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Environmental Law
St. Johns University School of Law
Lyndon, Mary L.

1. Economics (tragedy of commons | I = PAT)

· I = PAT formula of Holdren and Ehrlich

o I = impact of human behavior on env. results

o P = pop. size

o A = level of affluence

o Ecological footprint – measure of human pressures placed on global ecosystems

· We are currently exceeding Earth’s capacity to sustain life by 25%

o T = technologies that enhance our ability to consume resources

· So far, we’ve taken steps on path of least resistance, going after obvious env. problems where remedial steps were manageable

o Progress from here will be tougher

· Leopold’s land ethic – thing is right when it tends to preserve the integrity, stability, and beauty of the biotic comm. and wrong if it tends otherwise

· Env. justice movement – argues that low-income comm. and comm. of color bear a disproportionate burden of the nation’s pollution problem because env. laws, regs., and policies have not been applied fairly across all segments of the pop.

o Clinton’s exec. order

o Water quality standards for mercury based on avg. consumption of 2 8-oz. fish meals/month, but some pops., esp. Native American, eat a lot more

· Tragedy of the Commons and other common pool resources

o Individually rational but collectively deficient overuse of env. resources available without cost

o Possible solutions:

· Privatize property

· Primary fcn. of govt. to org. collective action to prevent this

· Drilling for oil in the Arctic National Wildlife Refuge (ANWR) in Alaska

2 Sources

Monday, August 16, 2010

2:36 AM

1. Sources of Environmental Law

(Nuisance | Standing | Environmental Federalism | Regulatory Options | Judicial Review –> Chevron)

A. Nuisance Law Schematic

i. Is there a nuisance?

1. Identify the physical effect targeted by P

2. Is it a private nuisance? An (1) unreasonable interference (2) with the use and enjoyment (3) of a possessory interest in land

3. Is it a public nuisance? An (1) unreasonable interference (2) with a right common to the general public? (3) Does the private P have standing to Sue?

a. Unreasonable: determined by trier-of-fact

i. Balancing test: social utility of activities v. harm they create

1. What are the benefits and detriments each party will suffer if the activity is termianted

ii. Right of P to use protected interest

iii. Could D have prevented activity that caused the harm?

iv. Character of the neighborhood

v. Location of the properties

vi. Nature and use of D’s use and its value to the community

vii. Whether Ds use was begun before P occupied his property

viii. Extent and frequency of the interference with Ps use

ix. Whether interference could be avoided or lessened without undue hardship to D

4. [Cause]

ii. Is D’s activity tortious? (intentional harm, negligence, abnormally dangerous activity

iii. Remedy (damages, injunction, indemnity)

iv. Defenses

1. Is th

ormal standards for redress + immediacy

1. Here Congress gave right to challenge agency action

2. Therefore P has standing if there is some possibility that the requested relief will prompt D to reconsider action

C. Environmental Federalism (Commerce Clause)

i. Fed environment laws generally don’t preempt state common law, but fed may require stats to meet minimum national standards

ii. Congress employs 3 approaches for accomplishing its environment protection objectives

1. Federal assistance to encourage states to adopt environmental standards on their own

2. Cooperative Federalism: federal agencies establish national standards and states may opt to assume responsibility for administering them or leave implementation to fed. Authorities (preemption)

3. Preemption of state law: used sparingly, usually for regulation of products that are distributed nationally

a. EX: permissible preemption

i. Of chemcials under TSCA

ii. Of pesticides under FIFRA

b. EX: impermissible preemption

i. NY v. US: Low-level radioactive waste policy act ‘take title’ gives states choice of either accepting ownership/liability of waste or regulation according to Congress instructions