Environmental Law Outline

ENVIRONMENTAL LAW OUTLINE
 
I.     SOURCES OF ENVIRONMENTAL LAW 
A.   Nuisance
 
Private nuisance: unreasonable and intentional interference w/another’s use and enjoyment of his/her land resulting in significant harm
Balancing test: courts balance the nuisance w/its benefit to society or loss if it is enjoined [if an industry, courts will usually weigh value of industry against value of loss if injunction granted compared to value of P’s land]  
Public nuisance: suit can only generally be brought by state gov’t; must be unreasonable interference w/a right common to general public
 
    Unreasonableness determined by:
    ·   whether conduct involves significant interference w/public health, safety, comfort, convenience
·   conduct is illegal; OR
·   conduct is of continuing nature or produced long-lasting effect on public right
 
Proof: this is a limitation for nuisance suit (i.e., river pollution claiming from one city instead of another when both dump into river. . . must be able to directly prove this)
 
States in suits: usually there will be less to balance because State is ultimately responsible for deciding what condition land will be in and what types of nuisances will or won’t be allowed; more right to declare suit than private individual for injunction (because can’t get damages like a private individual can if injunction not allowed)
 
B.    Economics and Environment
 
externality – waste; result of business’s production or cost of production not reflected in their costs or market price of goods (i.e., cost of air pollution not something you pay for to get energy)
 
internalize the externality – when business forced to compensate the people for damage it imposed
 
free-access – this will be over-exploited by all people when common resources are made freely accessible
 
public goods problem: demand for goods enjoyed in common are problem for free market due to free-riding (benefit that others get from someone taking action) and transaction costs (cost to file action for one person) [it’s not worth it to overcome transaction costs and possibility of free-riders to provide public good of the lawsuit even if social benefits would outweigh the cost]  
Tragedy of Commons: tragedy occurs when use of (resources) are used so intensively that it exceeds the carrying capacity of the commons (i.e., too many cattle grazing on one area)
 
C.    Regulatory Bases for Controls
 
Health-Based: controls established on basis of what is required to achieve goal stated exclusively in health or environment-related terms; forces industry to develop new tech to comply w/health reg’s [How little pollution is needed in order to protect public health?]  
Tech-Based: reg standard tied to capabilities of tech; [What is technologically feasible or possible to be done in order to reduce pollution?] Agency does not mandate which  tech to use, but instead says what best tech is and gives standard for all tech to meet
 
 
II.    CLEAN WATER ACT
 
A.