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Environmental Law
Rutgers University, Newark School of Law
Gold, Steve C.

Environmental Law

Professor Gold

Fall 2011

Underlying Concepts & Theories

1. Largely, our environmental legislation has been a response to crisis.

2. The decision-making tools used to make environmental law come from three different fields —

a. Ethics

i. Inherent obligations exists if we view the world with an ecological conscious.

ii. Basis for ethics is that the individual is a member of a community of interdependent parts. As such, ethics requires he or she co-operate.

iii. Land ethics preserve the integrity, stability, and beauty of the biotic community (Leopold’s The Ethical Sequence)

b. Science

i. Science makes environmental law “legitimate.”

ii. “Ethics” are not a substitute for scientific analysis & too much reliance on ethics results in environmental regulations becoming “arbitrary & unfair” (Tarlock’s Environmental Law: Ethics or Science)

c. Economics

i. Economist view environmental issues as resulting of market failures:

1. Argue many pollution problems arise because by their nature environmental resources are commonly owned (“free access problem”)

2. Mostly involves public goods so free-riding is a problem (Goodstein’s Economics & the Environment)

ii. Counter argument (Sagoff’s Economic Theory and Environmental Law)

1. Environmental laws are intended to address environmental failures, not economic failures. These laws are not necessarily the “most economically optimal solution”

2. Cost-benefit analysis is not appropriate for testing legitimacy of law

a. Economic methods cannot supply the information necessary to justify public policy

iii. Cost-Benefit Analysis

1. Requires some sort of “common value” and costs/benefit vary for different people

2. What do we plan for? A catastrophe of what size?

3. Are there some risks we should just not take, no matter how improbable?

iv. Tragedy of the Commons

1. Premise = individuals over-extract common resources (esp. environmental resources) because they are available without cost. Thus, the “price mechanism” is not present to signify the harm over-extraction causes to humanity and/or the environment.

2. When individuals over-extract common resources, the market is flooded and prices drop.

3. If we know rate of growth of a population, we can maintain a maximum sustainable yield.

a. BUT, (1) how do we regulate?; (2) how do we acquire information to know rate of growth; and (3) how do we ensure our model fits reality?

3. Responding to the Risk of Uncertainty

a. Underlying issue: science is not absolute; legal system must juggle the inherent uncertainty in science when decided when/how to regulate.

i. What information is necessary before the government will act and establish a regulatory framework?

b. Example – BPA plastic

i. Studies reach inconsistent results.

ii. Only animal studies have been conducted.

iii. Possible “solutions”:

1. Markets (allow choice)

2. Limited restrictions (only in children products)

4. Environmental Justice

a. Environmental justice issues arise whenever a facially neutral practice/law/regulation produces a disparate impact on a minority group when compared to the general population.

b. Argument = minorities are disproportionately harmed by environmental regulations

i. Minority communities more likely to be in industrial areas

The Common Law Backdrop

1. Private Nuisance

a. A private nuisance is an invasion of an owner’s private use & enjoyment of his land.

b. Madison v. Ducktown Sulphur, Copper & Iron Co. (1904): roast piles used by D to reduce copper ore caused smoke to descend & injure surrounding lands

i. Because Ps proved an injury, court awards damages BUT court did not issue an injunction because the cost of an injunction would be too great.

1. Ct. invoked a doctrine of equity.

2. Public Nuisance

a. Georgia v. TN Copper Co.: GA seeking to enjoin Ducktown Copper Co. (same D as above)

i. Injunction GRANTED.

ii. Ct. does not have the equitable discretion to balance harm of injunction against injury against a state because states have “rights as a quasi-sovereign”

1. It’s up to GA to decide if the balance is worth it.

b. Missouri v. Illinois: Chicago constructed an artificial channel to discharge sewage into a river that empties into an IL river, then into a MS river located 43 miles about St. Louis. MS argues IL’s sewage as increased instances of typhoid fever.

i. Different than GA v. TN Copper because 2 states involved

ii. Claim rejected because MS could not establish causation (couldn’t “clearly & fully” prove)

1. MS also contaminates stream/river

2. MS is responsible for cleaning water

3. Federal Regulation’s Effect on Common Law Actions

a. IPC v. Ouellette: P, a resident of VT, complains about discharge from NY paper company.

i. HOLDING: when a court considers a state-law claim concerning interstate water pollution that is subject to the CWA, the court must apply state law of point source.

1. State issues permit, so applying source state law is both (1) consistent with CWA permitting system and (2) less confusing for sources.

ii. UNDERLYING IDEAS: cooperative federalism & deference to agencies.

Administrative Procedure Act

1. Basics.

a. If an environmental statute does not include a rulemaking and/or enforcement procedures,

es action is reviewable

c. WHO – plaintiff must (§ 10(a))

i. be “suffering legal wrong because of an agency action, or [be] adversely affected or aggrieved by agency action w/i the meaning of the relevant statute” and

ii. seeking “relief other than money damages” (i.e., declaratory judgement and/or injunction)

d. Plaintiff may not seek judicial review if (§ 10(a))

i. relevant statute precludes judicial review

ii. agency action is committed to its absolute discretion

e. WHERE – judicial review occurs

i. In a federal court of “competent jurisdiction” if statute does not specify

f. WHY – grounds for lawsuit include: (§ 10(e))

i. Arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law

ii. Unreasonable delay

iii. Contrary to constitutional right

iv. Excess of statutory jurisdiction, authority, or limitation

v. Without observance of procedure

vi. Unsupported by substantial evidence in record (w/ reference to formal hearing/record)

g. Standards of review for evaluating federal agency actions (§ 10(e)):

i. Federal court has complete authority (de novo standard of review; no deference) to determine legal issues.

ii. If agency made factual determinations through informal procedures, decisions are subject to “arbitrary and capricious” standard of review.

iii. If agency made factual determinations through formal procedures, decisions are subject to the “substantial evidence” standard of review.

5. Chevron Two-Step!

a. Chevron test applies when a federal agency issues an interpretation of a statute that it administers through fairly structured proceedings (like notice-and-comment rule-making or formal adjudication)

b. The steps:

i. Is the statute clear?

1. Has Congress directly addressed the issue?/ Is Congressional intent ambiguous?

ii. If unclear, is the agency action reasonable?

1. If statute leaves gap OR intent ambiguous, the Court will uphold agency interpretation unless the interpretation is unreasonable.

iii. Generally – when an agency makes a decision, the agency should have a record to review that supports the proposition that the action was “reasonable”