I. BASIC THEMES IN ENVIRONMENTAL LAW
A. THE ENVIRONMENTAL PERSPECTIVE
1) The Breadth and Scope of Environmentalism
a) Human Impact
i) Humans make up only a small percentage of the total volume on earth but have a significant effect on the Earth.
ii) Earth is one small, limited, totally self-contained entity, a single natural system made up of many interconnected and interdependent systems, containing great richness, diversity, and vulnerability to human actions.
iii) Humans, corporations, and government seriously impact the ecological future of the planet.
b) Development of Environmental Law
i) Environmental law was born in controversy, and has developed in cycles alternating between flourishing growth and retrenchment under bitter counterattack.
ii) Since 1960, Environmental Law has become a major sector of our legal system
(1) Mirrors the political evolution of our society
2) The Ecological and Ethical Bases of Environmental Law
a) The Science of Ecology (Micro and Macro)
i) Aldo Leopold, A Sand County Almanac [pg. 7]
(1) The Land Pyramid
(b) When a change occurs in one part of the circuit, many other parts must adjust themselves to it. Change does not necessarily obstruct or divert the flow of energy
(i) Evolutionary changes are slow and local
(ii) Man’s invention of tools has enable him to make changes of unprecedented violence, rapidity and scope
(c) The less violent the man made changes, the greater the probability of successful readjustment in the pyramid
ii) Rachel Carson, Silent Spring [pg. 8]
(1) There is no such thing as a simple one-shot technology.
(a) Everything has continued long-term consequences
(2) Chemical control of insects seems to have proceeded on the assumption that the soil could and would sustain any amount of poisons without striking back, and the very nature of the world of the soil has been largely ignored
iii) Talbot Page, A Genetic View of Toxic Chemicals & Similar Risks [pg. 11]
(1) Relative Costs: The environmental cost of a false negative is much higher than the cost of a false positive
(a) Acceptable Risk: There is little agreement on how to define the level of acceptable risk.
(i) Limiting False Positives: begins with the assumption that there is no risk, and requires the hazard be proved beyond a set standard.
(ii) Limiting False Negatives: the inverse of the guiding principle of criminal law (limit false positives)
1. Requires modeling of credible worst case scenarios
(iii) Balancing False Positives and False Negatives: expected value approach à balances the cost of a false negative, weighted by its probability of occurrence, against the cost of a false positive, weighted by its probability of occurrence.
iv) The Precautionary Principle: If a thing is potentially very dangerous and alternatives exist, why wait until all studies are complete before acting to limit exposure?
v) Tyler Miller, Living in the Environment: Principles, Connections, & Solutions [pg. 14]
(1) Everything is connected to everything else
(2) Global CPR
(a) Building societies based on conservation, not waste
(b) Preserving what we can’t replace, and
(c) Working with nature to help restore what we have degraded or destroyed.
b) Three Economies: An Environmental Economics Perspective
ii) The Marketplace Economy: deals only with things and services that have a price tag and are bought and sold.
iii) Civic-Societal Economy: comprised of all the societal values, capital, institutions, and infrastructure not included in the marketplace.
iv) The Natural Economy: the intricate system of living and geophysical systems that sustains dynamic planetary processes, providing resources and a geophysical base for the human economies.
c) Environmental Ethics
i) Aldo Leopold, A Sand County Almanac, [pg. 21]
(1) “A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.”
B. THE PROBLEM OF THE COMMONS
1) Garret Hardin, The Tragedy of the Commons [pg. 25]
a) Dilemma arising from the situation in which multiple individuals, acting independently and rationally consulting their own self-interest, will ultimately deplete a shared limited resource, even when it is clear that it is not in anyone’s long-term interest for this to happen.
C. A SALTY PARADIGM: ROAD SALT . . .
1) Charles Wurster, Of Salt . . . [pg. 31]
a) Road salt may not increase safety but it does have a negative impact on the environment.
II. Cross-Cutting Themes in Environmental Law
A. A MILESTONE POLLUTION CASE IN HISTORIC CONTEXT: ALLIED CHEMICAL & KEPONE
1) Allied Chemical’s Pesticide Disaster
a) Kepone was produced by Allied Signal Company in Hopewell, Virginia and caused a nationwide pollution controversy due to improper handling and dumping of the substance into the nearby James River.
b) In the United States, its use was banned in 1975.
B. BEYOND KEYPONE: TRACKING SEVERAL DECADES OF ENVIRONMENTAL LAW DEVELOPMENT
1) The Modern Statutory Array in the Years Since Kepone
a) Federal Statutes
The federal Clean Water Act
CWA § 404
Federal dredge-and-fill regulation program
The federal Clean Air Act
The federal Food, Drug, and Cosmetics Act
The federal Emergency Planning and Community Right-to-Know Act
The federal Resource Conservation and Recovery Act
The 1980 federal Comprehensive Environmental Response, Compensation, and Liability Act (“Superfund”)
The federal Safe Drinking Water Act
The federal Occupational Safety and Health Act
The federal Coastal Zone Management Act
The National Environmental Policy Act
The 1990 federal Pollution Prevention Act
The federal Endangered Species Act
The 1976 federal Toxic Substance
Sanders Lead Co., pg. 71]
c) Test: Π must show:
i) an invasion affecting an interest in the exclusive possession of his property;
ii) an intentional doing of the act which results in the invasion;
iii) reasonable foreseeability that the act done could result in an invasion of π’s possessory interest; and
iv) substantial damages
d) Strategic reasons to bring a trespass claim:
i) Longer statute of limitations than nuisance
ii) Encourages the granting of injunctions by emphasizing the act of unconsented invasion
a) Private Nuisance
i) An unreasonable use of property by one person that causes injury to another’s use and enjoyment of their land
(1) Δ’s activity unreasonably interfered with the use or enjoyment of a protected interest; and
(2) Δ’s activity caused the π substantial harm.
iii) Nuisance Per Se
(1) The nuisance exists purely because of where it is or what it does.
(2) Has nothing to do with the way it is being done
(a) e.g., storage of dynamite in a residential area, funeral home in a residential neighborhood (in about half the states), oil refinery in a residential area
(b) Can be abated without any proof of the specific way the act is being performed
iv) Nuisance in Fact
(1) The Δ’s behavior is generating the nuisance
b) Public Nuisance
i) Δ’s conduct unreasonably interferes with a right common to the public.
ii) Filed by the government
(1) The state may maintain a public nuisance action against private Δ’s to compel payment of damages for injuries caused by the Δ or Δ’s agents. [New York v. Schenectady Chemical Co., pg. 83]
(2) Private Π Public Nuisance Standing
(a) An individual can only file a public nuisance claim if he can show special injury distinct in kind and not just degree from the public as a whole
(i) Special damages/injury requirement can be met by showing injury to personal health in many jurisdictions.
iii) Conventional uses of public nuisance address discretely caused harms
iv) Cutting Edge Uses of Public Nuisance Addressing Regional and Global Issues:
(1) Comer v. Murphy Oil Company, pg. 90
(a) Owners of lands and property along Mississippi Gulf coast brought putative class action against oil companies and energy companies alleging the operation of their companies caused emission of greenhouse gasses that contributed to global warming and added to ferocity of Hurricane Katrina, which destroyed their property.
i) Injunctive Relief
(1) Whenever the damage resulting from a nuisance is substantial (e.g., >$100 a year) an injunction should be granted, unless permanent damages are deemed appropriate. [Boomer v. Atlantic Cement Co., pg. 75]