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

Environmental Law Outline

I. Introduction and Perspectives
a. Attributes of environmental problems
i. Irreversible, catastrophic, and continuing injury
ii. Uncertainty: often difficult to determine if an action will increase or decrease problems.
1. Difficulty in defining the problem. Do we care if a species disappears? What if they’re just reduced (wolves)?
2. Where uncertainty is pervasive, the person bearing the burden of proof loses. Should we play it better safe than sorry? Or favor avoiding more obvious economic harms of imposing restrictions?
iii. Multiple causes
1. Responsibility is diffused
iv. Temporally distant injury
v. Physically distant injury
vi. Interstate problems
vii. Difficult to place blame as it’s everyone
viii. Difficult to get standing: can’t sue on behalf of a polar bear
b. Insights from Ecology
i. Environmental problems are ecological problems
ii. What can we learn from ecology?
1. Can help you understand the interactions and connections between natural systems
2. Understand the nature of environmental injury and what the causes of that injury might be
3. Identify thresholds to avoid catastrophic harm
4. Example:
a. Old view: stop forest fires
b. New view: fires are a part of the system
iii. What is the appropriate human intervention?
1. Tough question because the science if rarely clear
2. Don’t know what we want the world to look like
a. Question of social values
3. Tough to measure if environmental policy is working.
a. Remove dams improves salmon population? Tough to remove all dams and what if salmon just have an unusually good (or bad) year.
c. Insights from Economics
i. Environmental problems are economic problems as well
1. Cost/Benefit analysis
2. Conflicting demands for resources
a. Tool for allocating scarce resources
ii. What can we learn from economics?
1. Markets can be useful
a. In a perfect market, we should get to the efficient use of resources (maximizing human preference satisfaction)
b. Markets preserve autonomy: transactions are voluntary
c. Individuals can determine their utility better than the government
iii. Markets aren’t perfect though
1. Efficiency’s not the only goal
a. Environment matters in and of itself
b. Nature doesn’t participate in markets
c. Efficiency depends on the distribution of resources
d. Transaction costs
i. Free rider problems
ii. Big barrier to making environmental deals, where public buys out corporations to protect environment, is the transaction cost of getting everyone to contribute.
2. Cost/benefit analysis depends on how far into the future we measure costs: called Discounting.
iv. For a market to function efficiently we’ll need
1. Full information
2. No collusion or monopoly power
3. No externalities
a. Have to feel all the benefits and all the costs
4. Well-defined and enforceable property rights
a. Runs of salmon, and national parks cannot be divided
5. Low transaction costs
v. How should be go about correcting problems?
1. Take certain things out of the marketplace
2. Use law to try to correct the market problems
a. Try to create better markets
b. Replicate ideal market results
3. Privatize if there is a way to fence the resource
a. Owners would have to deal with all of the costs as well as the benefits
b. The theory is that A will do the right thing and not trash the commons
c. A might have a shorter term orientation – may not care about the future
4. Regulate the commons – command-and-control regulation
a. Government tells people what they may and may not do
b. Substitutes for a market
c. Might do a cost-benefit analysis to determine how much regulation to impose
i. Since Reagan admin, every admin agency: Must to cost-benefit analysis of major regulations and adopt only if they can make a reasoned determination that the benes outweigh costs.
ii. This is true even as agencies are barred from considering cost in setting standards (i.e. EPA setting clear air standards).
1. Purpose is to set a higher standard than cost/benefit analysis, given worries that industry will skew results.
2. Not all trade-offs can be made: we don’t do C/B analysis to approve murder. C/B analysis here could justify letting certain portions of the population die.
3. EPA required to set levels safe to public. Nothing is perfect, but how do we know what is acceptable.

5. Incentives and fines
a. Leave the choice up to the individual but change the background in which the choice is made
b. Less coercive than regulation
c. Ex. Raise the price of entry into parks – less people will go
vi. Ecologist v. Economist: Ecologist focuses on irreplaceability of present goods. Economists believe resources are replaceable via a C/B analysis. What we owe the future depends on our values.
d. Global Warming:
i. Consensus that it’s occurring and caused by people.
ii. 2 Biggest Contributors: China and USA
iii. What role do international agreements play? No one nation can solve the problem.
1. Kyoto Protocol: Calls on developed nations to roll back their emissions based on 1990 levels. No requirement for China or India to rollback, and thus US won’t sign.
2. How to measure reductions? Should all be required to reduce in equal degrees? Should we all be required to achieve an equal level.
3. Kyoto set up a market system whereby US could buy pollution rights from Russia. But, Russia (and other nations) didn’t like the idea of giving up industry.
4. Principles of national autonomy mean we can’t vote on a solution. Must be done via agreement.
iv. US Gov. has done nothing to address global warming at a national level.

Environmental Common Law

II. Common Law Environmental Doctrines
a. Hypo: Oak River Pollution.
i. James waters livestock and irrigates crops and gets drinking water from river running by his land. Water pollution causes crop loss, animal death and human cancer: James believes Fox paper mill is the cause. Fox has permit to discharge some pollutants from N.C., but not all. James lives in TN.
b. With regard to law to apply, SCOTUS has held that the law of the state of discharge applies
c. Nuisance
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
3. If you don’t have a property interest, you can’t bring a nuisance cause of action
4. Most common action.
d. Private Nuisance
i. An unreasonable and substantial interference with the use and enjoyment of land
ii. Liability for acts that are either:
1. Intentional and unreasonable
a. Intentional = Knowingly. Intention is established if an invasion continued after the defendant has been made aware of the harm.
b. An invasion is unreasonable if the gravity of the harm outweighs the utility of the conduct or the harm is serious and the economic burden of compensation would not make the conduct infeasible
c. ‘Unreasonable’ factors
i. Extent and character of the harm
ii. Social value of the plaintiff’s use of land and defendant’s conduct
iii. Suitability of each to the character of the locality
iv. Burden on plaintiff and defendant, respectively, of avoiding the harm
d. Substantial harm: to land, to land value, to people, crops, livestock, etc.
2. Unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct
3. Abnormally dangerous conditions or activities
iii. Permits:
1. Noncompliance with a permit would be nuisance per se.
2. Does compliance mean no liability?
a. Generally, compliance offers protection.
b. But there may be circumstances where there’s a political problem (such as in the hypo where NC permitting waste in TN), where liability might make sense.
iv. Cross-State Jdx.
1. NC waste injures TN resident.
2. Likely not possible to sue under federal common law. MI v. IL (1981): B/c we have Clean Water Act, Congress has effectively swept away the federal common law. (Fed. Common Law is just a gap filler.) State law generally not pre-empted.
3. Must apply the law of the Source State (per USSC).
a. Is there a check on a State itself? Yes, the state will app

he injury, without having to prove that the injury would not have occurred absent defendant’s action
ii. 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
f. Expert testimony
i. Federal Rules of Evidence
1. The trial judge must determine whether expert testimony will assist the trier of fact
2. Factors to consider: Daubert
a. Whether the theory or technique has been tested
b. Whether it has been subjected to peer review
c. The known or potential error rate
d. General acceptance in the relevant scientific community
ii. CA Factors: Frye: Whether theory has achieved general acceptance.
g. Accrual of the cause of action
i. Discovery rule
1. Statute of limitation runs not from the time of exposure but from the time when the plaintiff knew or should have known of the injury
h. Courts have generally refused to allow recovery solely on the basis of an increased risk of developing cancer or other diseases in the future
i. Some have allowed recovery for fear of future disease as a form of emotional distress
1. Must be reasonable
2. A lot of jurisdictions require proof of physical harm beyond exposure
ii. Stigma damages: What if drop in land value is due to irrational fears? What if James has a fear of cancer? Should it be compensable?
1. Courts rarely find compensable. It’s emotional distress, but typically only get damages when show substantial factor (more than 50%). More below.
2. If we overcompensate, price of paper shoots up. If we under-compensate, James suffers at hands of industry w/o recompense.

IV. Administrative Law of the Environment
a. Regulatory System v. Tort System
i. Inability to pay in tort. Can require insurance or bondedness before entering an industry in regulatory system.
ii. Administrative costs
1. Private costs
2. Regulatory agencies
3. Courts
iii. Differences in knowledge/information. Experts in regulatory system.
iv. Barriers to bringing suit (high costs, harm spread over people and time) but compensating victims.
v. Process for goal setting: Difficult to set a goal to protect penguins in tort.
vi. Distribution more evenly spread in regulatory system.
vii. Flexibility v. stare decisis nature of tort.
1. On flip side, often tough to get an issue on an administrative agenda, but a court can hear any argument of damage.
viii. Forward-looking nature of regulatory system v. backward.
ix. Consistency and clarity greater in regulatory system. Tort cases come out differently across the country, and very difficult to determine what you will get.
x. Politicization of regulatory system means some problems will not be addressed. Built-in check on the system allows citizens to still bring suits.
b. State law v. Fed law
i. States must meet min. fed standards.
1. Often do more
2. Eg. CA has done much more on global warming.
c. Limitations on agency power
i. Constitution
1. Nondelegation doctrine (Art. I)
a. Congress can’t give legislative power away
b. But, Congress does routinely delegate some legislative power
c. SCOTUS allows this as long as there are some “intelligible principles”
Clean Air Act – EPA is to set standards that are requisite to protect the public