Select Page

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

I. Policy Considerations (generally)
A. Ethics Issues
1. Futrell (EPAJ p. 15) (1994)
a) Because environmental law relies on self-reporting and input of information, cooperation from lawyers is especially important.
b) Current codes do not reflect this reality and thus encourage lawyers to advise clients to offer as little information as possible.
c) Omission, suppression, distortion of information should carry greater penalties in environmental law because of need to apply uncertain scientific data.
d) There are also arguments that the lawyer is serving the public, not just her client, in environmental law.
e) Some actions have been taken against lawyers who concealed pertinent information (see n. 7 p. 16)
B. Professional Responsibility Standards
1. ABA Model Code (superseded by Model Rules)
a) Ethical Consideration
(1) 2-26
(a) should not lightly decline proffered employment
(b) should take some unattractive employment
(2) 2-30
(a) lawyer should decline when
she knows action is harassing or malicious
her personal feelings are so intense that she can’t offer effective representation
2. ABA Model Rules of Professional Conduct (2006) (EPAJ p. 12)
a) Rule 1.2
(1) (a) lawyer shall abide by client’s decisions concerning objectives of representation
(2) (b) representation does not equal endorsement of client’s views
(3) (d) lawyer shall not counsel criminal or fraudulent behavior, but may advise as to consequences of any proposed course of action
(a) i.e. you can’t say “don’t report that chemical spill,” but you can say, “if you report that spill you will be fined, and the EPA is unlikely to investigate.”
b) Rule 1.6
(1) confidentiality
(a) (b) can be broken (1) to prevent reasonably certain death or substantial bodily harm, or; (2) to prevent client from committing fraud/crime resulting in substantial financial injury when client has used lawyer’s services to that end.
c) Rule 1.13
(1) (b) when lawyer is serving an organization she may be ethically bound to report a potential violation if it is in the best interest of the organization. Unless the lawyer reasonably believes it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization.
d) Rule 1.16
(1) (a) lawyer may decline or terminate representation if (1) representation would result in ethical/legal violation, (b)(1) withdrawal possible without material adverse effect on the interest of the client, (2) client persists with actions using lawyer’s services that lawyer reasonably believes are criminal or fraudulent, (4) client’s actions repugnant to lawyer, or (7) other good cause for withdrawal exists.
e) Rule 2.1
(1) Lawyer may advise client on moral or ethical issues outside the law.
f) Rule 3.1
(1) No frivolous suits. Argument must be based on law or fact or good faith belief that law should be changed.
g) Rule 3.2
(1) A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
h) Rule 6.1
(1) Lawyer should aspire to 50 hours pro bono work aimed at helping persons of limited means.
C. Regulatory Agendas
1. Legislative considerations
a) market place vs. command and control
b) legislation tends to focus on specific types of pollution (land, water, air) … is that the best way to go about legislation? what about a more holistic approach?
(1) some people point out a tendancy to chase pollution from one source to another … water pollution cleaned, creates land pollution … land pollution burned, creates air pollution … air pollution scrubbed, creates water pollution …
2. Social, Political & Economic Factors (p. 47 EPAJ)
a) Tucker, Progress & Privilege (p. 49 EPAJ)
(1) environmentalism favors affluent over poor
(2) the old jobs vs. environment argument
b) Unions (p. 52 – 54)
(1) UAW flyers bring up environmental justice issues linking race & environment
(2) Unions supporting development of clean power plants
(3) Less savory strategy employed by unions who do environmental review and then threaten developer to file report unless he uses union labor
c) Apollo Alliance for Good Jobs and Clean Energy
(1) coalition aimed at energy independence
(a) quadruple bottom line
good jobs
d) Shabecoff, A Fierce Green Fire (p. 54 EPAJ)
(1) Answers Tuck

Great harm
Can’t reasonably eliminate risk
Common usage?
Social Utiluty / Value to Community
2. sect. 825
a) intentional invasion
(1) acting for the purpose of causing or substantial knowledge of causing nuisance
3. sect. 826
a) invasion must be unreasonable
(1) gravity of harm outweighs utility of conduct
4. sect. 827
a) gravity of harm – factors involved
(1) the extent of harm involved
(2) character of the harm involved
(3) social value law attaches to use/enjoyment invaded
(4) suitability of use/enjoyment to the locale
(a) harm greater in suburban neighborhood than industrial district
(b) goes to environmental justice issues, b/c poor/minority more likely near industrial area
(5) burden on person harmed of avoiding the harm
5. sect. 828
a) utility of conduct – factors involved
(1) social values the law attaches to the primary purpose of the conduct
(a) medical equipment vs. video game manufacturing
(2) suitability to character of locale
(3) impracticability of avoiding/preventing invasion
D. Nuisance is a good fallback cause of action where the law does not protect or preempt, b/c it can be used against ANYTHING that causes harm to enjoyment of land.
1. Crack houses
2. Gangs
3. Race tracks
4. Concerts
a) e.g. Shoreline Amphitheater causing noise in Palo Alto when wind blows in certain direction
5. Global warming
E. Remedies in Nuisance Cases
1. Availability of equitable relief depends on whether the economic effects of an injunction are required to protect an important interest and whether nuisance is prospective in nature.
a) court must balance competing interests
(1) value to community of activity vs. right to enjoy land
if nuisance is prospective, it must pose a suffic