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Environmental Law
Rutgers University, Newark School of Law
Dore, Michael

ENVIRONMENTAL LAW OUTLINE

ISRA

ISRA imposes certain preconditions on the sale, transfer, or closure of “industrial establishments” involved in the generation, manufacture, refining, transportation, treatment, storage, handling or disposal of hazardous substances or wastes.
Owner or operator of industrial establishment that handles hazardous substances or waste obligated to assess the environmental condition before the transfer or closing of the site.
Hazardous substance broadly defined

Petroleum products included (heating oil)

Closing and Transfers

Undefined under ECRA (Environmental Cleanup and Responsibility Act)
ISRA defines

Letter of nonaplicability

DEP doesn’t issue anymore
Banks started to require even when not needed – demand too high

Non-covered transaction (??????)

Landlord- Tenant

Petition DEP to determine who is initially liable
Leases generally clear about env obligations

Submit when triggered:

Initial statement
Preliminary assessment
Negative declaration (no discharges or discharges cleaned up) OR
Remedial action work plan (needs approval)
Remediation Agreement – provide assurance that you will be able to pay

STANDING

Interfaith

NJ Standing Statute
Sufficiently special relationship
Redressability – requires that relief can actually be given by the court

Environmental Rights Acts

Cases can’t be settled without approval of the court

Sierra Cub v. Morton

Sierra Club argued had standing b/c status as public interest group with long-standing focus on preservation, NOT members would be directly injured
Data Processing Test:

Injury in fact (more important)
Interest arguably within the zone of interests to be protected or regulated by the statute that the agency is claimed to have violated

Holding: mere allegation of sincere interest, even if long-standing, not enough to constitute injury in fact.

BUT SC would have had standing if said members used area for recreation purposes

Lujan

No injury in fact – P’s cannot sue for abstract interest in administrative compliance with the law
“some day” intentions not enough
ecosystem, animal, vocational nexus – bs too

Mass. v. EPA

EPA decides not to decide whether greenhouse gases are a pollutant
Mass. has standing

Stevens: states special – get standing to bring claims that not-states don’t have

Found that Ps had satisfied 3 part standing test

Injury in fact (aesthetic or recreational enough)
Causation
Substantial likelihood that judicial relief would reduce extent of P’s environmental injury

Rejected argument that small incremental step can never be attacked in federal court

Fed court has JD to decide whether EPA has duty to take steps to slow or reduce global warming

ENVIRONMENTAL JUSTICE

Should law protect uniquely susceptible population groups?
Big Env losers (large burdens based on greater good)

Shore
Highlands

Groups without political power get screwed
Types of Justice

Distributive
Procedural (are people allowed to be heard?)
Corrective (punished equally? Enforcement)
Social (meet their

ception to single controversy rule

Often not utilized after it is awarded

Fund set up and used to start monitoring program

Downsides

Stigmatize people
Stress and concern
Is it really good for the people being monitored?

In re Paoli

Medical Monitoring claimant must show

That she was significantly exposed to a proven hazardous substance through the negligent action of D
That as a proximate result of exposure she suffers an increased risk of contracting as serious latent disease
That the increased risk makes medical examinations reasonably necessary
That monitoring and testing procedures exist which make early detection and treatment of the disease possible and beneficial

Sinclair

Limited Medical Monitoring to environmental exposure
Relative vs. Attributable Risk

Relative – in terms of general population
Attributable – certain factor cause greater than 50% – more likely than not

Dore: must prove it is more likely than not that you will get the disease under Ayers Test

Is medical monitoring remedy or cause of actions?

Matters for:

Insurance
Statute of limitations
Injunction based class action