Environmental Law Outline

Introduction
– Methods of Environmental Regulation
· Command and Control
1. Technology Based Regulation
◦ Promote the creation of new technology
◦ Require the new technology to be used
◦ i.e. Do same harm-causing activities, cause less harm.
– e.g. Factories can use new technology to emit less pollutants
◦ Problems:
– New technology can be very expensive.
2. Environmental Quality Based Regulation
◦ A standard or limitation established to achieve certain levels of protection to the environment
3. Banning Certain Activities
◦ e.g. No killing Florida panthers
– Problems:
– We need to do some of these things that cause environmental harm
· e.g. We can’t ban automobiles. But we can limit emissions.
· Market Incentives
4. Cap-and-Trade System
◦ Fix a cap on emissions, allot pollution credits
◦ Companies can trade pollution credits
◦ Old factories are more expensive to make clean, will have incentive to buy others’ credits
◦ New factories easier to upgrade, cheaper, can sell credits
◦ Next generation factories built cleaner to take advantage of profit from selling credits
5. Taxes
◦ New taxes
◦ Tax incentives
· Information Disclosure
6. Provide public information about environmental conditions
– e.g. NEPA
– Economic Considerations
· Cost Benefit Analysis
– Compare the benefit of cutting pollution against the cost
· Cost Effectiveness Analysis
– Compares the cost between two options to achieve a certain goal
– Pick the least costly method
· Identification and Consideration
– Costs are merely identified and considered
· Cost Obliviousness
– Costs are not considered at all
– Common Law Torts
· Causes of Action
A. Negligence
◦ Duty
◦ Breach
– Reasonableness test (But what is reasonable?)
· All factories pollute. Why would it be unreasonable for another to do so?
◦ Causation
– Medical conditions often have many contributing factors
– Medical conditions often take long time to affect you
◦ Damages
– Might be too early. → Damages might not have occurred yet.
B. Strict Liability
1. Ultra-hazardous activities
– It doesn’t matter if they were taking precautions, they are still liable for certain acts.
– Factors to consider in determine whether it is an “ultra-hazardous activity”
· Appropriateness of the location
· Risk of harm from the conduct
· Ability to minimize the harm
· Extent to which the benefits of the activity outweigh the harm
2. Products Liability
– Design defects
– Failure to warn of the risks of using the product
C. Trespass
◦ Typically involves a physical intrusion onto the property of another
◦ e.g. Dumping garbage onto somebody else’s property
D. Nuisance
◦ Private Nuisance
– Conduct which unreasonably interferes with the use and enjoyment of another’s land
– Can be negligent or intentional
◦ Public Nuisance
– Conduct which unreasonably interferes with a right common to the public
– Typically brought by the government
◦ Spur Industries v. Del Webb, 1972
– Law of nuisance is elastic
– Cattle farm in middle of nowhere, Retirement community built next door
– Bad smells → nuisance
– Cattle farm must leave, Developer must pay him his costs to do so
· Remedies
– Injunctive Relief
– Damages
– Regulatory Agencies
· The 4th Branch of Government
– Specialized Knowledge / Expertise
– Arose ≈100 years ago when society become more complex
– Agents of the Legislative Branch
◦ Legislature decides the broad big-picture
◦ Delegates to agency the authority to make regulations
– Law
◦ Legislature → Statutes
◦ Agency → Rules / Regulations
– Functions
◦ Legislates, executes, and interprets its own rules and