Environmental Law Outline

 
Environmental Law Outline
Fall 2015
Oren
 
I. Preliminary – Approaches and Rationale – Chapter 1 & 2
Renken v. Harvey Aluminum, Inc.
·         Facts: Emissions are damaging fruit
·         90% of the flourides are removed at current level of protection.
·         $2,000,000 upgrades costs for hood and cells
·         Marginal costs of pollution control increases exponentially
·         Air is renewable: different pollutants get removed from the air at different rates
o   Incentive for company to overuse the free air as a dump
·         Externality: economically inefficient use of resources – company has no reason to consider damage upon others
·         Bargaining and Transaction Costs between Harvey and the farmers
o   In the absence of litigation, it would be very hard for farmers to get Harvey to stop polluting to the particular extent
·         Incentivize the company by putting a price on the air
·         Lax regulation of statutes creates a race to the bottom so that they don’t drive out companies
o   Interstate Problems and Race to the Bottom are the two problems for federal government intervention
The Two Approaches
·         1) Technology-Based Approach (TB): sources of pollution should do anything technologically and economically possible to eliminate pollution (what can they do)
 
o   Sources that are less profitable are more constrained under a technology-based approach since tech-based takes into account the economic impact on the source
o   Do we want to be favorable to sources that have different profitability?
o   Regulators may be looking to set a standard to account for a margin of safety
§  Tech-based buys insurance against latent problems
o   EPA has been better at using a TB over their history
o   à Clean Water Act (CWA): more technology-based
 
·         2) Environmental Quality-Based Approach (EQB): make sources do what is necessary to curb the damage being done (what do we need them to do); assign remedy in proportion to problem created
 
o   Note: Technology or Environmental Approaches can each be more stringent than the other, depending on the situation
o   Might make sense to treat the source causing more damage differently than a source not causing environmental damage, rather than a technology based approach which regulates them equally
o   EQB is probably more cost-efficient in most cases
o   Problem with EQB: scientific uncertainty about problems like latent problems
o   EQB  – would most affect places where the concern is the highest
o   EQB – gives more incentive to develop new technology since the damage might not be fixable with existing technology
o   à Clean Air Act (CAA): is more environmental quality-based
Boomer v. Atlantic Cement Co.
·         Facts: Cement factory causing a nuisance
·         Majority: no injunction until tech is found, just pay lifetime damages
o   Plaintiffs get permanent damages as compensation
o   Cost-Benefit Analysis by court – benefits of cement plant versus damage
o   Court simply looks at this one suit and damages in this one lawsuit, not total environmental impact
·         Dissent: injunction until technology is found
o   Dissent: looks to use an environmental quality based approach since it tries to make it stretch beyond what’s feasible presently
§  Give 18 months to find solution or be shut down permanently
·         Different from Harvey Aluminum since the cement factory is using the best technology possible already
·         Awarding damages in one case does not necessarily lead to optimal control of the pollution/damages it is causing in total
·         Courts Bad Forum for Policy:
o   Courts may not ordinarily have the complex scientific knowle