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Environmental Law
St. Johns University School of Law
Weinberg, Philip

Environmental Law Outline
1)      The Environment and the Courts
a)      Scope of Judicial Power
i)        Judicial review of administrative actions
(1)   Court review of administrative decisions – arbitrary and capricious standard.
(a)    Purpose → w/o some level of discretion, would be tons of litigation. 
(i)     Greater burden than simply preponderance of the evidence. 
(b)   Policy – agencies are more knowledgeable. 
(i)     Disinteresting Topic – Agencies should not blandly “call balls and strikes.”
(2)   But, hard look doctrine when there is a substantial public interest
(a)    Defined – a “searching and careful look” at an agency decision.
(i)     Purpose → ensure that the public is not being harmed w/ arbitrary & capricious standard. 
(b)   Overton Park → “prudent” means something more than cheaper when considering whether to build highway through park. 
b)      Standing (Art. III, sec. 2) and Jurisdiction
i)        Requirements
(1)   Plaintiff must be within the “zone of interest”
(2)   Plaintiff must be threatened with actual injury
(a)    Sierra Club v. Morton → general injury to club not enough, need particularized injury. 
(i)     Douglas dissent → we have legal fictions in maritime law, why not here?
1.      Problem – who represents the mountains? Procedural safeguards are in place for a reason. Plus, need an injury!
(b)   Injury to self, not environment!
(i)     Laidlaw → backyard fishing affidavit suffices. 
(c)    Economic damages are not necessary
(i)     Scenic Hudson → statute says recreational purposes is a consideration (aesthetic concerns, historical significance). 
1.      Aside – corporations need to show members were injured, not necessarily itself.
(d)   Mootness – cannot bring claim for injury already redressed
(i)     Steel Co. → after suit commenced, filed papers…no suit.
1.      But, Laidlaw distinguished b/c there was n allegations of continuing nuisance…
ii)      Fact-specific inquiry
(1)   Compare:
(a)    Warth → no standing for π who alleged injury due to zoning laws that prevented them moving to a town.
(b)   Arlington Heights → standing for π who worked in town but could not buy a house; same w/ π who had plans but was prevented from building due to zoning. 
(c)    Lujan (National Wildlife) → no standing for π challenging grazing law…injury too diffuse, not a specific tract of land. 
iii)    Citizen-suit provisions
(1)   Definition – provision that states any person can challenge certain acts of the agency charged w/ enforcing the law. 
(a)    Effect – obviates the need for standing.
(b)   Note – some contain explicit requirements, some do not. 
(i)     Cashing in – money goes to gov’t, not to π’s. 
(2)   Limits
(a)    Constitution – needs to be a proper case or controversy
(i)     Separate the Powers! See Lujan → provision would violate const. if citizens could sue to require officials to confer w/ Dept. of Interior. 
1.      “…can’t convert undifferentiated public interest in executive officer’s compliance w/ the law into an individual right”
(b)   Ongoing proceedings
(i)     Cannot be brought when agency is already prosecuting or commenced administrative proceeding. 
2)      Nuisance
a)      Background
i)        Why nuisance? Prior to agencies, only way to get remedy. 
(1)   By definition – some type of continuing problem. 
(2)   Difference from other torts – can get an injunction as well as damages. 
(a)    In this regard, it is a precursor to regulatory statutes. 
ii)      Public v. Private nuisance
(1)   Two types of injury:
(a)    Public – an unreasonable interference w/ rights held by the public. 
(i)     Don’t get confused – private citizens can bring public nuisance action. 
(b)   Private – unreasonable interference w/ rights that π has as holder of the land.
(2)   Bringing public nuisance action…
(a)    Elements
(i)     π must demonstrate injury to public at large; and
(ii)   Particularized injury to themselves (not same injury as public).  
1.      Compare:
a.       Citizen suing b/c subway hurts his ears.
b.      Fisherman suing due to toxic exposure of fish (economic and health impact).
2.      Standard – particularized injury must be different in degree and kind.  
b)      Damages and Injunction
i)        Standard of proof
(1)   Majority – for both private and public, must demonstrate an unreasonable interference.
(a)    Note – standard is the ordinary, reasonable person
(i)     Thus, someone w/ unusual susceptibility to air pollution will be denied. 
(2)   Minority (NY) – for public you must demonstrate unreasonable interference, for private you must prove negligence, intent, or SL
(a)    Purpose – affects the defenses available. 
(i)     Ex., coming to the nuisance doctrine could apply.
1.      Benefit – land is probably cheaper.
2.      Drawback – effectively a license to pollute. 
a.       Note – most courts recognize it as a partial defense. 
(ii)   See Copart Industries → possibly could have contributory negligence (failing to cover cars). 
ii)      Value of damages
(1)   Redress for the loss of the value (permanent) of the property
(a)    Above this, limited to incidental costs (medical expenses, shield costs, etc.)
(2)   Note – temporary nuisance begets temporary reduction in value of property.
(a)    Calculation – determined by the reduction in potential rental value of the property. 
iii)    Injunctions
(1)   Preliminary injunction
(a)    Elements
(i)     Irreparable injury; and
(ii)   Likelihood of success on the merits.
(2)   Permanent injunction
(a)    Elements
(i)     No adequate remedy at law (money damages…dollar bills);
(ii)   Injunction for abatement is appropriate.
(3)   “Balancing the equities”
(a)    Effect – cost/benefit analysis weighing the cost to the of abating the nuisance w/ the public interest in abatement. 
(b)   NY rule – officially, not supposed to balance (Whalen)
(i)     But, Boomer → public benefits (read: taxes, jobs) to keeping a cement plant outweighed the tremendous cost of shutting it down or moving it. 
1.      Epilogue – they paid damages until Clean Air Act was enacted and required cleanup in a similar fashion as an injunctive would have. 
(ii)   Note – not always simply cost when balancing, b/c big companies would always win. 
1.      Factors: utility of activities, technological fixes, need, etc. 
(c)    Other results
(i)     Spur Industries → cattle feed lot prevented π from selling homes.
1.      Relief – move the lot at π’s expense. 
c)      Esthetic Nuisance
i)        Fundamental difference – the damages or violation is not quantifiable like a discharge
ii)      National Gettysburg Tower
(1)   Court very reluctant to issue injunction (rev’d on other grounds)
(a)    How do you measure it? 
(i)     Possibly bring in experts to document decrease in land value?
(ii)   We are talking about aesthetic values that may or may not be pleasing to some people. 
d)     Federal nuisance
i)        Background
(1)   IL v. Milwaukee – Sup. Ct. held that federal common law of nuisance existed (Mil. dumped sewage, ended up in IL). 
(a)    But, this suit began pre-CWA. 
ii)      Preempted
(1)   Clean Water Act explicitly preempts federal common law of nuisance. 

that you can’t zone out of apt.’s near commuter lines and highways. 
iv)    Alternatives
(1)   Pay another town to build your affordable housing (typical statute requires 20%). 
(2)   Get tax exemptions from the legislature. 
(a)    Note – most states are only allowed to zone out based on health & safety concerns. 
(b)   Look back to notes for tax implications in this area. 
(3)   Conservation easements
(a)    Procedure – owner conveys his right to develop land to a non-profit to ensure its preservation.
(b)   Two biggies – Nature Conservancy and the Open Air Institute. 
(c)    Purpose – reduces real property tax and provides income tax deductions. 
(i)     Note – taxation on real property is on the basis of the highest possible use of the land.
(d)   Need a statute (most states have one) b/c unless easements are appurtenant (benefiting neighbor) it did not run w/ land.  
(4)   Comprehensive planning
(a)    Principle – can’t simply leave land use decisions to local municipalities b/c they may not do the right thing
(b)   Established in a few areas:
(i)     Environmentally critical areas
1.      Power plants, overhead transmission lines, etc.
2.      States almost always create a board that may override local zoning.
a.       Purpose – one area may not want it for obvious reasons, but it will be extremely beneficial to neighboring areas. 
b.      NY – it is the state that serves this purpose.
(ii)   Large scale development getting approval from state agency
1.      NY → Pine Barren and Adirondack Protection Agency. 
(iii)Protecting farmlands
1.      States can create agricultural districts, so that if you are in one, your property taxes are tiny. 
a.       But, in NY, localities can still change the zoning. 
c)      Critical Areas: Landmarks, Wetlands, Coastline, Flood Plains, and Takings
i)        Landmarks
(1)   Municipal control procedure
(a)    Always need enabling legislation
(b)   Board determines building is a landmark (historic or architectural reasons)
(i)     Staff members are experts in area.
(c)    Permit required to alter
(2)   De Facto taking challenges
(a)    Burden – π must demonstrate that they have been deprived of all of their “reasonable investment-backed expectations.”
(i)     Penn Central – landmark designation did not deprive of all expectations b/c still had TDR’s and could operate train station at a profit.
1.      TDR (Transferred Development Rights) → rights that you had before landmark designation are transferable to contiguous lots. 
2.      But, TDR’s are valuable when they are had as of right…
(b)   Spot Zoning
(i)     Basically occurs when somebody is taking bribes. 
(ii)   Penn Central – not spot zoning b/c it is not arbitrary and capricious designation. 
(3)   Miscellaneous
(a)    Church landmarking and the 1st Amendment
(i)     General rule is no taking w/o deprivation of ability to practice