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

Environmental Protection Law Outline
Duties of the Environmental Lawyer
Duty of Confidentiality to honor the client’s confidences and secrets.
Ethical Duty not to assist the client in committing any illegal acts.
Possible Statutory Duty to report any unsafe/illegal environmental conditions.
Moral Duty to protect others from unsafe environmental Conditions.
Common Law Background
Environmental law is primarily statutory law. Nuisance is not available to non-property owners, and is generally not available to redress activities that pose only a risk of future injury to a property owner.
                                                               i.            Overview:
1.       Potentially covers pollution of air, water, or land by almost any route.
2.       Protects the right to use and enjoyment of land
a.       If you don’t have a property interest, you can’t bring a nuisance cause of action.
3.       Most common action.
Private Nuisance
                                                               i.            An unreasonable and substantial interference with the use and enjoyment of land.
                                                              ii.            Intentional and Unreasonable
1.       Intentional = Knowingly. Intention is established if an invasion continued after the defendant has been made aware of the harm.
2.       Unreasonable = Unreasonable if the gravity of the harm outweighs the utility of the conduct.
a.       Gravity – look at the extent and character of the harm, the social value of the use invaded, the suitability of the use to the location, and the burden on the P to avoid the harm.
b.       Utility – look at the social value of the conduct, the suitability of the conduct to the location, and the impracticability of avoiding the harm.
3.       Unreasonable Factors:
a.       Extent of the harm;
b.       Social value of the P’s use of land and D’s conduct;
c.        Suitability of each to the character of the locality; and
d.       Burden on P and D, respectively, of avoiding the harm.
4.       Negligent or Reckless
5.       As a result of an abnormally dangerous activity.
Public Nuisance
                                                               i.            Private person can bring a public nuisance action if a private member of the community suffers a special injury that is different in kind than that suffered by the rest of the people.
                                                              ii.            Factors
1.       An unreasonable interference with the interest of the community or the rights of the general public;
2.       Clean air and water have been described as public interests.
3.       Traditionally, public nuisance actions could be brought only by public authorities or by a private citizen who had suffered injury different in kind from that suffered by the general public.
a.       Restatement = private citizen who has standing to sue as a representative of the general public, to maintain an action to abate a public nuisance (but not recover damages) without having to satisfy the special injury requirement.
                                                               i.            To obtain injunctive relief the P must show:
1.       That a tort has been committed or one is threatened;
2.       an adequate remedy is otherwise not available; and
3.       the balance of convenience or social utility favors injunction.
a.       Injury in imminent if there is a threat that harm will occur in the immediate future and the anticipated harm is practically certain to result from the act which the P seeks to enjoin.
Strict Liability
                                                               i.            Liability for damages cause to persons or property by abnormally dangerous activities without requiring any showing of fault.
                                                              ii.            Factors:
1.       Existence of a high degree of risk of some harm to the person, land, or chattels of others;
2.       Likelihood that the harm will be great;
3.       Inability to eliminate the risk by the exercise of reasonable care;
4.       Extent to which the activity is not a matter of common usage;
5.       Inappropriateness of the activity to the location where it is carried on; and
6.       Extent to which its value to the community is outweighed by its dangerous attributes.
Toxic Torts
                                                               i.            Personal injury actions based on exposure to substances that present an unusually high risk to human health or to the environment.
                                                              ii.            To Recover for a Toxic Tort P must prove:
1.       exposure in an amount over a period of time sufficient to cause the disease complained of,
2.       the occurrence of the disease,
3.       the elapse of an appropriate time interval between exposure and disease,
4.       a scientifically recognized relationship between the chemicals and the disease, and
5.       the absence of alternative equally probable explanations.
                                                            iii.            Causation:
1.       General Causation – the substances to which they were exposed is capable of causing the type of injury they suffered.
2.       Specific Causation – the substance caused their specific injury.              
                                                            iv.            Substantial Factor Test
1.       Plaintiff can prevail on a showing that the D’s action was a substantial factor in the injury, without having to prove that the injury would not have occurred absent D’s action.
2.       A toxic substance may be considered a substantial factor in the injury if it contributes more than a negligible amount to the risk of harm.
Judicial Control of Administrative Environmental Decision Making
Access to the Courts (standing)
                                                               i.            3rd parties who seek judicial review of agency actions must have standing to sue or they will be denied access to the courts.
                                                              ii.            Sierra Club v. Morton
1.       The P must suffer injury in fact – the party seeking review must be personally injured.
                                                            iii.            P’s suing in federal court must also meet the prudential imitations on standing – the harm asserted by the P must not represent a generalized grievance, and the P must assert his or her own rights and interest rather than those of legal parties, and the alleged injury must be within the zone of interest protected by the constitutional or statutory provision in question.
                                                            iv.            Satisfy Article III, P must show:
1.       It has suffered an “injury-in-fact” that is
a.       Concrete and particularized
b.       Actual or imminent
c.        NOT conjectural or hypothetical
2.       The injury is fairly traceable to the challenged action of the D
3.       It is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Standard of Review
                                                               i.            3 Part Test

th economic and technological considerations and prepare an environmental impact statement for any major federal action significantly affecting the environment.
                                                            iii.            § 103 – Each federal agency should develop its own NEPA procedures
                                                            iv.            § 104 – the Act applies to all federal agencies.
Threshold Issues
                                                               i.            Overview
1.       The first issue is whether an environmental impact statement must be prepared at all? Agencies may adopt categorical exclusions if a proposed action is not covered by NEPA.
2.       If the action is not a categorical exclusion, the agency can prepare an impact statement or an environmental assessment.
                                                              ii.            Federal
1.       The first requirement for an action to require an impact statements is that it is federal. There must be a federal nexus – either funding, a federal license, or projects that federal agencies carry out.
                                                            iii.            Federal Action
1.       NEPA does not apply if agency action is non-discretionary.
                                                            iv.            Exemptions
1.       Unavoidable conflict between the two statutes that renders compliance with both impossible, or
2.       Duplicative procedural requirements between the statutes that essentially constitute functional equivalence, rendering compliance with both superfluous.
3.       Congress can grant full or partial exemptions from NEPA.
                                                               i.            Major Federal Action Significantly Affecting the Environment
1.       Significant:
a.       Look at the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it; and
b.       The absolute quantitative adverse environmental effects of the action itself.
2.       NEPA is not limited to impacts on the natural environment, but socio and economic impacts must be associated with a primary physical impact. (City of Rochester)
                                                              ii.            Segmentation
1.       Narrowly defining a project may allot an agency to avoid preparing an EIS for any part of the project, or may result in a series of separate docs, none of which considers all the impacts of the project
2.       Should an EIS be done for the whole project? — § 102(2)(c)
a.       Detailed statement on environmental impacts.
b.       Adverse effects which can’t be avoided
c.        Alternatives to the proposed action
d.       Trade-offs between short term and long term effects
e.        Any irreversible or irretrievable commitments of resources.
3.       CEQ – gives more detail