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Environmental Law
Santa Clara University School of Law
Manaster, Kenneth A.

ENVIRONMENTAL PROTECTION LAW READING NOTES
 
Environmental Protection & Injustice Book by Professor
THESIS: What environmental lawyers do is distinctive, important, and different from what other attorneys do in a profound sense. Reconcile EP goals with justice.
Importance of Environmental Justice Movement; examine policy underlying EP
e.g., incinerator in Vernon despite numerous “approvals” from City agencies
                        Relevance of NIMBY
Often there are two competing notions of “justice” and underlying arguments; multi-layered conflicts; both sides may be “right” from their perspective of environmental justice
 
 
August 25, 2008 à pages 1-25
 
I.                   Perspectives
a.       Environment is dynamic; as environment changes and new information emerges, legal solutions must adapt
                                                              i.      Law is dynamic and often deeply political interaction between legislatures, government agencies, courts, and affected interest groups
b.      “Tragedy of the commons” à where people face many incentives to exploit resources, but few instances to protect of preserve them
II.                Overview
a.       Major Themes
                                                              i.      EP law overlaps with constitutional and administrative law; but also torts, criminal law, property law, and international trade law
b.      FOUR MAJOR ISSUES
                                                              i.      Who should set environmental policy?
1.      whether an administrative agency has exceeded the bounds of its legislative authorization
                                                            ii.      How should we make tradeoffs between environmental protection and cost?
1.      Cost-benefit analysis
                                                          iii.      What regulatory instruments should be used?
                                                          iv.      How should we deal with scientific uncertainty?
1.      problems are compounded because many of the effects in question are long-term and cannot be reliably gauged until decades in the future
III.             Is there a there there in environmental law?
a.       What have environmentalism and environmental regulation contributed to the law?
                                                              i.      Minimize uncertainty before and as you act
                                                            ii.      Environmental degradation should be a last resort after all reasonable, feasible alternatives have been exhausted.
1.      projects only un

a.       Prior to 1970 à EP law virtually non-existent
b.      First à NEPA on 1/1/70
                                                              i.      Requires federal agency assessment of the environmental impacts of proposed federal agency action and possible alternatives.
                                                            ii.      Essentially a procedural requirement that had a massive impact on governmental decision-making
c.       Substantive requirement laws
                                                              i.      Clean Air Act of 1970
                                                            ii.      Federal Water Pollution Control Act Amendments of 1972
1.      a/k/a Clean Water Act as further amended
                                                          iii.      Endangerd Species Act Amendments of 1973
d.      GOAL à ID classes and categories of polluting or environmentally destructive activities that threatened human health and the environment, and then to impose stringent standards on their performance