ENVIRONMENTAL LAW OUTLINE FALL 2006
I. SOURCES OF ENV. LAW
(1) Common Law
2 Forms of Common Law Actions: private and public nuisances
Must show significant harm
Must show causation—that D is responsible for the interference
Standard of care:
i. Intentional and unreasonable OR
ii. Strict liability—unreasonably dangerous
iii. Negligent—very harmful
Must turn out to be actionable as intentional and unreasonable interferences with enjoyment of landà deal of certainty that harmful consequences will occurà treated as intentional—typically continuing conduct
Private Nuisances: Non-trespassory invasions of one’s interest in the use and enjoyment of their land
Common law requires something to happen before an action—so the cost of remedy is often much hire than preventing it from happening
Common law remedies are means of redressing damage—though there are anticipatory nusiances to enjoin conduct before harm occurs (very hard to prove—to show irreparable harm)
Env. Law is concerend w/: ongoing, continuous intentional nusiances, unreasonable conduct. Courts balance harm and usefulness of activity.
Usually in private actions—one remedy is compensation for harm sufferred by individuals harmed by environmental dangerous practices: intentional torts, strict liability, negligence
i. Remedies: Montary damages and injunctions
Madison v. Ducktown Sulphur (Tenn 1904)—Air Pollution
i. Ps are local residents-landowners in vicinity of D—burning copper ore at their factory and expelling sulphor which is deposited on P’s propertyà destroys crops, becomes acidic in the atmosphere (air pollution)
ii. Ps established liability of Ds—sufficient proof of causation and significant harm
iii. Ducktown is small community; D’s business imploys a large number of people, worth $$
iv. HELD: This is a private nusiance, but the court denies shutdown/injunction.
v. Court balances interests: decides value of D’s continued operation far outweighs damage to P’s farms: Injunction would destroy the plant, people would lose their jobs, hurt state economy BUT à Ps can receive monetary damages
vi. This could be viewed as a zoning decision—what types of activities will be deemed acceptable –denying the P’s remedy amounts to giving D a pollution easement on Ps propertyà should be handled by political body? Or do land use decisions need insulation?
vii. Who are the rights holders? What is the nature of the rights they hold? What’s the appropriate response in trying to balance P’s interest in use/enjoyment of property and D’s using property to most economically favorable extent
à this balancing approach is now widely accepted
Conditional injunctive—on factory developing the technology
Courts have exerted large amounts of equitable discretion where liability has been established when significant harm and causation have been established
Public Nuisances: An unreasonable interference with a right common to the general public
a. Involves a significant interference w/ public health, safety, comfort, convenience
b. OR is illegal
c. OR 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 signific
or emmissionsà pollution of air and magnitude of the pollution is not disputed
4. HELD: Court will issue injunction after allowing a reasonable time to D to complete structures they are building and efforts to stop the fumes
5. States are more entitled to a specific relief than a private party—it is not lightly to be required to give up quasi-sovereign rights for pay—(court does not engage in equitable balancing)
6. State is a sovereign and is entitled to control over its airspace: Traditional state functions—local land use decisions—fed gov’t can’t decide what level of pollution GA should tolerate
7. Different from MO v. IL—b/c liability was never established in MO—unreasonable interference w/ public health; Would have probably gotten an injunction if had as much proof as in GA; This is a remedy case—MO is a liability case
8. Court issues an injunction limiting the amount of sulphur that can be emmitted
g. Illinois v. Milwaukee: (US 1972)Federal common law public nuisance actions must be brought in federal district courts—not under Supreme Ct original jurisdiction
a. Most of these claims are no pre-empted by Clean Air/Water Act
h. Problems of common law dealing w/ env. issues :
a. Jurisdictional: Competing jurisdidctions w/ different/competing standards of env’tl regulations
Intra-jurisdictional: No strong public proponent of the suit; no public prosecutor wants to charge a local industry w/ nuisance. No private suits b/c one person doingall the work will only receive small amt if damage is widespread.
