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Environmental Law
Southern Illinois University School of Law
McCubbin, Patricia Ross

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

ermit required for incidental fallback during dredging; THIS RULE DECLARED INVALID!!!
fallback – when redeposit takes place in substantially the same spot as the initial removal
§505 Citizen Suits:  authorizes suits against any person/business who violates effluent standard or order, or against EPA for failure to perform this duty
Tech-based Standards
BAT – best available tech (that is economically achievable)
BPT – best practicable tech
BADT – best available demonstrated control tech
· CWA requires new dischargers to meet BADT requirements and existing dischargers were required to meet BAT by 3/31/89
· POTWs (publicly owned treatment works)
CWA violation penalities
· gov’t or citizen can obtain fines against violator
· citizen suit if no gov’t action
· gov’t can get injunctive relief
· gov’t can obtain criminal penalties or jail time or “black-list” companies to not enter in further contracts
B.    Point Source
point source – any discernible, confined and discrete conveyance (pipe) from which pollutants are or may be discharged; must be clearly identifiable source and easy to control; any man-made conveyance used to funnel/channel pollutants into waters [not