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

Environmental Law


Spring 2016

Unit 1: Underlying Concepts and Themes

Unit 1-A: What is Environmental Law and where does it come from?


Three Statues Studied

NEPA: National Environmental Policy Act
ESA: Environmental Species Act
Clean Air Act

Environmental law refers to the biological, chemical, and physical processes that occur on or near the surface of the Earth or in its atmosphere.

Statutory Law: four aspects that allow you to outline the scope and applicability of that statute.

The Statutory Trigger:

To what factual and/or legal circumstances does the statue apply? What event must occur, or what condition must exist, before that statue’s requirements govern a particular situation?

The Basic Definitions:

Most statutes have a definition section that defines many of the statutes key terms; if not courts can fill in the gaps.

Major Exemptions and Exceptions

Once you figure out when a state applies, you then need to know whether there are any statutory exemptions, exclusions, or exceptions-situations that might appear to fit within the statutes’ scope but that Congress for whatever reason has chosen to explicitly remove from the statute’s scope.

Unit 1-B: Pollution and Common Law


Madison v. Ducktown Sulphur, Copper, & Iron Co., Ltd.

Private Nuisance: Interference with your right to your own property. Interferes with your enjoyment.
Complainants are owners of small farms situated in the mountains around Ducktown. The method used by defendants in reducing their copper ores is to place green ore broken up on layers of wood, making large-open air piles called roast piles which expel sulphurets. When burning, large volumes of smoke rises in the air and is carried over to adjourning land. Nearby, complaints are people cannot enjoy their farms with the smoke nor tend to their crops. The smoke has caused ones wife to be sick.

Should an Injunction be granted?

Defendants are pursuing the only known method by which these plants can operate and carry business successfully. The open-air roast heap is the only method known to the business or to science by means of which copper ore of the character mined by the defendants can be reduced. Defendants have made an effort to get rid of the smoke including spending 200,00 in experiments.
If D is granted an injunctive relief, D will have to stop and suffer loosing business. And the industry will suffer for valuable copper will become worthless. The two companies pay out vast sums of money, which is a great benefit to the county and the people working for these companies.

Standard of injunction: irreparable harm, balance of equities, and no adequate remedy of law
Balance of equities? Balance of private property rights vs. economic benefit to the community.
To pass a bill it must state a proper case, but the right must be clear, and the injury must be clearly established, as in doubtful cases the party will be turned over to his legal remedy; and if there is a reasonable doubt as to the cause of the injury, the benefit of the doubt will be given to the defendant, if his trade is a lawful one, and the injury is not the necessary and natural consequence of the act; and if the injury can be adequately compensated at law by a judgment for damages, equity will not interfere.

Holding: No

Denied; Cannot destroy 2,000,000 and wreck two great mining and manufacturing enterprises that are of great importance to the state and county. It would deprive people of work. The defendants cannot reduce their ores in a manner different from that they are now employing and there is no more remote place to which they can move. The decree asked for would deprive them of all their rights. Defendants can pay damages to complainants.

Georgia v. Tennessee Copper Co.,

Public Nuisance
State of Georgia wants to enjoin Defendants, Copper Companies from discharging noxious gas from their works in Tennessee over the plaintiff’s territory. The consequences of the discharge are destructing the forests, orchards, and crops and threatened 5 counties of the state. It alleges a vain application to the state of Tennessee for relief.

Should decisions be made politically? Should it be left to the courts?

The state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. The state remains the final power.
Proof shows that defendants generate in their works near the Georgia line large quantities of sulphur dioxide, which becomes sulphorous acid by its mixture with the air. This is carried by wine over Georgia air.
The fumes can cause and threaten damage on so considerable a scale to the forests and vegetable life, if not health, within the plaintiff state.
Injunction to issue: Conclusion

Missouri v. Illinois

Public Nuisance/Remedy being sought is injunction
Suit is brought by the state of Missouri to restrain the discharge of the sewage of Chicago through an artificial channel into the Desplaines River, in the state of Illinois. The river empties into the Illinois River and the latter empties into the Mississippi at a point about 43 miles above the city of St. Louis. In the bill, it was alleged that the result of the threatened discharge would be to send 1,500 tons of poisonous filth daily into the Mississippi to deposit great quantities of the same upon on the part of the Mississippi belonging to the plaintiff and so to poison the water of that river, upon which various of the plaintiff’s cities, towns, and inhabitants depended as to make it unfit for drinking, agricultural, or manufacturing purposes.

Does the claim that Chicago’s sewage is causing Illinois people to get sick?

Problem of proof

No proof of causation
Contributory negligence, do not know who to blame?

State of Illinois prevails, plaintiff (Missouri) didn’t fulfill burden of showing damage of typhoid. No evidence shows Chicago’s sewage is making people sick.

Common Law

If common law is at play, you have to proof causation and if there is uncertainty, it will be a close call to see if the preponderance standard is satisfied.

Idea/POLICY: Maybe using common law is not a smart idea on how to handle situations like this. We need another legal analysis to do this on a collective action: But, what is the scale?

Collection Action such as people coming together as a whole to come up with someone.

Unit 1-C: Underpinnings of Environmental Law: Ethics and Science

Environmental Policy Question:

value a person attached just knowing that whales or Yellowstone park exist somewhere in the world regardless if they want to visit.
Willingness to pay survey: researches poll people to ensure a particular environmental benefit or to avoid a particular environmental harm.
Ecosystem services: services that intact wetlands and clean soils for filtering water.

Unit 2: National Environmental Policy Act

Unit 2-A: Preliminaries: Administrative Procedure and Judicial Review

NEPA and the APA: Basic Requirements and Judicial Review

Introduction to the Federal Administrative Procedure Act (APA)

If an environmental statue does not supply procedures, then the agency will use the default procedures in the federal Administrative Procedure Act.
Agency includes each authority of government of the US, whether or not it is within or subject to review by another agency.
Agency has some exemptions such as Congress, the federal courts, and military authority exercised in the time of war.
APA does not exempt President, but Supreme Court has determined President is exempt.
APA acquires information about and from the federal government through a few ways

Freedom of Information Act: allows person to obtain agency records from any federal agency for any purpose
Privacy Act: provides protections to individuals regarding the federal government’s records about them.
Government in Sunshine Act: opens many meetings of federal agencies to public participation.

APA and its three categories

Rulemaking Procedures

Process where agencies write regulations of general applicability and future effect
Rules to guide a large number of regulated entities in shaping their future behavior to comply with a federal statute.
Agency Rules include:

Procedural Rules: agency writes to govern its own internal procedures
Interpretive Rules: suggest how the agency plans to interpret ambiguous provisions in the statue or its other regulations
Policy Statements and guidance documents: inform the general public of how the agency intends to apply the statue or its regulations to various kinds of behavior or activities.

If the agency intends a rule to be immediately enforceable against the regulated public, the agency must follow at least the informal rulemaking procedures. These procedures require the agency to

Give notice of the proposed rule in the federal register
Provide an opportunity to the interested public to submit comments on the rule
Publish the final rule, together with a concise general statement of its basis and purpose in the federal register at least 30 days before the rule takes effect.