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

Professor McCubbin, Fall 2005
6 Environmental Federal Statutes to be addressed in class:
1. Clean Water Act (CWA)
2. Clean Air Act (CAA)
3. Resource Conservation and Recovery Act (RCRA); regulates solid and hazardous wastes
4. Comprehensive Environmental Response Compensation and Liability Act (CERCLA) “superfund law”; cleanup of contaminated cites
5. National Environmental Policy Act (NEPA); environmental impact statements
6. Endangered Species Act (ESA)
p. 76
I.              SOURCES OF ENVIRONMENTAL LAW: Common Law Roots·what is environmental law? The laws and regulations addressing mankind’s actions and interactions with the nonhuman world. It can be traditional pollution control statutes or natural resources law, can also include land use controls/zoning, toxic tort lawsuits, and international environmental laws
A.         Private Nuisance: unreasonable and intentional interference w/another’s use and enjoyment of her land that results in significant harm; ·The requirement of reasonableness and significant harm help to filter out frivolous claims·has higher hurdle for private suit to win than a public nuisance suit
1.             “coming to the nuisance” doctrine: rejected by most American courts and rely on principle that any unreasonable use of property to the injury of others is a nuisance; refuse to “balance the conveniences”
2.             industrial growth: early on many courts were reluctant to award injunctions against private nuisances if they had considerable economic value
3.             “balancing test” – frequently judge will balance the nuisance w/its benefit to society or loss if it is enjoined
4.             Madison v. Ducktown Sulphur, Copper & Iron Co. (1904): ·”balancing test” b/w P enjoyment and the nuisance’s benefitP filed charges of private nuisances against copper smelting companies; claimed that smoke injured trees and crops and made their homes and lands less profitable and enjoyable; sought bill to enjoin·court recognized the nuisance, but also recognized the value of the industry and that they were operating lawfully w/o intent to injure P and there was no other method to reduce the copper ore, nor a more remote location to operate from·court weighs the value of the industry against the value of loss if it orders the injunction, compared to the value of P’s land; court said it would have awarded damages if they had been filed for and not order the injunction
5.             Questions:(1) Ducktown takes places during the Industrial Revolution, where industry growth is seen as more valuable than environmental preservation and private enjoyment rights; Susquehanna (no balancing test – just granted equity) may have occurred before the Industrial Rev and therefore the land was a more precious commodity, as it was the basis for the economy still
B.          Public Nuisance: this lawsuit can only generally be brought by the state gov’t; an unreasonable interference w/a right common to the general public; ·usually more entitled to relief than private nuisances because it is deemed to have been more thought out and not just a sensitive/wacky individual landowner
1.             unreasonableness is determined by (1) whether conduct involves a significant interference w/the public health, safety, comfort, or convenience; (2) is illegal; or (3) is of a continuing nature or has produced a long-lasting effect on the public right that the actor has reason to know will be significant
2.             Missouri v. Illinois: MO sued IL for public nuisance for dumping its raw sewage into the Mississippi River; court finds that there is not enough evidence to prove causation·proof is also a limitation in a nuisance case!!!·MO wanted to go to the Sup Ct so they sued IL instead of City of ChicagoQuestions:(1) MO could not prove that there were more bacteria present because of IL or that the bacteria came from IL and not from other upriver MO towns; it seems the drinking water quality was affected, but the court suggested that MO implement filters or other preventative measures; the “but for” cause of IL’s water reaching MO due to the construction of the canal makes IL a likely candidate for the increase in typhoid(3) It did not seem as if the numbers showed a substantial increase since the canal opened; other evidence to show harm could have been if industry was being affected or their land; also if any severity were increased in the disease itself or that the probability for future increases was unavoidable(4) The fact that the MO cities dumped their sewage also made it seem as if IL was only being targeted because it was another State and not purely for injurious reasons; if MO had a more sophisticated system it may have called for IL to also comply with these standards
3.             Georgia v. Tennessee Copper Co. (1907): GA filed bill in equity against Copper Co. for discharging noxious gases from their smelting plants that were destroying forests, and crops; Sup Ct allowed injunction this time Questions:(1) Justice Holmes’ rationale is that there is less to balance because a this was a sovereign State is ultimately responsible for deciding in what condition the land will be in and what types of nuisances will or will not be tolerated and has more right to declare suit than a private individual; also a State cannot be awarded damages and the injunction is the only sufficient relief to be given
p. 30
C.         Economics and the Environments: environmental problems are economic problems which are expresse

d.           Who pays? It depends on who was assigned the initial entitlement; if polluter can continue polluting until paid to stop, they have right to pollute; if polluter must pay the beneficiaries/victims, they have a right to be free of pollution
e.            Economic efficiency as a policy objective: treats environment as a resource that is underpriced: resources move to the users who value them most highly
D.         Common Pool Resources:
1.             Hardin, The Tragedy of the Commons:  ·we are all single-mindedly pursuing our own gain at the same time and this leads to pollution or over-usage of resources·tragedy occurs only when use of commons reaches a level where congestion develops or where the resources are used so intensively that it exceeds the carrying capacity of the commons
E.          Approaches to Regulation: Assessing the Options
1.             Regulation & Its Alternatives: privatization is more likely to succeed in protecting resources such as land then in protecting quality of air and water
a.           4 institutional mechanisms that may control environmental risk: see p. 136 table
i.        market forces “well-informed consumer” – can respond more quickly and flexibly than regulation to discourage consumption of products causing damage, but only when consumers are well-informed about link b/w product and the damage [consumers must be well-informed and free to choose] ii.      government regulation – before-the-fact controls for the activities (inputs) that would create damage; government now frequently uses regulation to enhance the effectiveness of other institutional mechanisms for protecting the environment
iii.    liability – after-the-fact rules that establish the price of damage (output); can provide compensation to victims of environmental damage, providing an incentive for potentially liable parties to prevent harm; effectiveness IS limited by financial capability of the parties, which can be expanded thru insurance purchase
iv.    social insurance – this may tend to reduce the insured’s incentive to prevent harm, but high premiums can convince some to use preventative measures/clean-up; helps ensure victims will be compensated