enters the air. 42 U.S.C. § 7602(g).
So it appears that the federal government could potentially regulate the release of ghosts into the environment. Since the Ghostbusters never (voluntarily) released any ghosts, however, I’m not sure the EPA would have much standing to complain.
If the movie had been written so that a ghost or two escaped the Ghostbusters’ containment system, the EPA might have been on firmer legal footing. Alternatively, the EPA might have been able to go after the potential discharge of radiation from the Ghostbusters’ proton packs.
Still, apart from some technical mistakes and omitted detail to keep the plot moving, the legal issues here were pretty minor. The EPA is probably the right agency, to the extent any federal agency is the correct one, and we can forgive the writers for not wanting to get bogged down with administrative hearings and settlement talks.