Environmental Law Outline
Open Book
Environmental Law a Structural Overview
A. Sources of Environmental Law
Private Nuisance
· Def:
o A private nuisance exists when one’s conduct, whether negligent or intentional, unreasonably interferes with the use and enjoyment of another’s property. A private nuisance is a suit filed by private citizens who have individual claims
· Notes
o Unreasonable if the harm it causes is severe and greater than the other should be required to bear without compensation
o That efficiency dictates that liability for private nuisances be imposed only where the nuisance cause substantial damage that exceeds the cost of eliminating it and where the defendant can eliminate the nuisance at a lower cost than the plaintiff
Public Nuisance
· Def:
o A public nuisance exists when one’s conduct unreasonably interferes with a right common to the public. A public nuisance action is filed by the government in representation of the public. An individual can only file a public nuisance claim if that individual can show “special damage” that is more severe and distinct from the public harm
· Tragedy of the Commons
o Basis for clean water and clean air act
o Those people who used public land for personnel benefit have some cost of using public land
o
· Standard
o In determining whether the interference with a public right is unreasonable, the restatement directs courts to consider whether the conduct:
§ Involves a significant interference with the public health, safety, comfort, or convenience
§ Is illegal
§ Is of a continuing nature or has produced a long-lasting effect on the public right that the act has reason to know will be significant
· The reverse Golden Rule
o In a transboundry pollution case, the affected state cannot demand that the source state adhere to a higher standard than the affected state applies to its own citizens
· Seeking an injunction in most nuisance cases
o Purchase injunction: meaning that the company can continue to be a nuisance however, has to pay the harm party for as long as they are a nuisance
o Temporary Injunction:
o Temporary Restraining Order: wonder device for government, we stops the activity of the company for 14 days, and can get an extension for cause. Opponent does not have to be present tries the merits of the dispute after 14 days when the company has to be present. And they plaintiff must show
§ Has to show irreparable harm
§ Continuous action
§ Substantial likely hood of success on the merits
· For example a lab report which shows the company polluting
o Two Types of Temporary Injunction
§ Prohibitory: stop doing the bad thing that your doing
§ Mandatory: you cannot allow the situation to remain in violation of the environmental, health, safety laws. Meaning they have to clean up the pollution causing problems and they have to clean it up now
Regulatory legislation
· Impact of Regulatory Legislation on Common Law actions
o Until 1972 the states were the primary regulator of pollution. The belief was that the common law causes of action for instate pollution would stay intact and protect citizens
· Preemption of nuisance claims by federal environmental protection statutes:
o Illinois v. Milwaukee: Court held that federal regulatory schemes preempt federal common law nuisance.
o International Paper Co. v. Ouellette: The court held that the CWA precluded an action by Vermont land owners against a New York plant under Vermont common law, but recognized an action against the plant under New York nuisance Law.
· Environmental Federalism: Three models of Federal State Relations
o The federalization of environmental law was a product of the concern that state and local authorities lacked the resources and political capability to control problems that were national in scope
o Provide federal financial
§ assistance to encourage states to adopt environmental standards on their own
o Cooperative Federalism Approach:
§ Under this model federal agencies establishes national environmental standards and state may opt to assume responsibility for administering them or to leave implementation to federal authorities
§ Most widely used today
§ And states take care of standards
§ Clean water act, and clean air act
o Preemption of state law
§ It usually is reserved for regulation of products that are distributed nationally, as businesses favor nationally uniform regulation to avoid having to comply with balkanized regulatory standards
o New York v. United States: Supreme Court struck down provision of the low-level radioactive waste policy amendments act of 1985. The provision was found to violate the 10th amendment because it allowed the states no alternative to carrying out the federal policy
B. The Regulatory Process
Rule Making Procedures
Virtually all of the major federal environmental statutes authorize citizens to bring action forcing litigation against epa when the epa administrator has failed to perform a nondiscretionary duty
Rule Making Procedures
Which requires the agencies to provide
Public notice in the federal register of proposed rulemaking actions
An opportunity for the public to submit written comments
Publication of final rules in the federal register accompanied by a concise statement of their basis and purpose
Criteria for successful regulatory negotiation
The parties should have power to affect the decision and an incentive to bargain
The number of parties should be small enough to permit bargaining
The issue must be ready for decision and a firm deadline for decision should be set
Negotiation must have the potential to benefit all parties
The issue should not center on a fundamental value conflict between parties
More than one issue should be involved to allow tradeoffs across issues
The agency
type of technology based approach bases the level of control on the capabilities of technology rather than on the degree of risk or the results of risk benefit balancing
Not giving the agency (EPA) the option of banning something,
Generally speaking not talking about product that is being produced form the point of view of the industry that is producing it, your dealing with pollution which is created
Trying to limit pollution, are not making the decision based on risk so much or health as you are technological feasibility to reach a level of reduction that is both feasibility for technology and economics
Set an MCLG (maximum contain level goals)
Regulated based on a standard of MCL that technologically achieve and with concern for economics
Feasibility has two components the technological and economic
The OSH Act
Court held that feasible meant capable of being done
OSHA must show: substantial evidence that modern technology has at leave conceived some industrial strategies which are likely to be capable of meeting the PEL and which the industries are capable of adopting
Economic: of a reasonable likelihood that the cost of implementation will not threaten the existence or competitive structure of an industry even if it does portend disaster for some marginal firms.
Financially strapped localities also expressed concern that they lack the resources to implement other sdwa regulations that are beginning to take effect
Health Based Regulation
A third approach to the “how safe is safe” question is provided by statutes requiring that regulations be based solely on assessments of public health effects. These are generally referred to as health based regulations
EPA is told to set them at a level at which “no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety
The SDWA’s regulatory regime also permits the relaxation of its standards if the benefits to be achieved from regulating as much as feasible cannot justify the costs of regulating that stringently
The idea of de minimis risk differs from risk benefit balancing because risk are not compared with benefits.
Instead an activity’s risk are compared with a relatively low level of risk, the de minmis level
The court in public citizen v. FDA ruled that the law does recognize as a general principal the idea
Delaney Clauses