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Environmental Law
Temple University School of Law
Sinden, Amy

Environmental Law Outline
B. Sources of Environmental Values:



* commercial value of a whale
* scientific discovery
* ecosystem services
* spiritual

Individual animal rights

* Just remember that the lines on this little chart aren’t always so clear
C. The Tragedy of the Commons and the Economic Perspective.
“externality” – the tragedy of the commons – every time you add a cow to the common pasture, the cost of the increased strain on the ecosystem is spread among all of those who share the pasture – eventually, with all of the cattle herders making the decision to buy new cows based on a personal cost-benefit analysis, the commons will be destroyed by over-grazing! (this is the trouble with the rule of capture) <when each individual actor is making individual decisions, there are unaccounted for repercussions…> {2 Solutions to the Tragedy of the Commons – 1) Government Regulation; 2) Privatization}
Approaches to Environmental Regulation:
* absolutist approach à zero pollution (you can’t do anything that will do any harm to your neighbor)
* feasibility standard à what is economically and technologically feasible? (probably the most frequently used in environmental law)
* cost/benefit balancing à Ducktown approach…this actually has a theoretical basis behind it in economics! (Coase)
[* health-based standard à a standard that would say, its too much pollution if its going to harm either human health or ecological health – this standard is cost blind…just look at the benefits of reducing pollution] II. THE COMMON LAW ROOTS OF ENVIRONMENTAL LAW:
Common Law à nuisance! Nuisance law is an, “impenetrable jungle”…balancing of “moral outrage” and “cool analysis”
A. Private nuisanceà invasions of interests in the private use and enjoyment of land; “nontrespassory invasions of another’s interest in the private use and enjoyment of land.”
Aldred’s case (1611) – stinky pig sty – “every man must use his property as not to damnify another.”
Industrial Revolution – more conflicts arising! Hole v. Barlow (1858) – court wouldn’t allow nuisance actions for fear of infringing on progress
* Court’s didn’t deviate from the black letter of Aldred’s case (they didn’t get rid of nuisance all together), but they increased the amount of harm required for nontrespassory intrusions to be actionable
* American Courts followed the British analysis, and then allowed a private nuisance action in order to “let justice be done though the heavens might fall”
* REMEDIES in American tend to b e more British – relu

TRAGEDY OF THE COMMONS! The classic answer to the tragedy of the commons is government regulation.
* what’s wrong with the common law approach?
Retrospective v. Prospective
There may be a slight harm to individuals, so they aren’t going to pursue the litigation…
Information problems – complex scientific stuff!
You have to be a property owner in order to have a cause of action, so there is a whole set of people who might be harmed who wouldn’t have standing.
A. A History of U.S. Environmental Statutes. CB 85-95.
* Environmental law is structurally complex and targets specific pollutants rather than the ecosystem as a whole.
* Environmental law is generally governed by statutory law…
* Modern environmental law really came into being in the early 1970s. The 20th century environmental movement took off with Rachel Carson’s publication of Silent Spring…some Lake burst into flames…Lake Erie died…so a wide-spread grassroots movement developed in the late 1960s and in the 1970s there was a huge legislative initiative on the national playing field…
* there are currently about 30 MAJOR environmental laws