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

 
ENVIRONMENTAL LAW – STEVE GOLD, SPRING 2017

Nuisance as a Common Law Action
Madison v. Ducktown Sulfur (TN, 1904) (BB): Facts: Copper mine is smelting roasted iron ores to make iron. In the process it emitted sulfuric acid and destroyed downwind plants, crops, forests, health. Ps are farmers (private citizens), Ds are smelters. Ps sue for injunction to stop operation of smelters. Holding: No injunction, only damages-pure economic analysis. Plant would be useless w/o smelting, one mill employees 1300 people & paid $500k in wages annually. Not worth it.
: Laches – a defense that says P should have acted sooner and entitlement to injunction has been reduced.
State of Georgia v. Tennessee Copper Co. (U.S., 1907) (698): Facts: State of GA sued D for operating smelting plant in TN that produces sulfuric acid. GA requested an injunction. Public nuisance claim. Holding: Injunction issued. This is a suit by a state for an injury to it in its capacity as a sovereign state. It is fair and reasonable to demand (on the part of the sovereign) that the air over its territory should not be polluted by sulfuric acid gas. The fumes caused and threatened damage on a considerable scale – to the forests, vegetation, and citizens. GA as a sovereign state has a right to protect itself – even if this means uprooting companies outside its borders. 
Missouri v. Illinois (U.S., 1906) (BB): Facts: MO claimed that IL, through artificial channel, was dumping to Miss. River causing illnesses to downstream drinkers: increase in typhoid fever & that bacillus bacteria can and does survive journey to St. Louis; claim dumping 1500 tons/day of filth. Public nuisance. Suit for injunction. D claimed that it’s MO’s own farmers were polluting it b/c the water it drains into Miss. River is cleaner than before the waters of the Illinois River enters it- defense of unclean hands. Holding: Dismissed. P admits that practice of discharging water into river is permissible. Where the P permits discharges similar to those of which it complains, it warrants D in demanding the strictest proof that P’s own conduct does not produce the result it complains of. Note: Nuisance is strict liability, not negligence claim. So no contributory negligence. If equity claim, balance the equities.
: Unclean Hands: Equitable defense.  If you are also doing bad things – you cannot stop others from doing the same thing.
: Strictest Proof Standard. Party with unclean hands asserting claim must via strictest proof show did not contribute to the harm.
Difference between public and private nuisance.
Public nuisance (Tennessee Copper and Missouri) filed by the government in representation of the public. Exists when one’s conduct unreasonably interferes with a right common to 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.
Private nuisance (Madison) is a suit filed by private citizens who have individual claims. It is an invasion of a person’s interest in the use and enjoyment of his/her property. It exists when one’s conduct, whether negligent or intentional, unreasonably interferes with the use and enjoyment of another’s property.

Economics of Environmental Regulation and Cost-Benefit Analyses
No markets exists to set prices for intact ecosystems and the services they provide.
Use Values: the environment supplies goods that people use and sell in various markets, such as trees for firewood and lumber, minerals for industry and construction, fish for food, etc.
Direct use values: easy to value in terms of dollars because they were sold on the market – environmental goods.
Indirect use values: Value of environmental processes that support direct uses (i.e. plankton that feed fish that fisherman catch).
Recreation: is not easy to monetize, but may approximate through entrance and lodging fees, travel expenses, and equipment costs.
Non-use values: spiritual and aesthetic value of the environment (i.e. knowing Grand Canyon, Great Barrier Reef, etc. exist).
Willingness-to-pay survey: poll people regarding how much they would be willing to pay to ensure a particular environmental benefit or to avoid a particular environmental harm.
Ecosystem services: another measurement of valuing environment. Services that intact ecosystems provide that humans depend upon (i.e. intact wetlands and soils). NYC’s restoration of Catskills watershed.
Example of cost-benefit analysis: March 2011, EPA published The Benefits and Costs of the Clean Air Act from 1990 to 2020. Looked at direct costs. Concluded that benefits of air pollution regulation have and will continue to greatly exceed the costs. Included direct costs of reductions in various pollutants, health improvements, and other benefits from improved air quality. Monetized by value of reduced mortality.
Aldo Leopold, A Sand County Almanac: A Land Ethic: “Think like a mountain;” the inherent obligation to view the world as one ecological community and be consciences of the natural environment. Preserve the biotic community. But at what point will gov regulation be too cumbersome? So use an ethical approach.
Tarlock’s Environmental Law: Ethics or Science: ‘Ethics’ are not a substitute for science and too much reliance on ethics makes environmental regulations arbitrary and unfair.
Goodstein’s Economics and the Environment: Many pollution problems arise b/c by their natural environmental resources are commonly owned (‘free access problem’); public goods (‘free riding problem’). If people weight private benefits against private costs (not social costs), they will over exploit common resources when given free access. Rely on lawsuits and transaction costs to regulate; free market environmentalism
Sagoff’s Economic Theory and Environmental Law: Environmental laws are intended to address environmental failures, not economic failures. Not necessarily ‘most economically optimal solution;’ cost-benefit analysis not appropriate for testing legitimacy of law b/c economic methods cannot supply the information necessary to justify public policy (how much do you value a commodity does not work).
Gold’s chart
Balancing stuff and environmental quality analogous to balancing grades and fun
If technological change allows us to get more stuff, without giving up environmental quality, the frontier can push outward.
Example: natural gas vs. coal – less “energy-efficient stuff” vs. “climate benefit”. Natural gas has less environmental impact. New technology can push frontier outward.
Down and in: inefficient change
Up and out: more efficient change
Winners and losers: Coal miners may lose their jobs, but society may be better as a whole (distributive effects not taken into account).


THE NATIONAL ENVIRONMENTAL POLICY ACT

Administrative Procedure Act
Does the statute that the agency is implementing specify procedures for the agency to follow?
Yes à The agency must follow those procedures.
No à The APA’s procedures apply.
APA’s procedures à rulemaking + adjudication
NEPA and the APA: Basic Requirements and Judicial Review
Statutory Provisions
: Process whereby agencies write regulations of general applicability and future effect; rules that guide a large number of regulated entities in shaping their future behavior to comply w/ federal statutes. § 553
Three kinds of rules:
: agency governing its own internal procedures
: suggest how agency plans to interpret ambiguous provisions in the statute/other regulations it creates
Policy statements and guidance documents: inform the general public of how the agency intends to apply the statute/its regulations to various kinds of behavior/activities
Informal Rulemaking (notice and comment rulemaking)
Give notice in Federal Register.
Provide opportunity for interested public to comment UNLESS rules are required by statute to be made on record, then made under formal rulemaking.
Publish final rule together w/ concise general statement of its basis and purpose in Federal Register, at least 30 days before rule takes effect , codified in CFR.
Formal Rulemaking: Agency holds hearings w/ testimony like a tria

eference to guidance documents, etc., but still entitled to respect.

Introduction to The National Environmental Policy Act
: to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality. § 2
Statutory Provisions
Congressional declaration of national environmental policy: Lists priorities. § 101
Cooperation of agencies: “fullest extent possible” laws/regs/policies will be interpreted/administered in accordance w/ NEPA. Procedural provision which is inflexible. § 102
Council on Environmental Quality: NEPA established the CEQ to assist the President with environmental concerns. § 105. Duties of CEQ:
Aid the president in preparing the Environmental Quality Report;
Gather information on the conditions and trends in the quality of the environment;
Review the activities of the federal government in light of the purposes of NEPA and make recommendations on them;
Develop and recommend to the President national environmental policies;
Conduct investigations, studies, surveys, research, and analyses relating to the ecological systems;
Document and define changes to the natural environment and interpret their underlying causes;
Report at least once a year to the president on the state of the environment; and
Make studies and reports as the President may wish.
The main responsibility of the CEQ is to issue guidelines to explain to government agencies NEPA’s requirements. Courts owe substantial deference to the CEQ guidelines interpretation of NEPA.

When to Prepare an Environmental Assessment § 1501.4
P. 280: Is the agency about to engage in a major federal action that might affect the quality of the human environment?
YES à The agency must prepare an EIS before undertaking the activity.
NO à The agency need not prepare an EIS

P. 281: Has the agency categorically excluded this type of action?
YES à An EIS is not required, UNLESS there are extraordinary circumstances.
NO à Does this type of action normally require an EIS?
YES à An EIS is probably required, although the agency may still first prepare an EA.
NO à The agency will prepare an EA.

Environmental Impact Statements (see chart on p. 343 of textbook)
NEPA § 102(C) requires federal agencies to consider the effects of their actions on the environment by preparing a detailed Environmental Impact Statement (EIS), which include:
The environmental impact of the proposed action,
Any adverse environmental effects which cannot be avoided should the proposal be implemented,
Alternatives to the proposed action,
The relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
The main purpose of the EIS is to inform the public as well as the decision makers about the proposed action and alternatives to such action.