Environmental Law
Pearl
Spring 2015
Economy of Nature
Civic Societal Economy
Marketplace Economy
Common law is not enough protection (retroactivity)
Enforcement of environmental law is just as important as passage of laws
Need for creative litigation strategies
Ethical issues as lawyers
Common Law Theories of Liability
Trespass
1) Done with knowledge of substantial certainty of entry
2) “Real and substantial” invasion (and substantial damages?)
Trespass v. Nuisance
Private Nuisance
Old Rule
Injunction MUST be issued if a nuisance has been found and there are substantial damage
Alternatives
1) Grant injunction but postpone its effect
2) Force defendant to pay permanent damages
3) Something else?
We look at the unreasonableness of the INTERFERENCE, not the reasonableness of the defendant’s conduct in determining whether a nuisance exists.
Public Nuisance
“Public”
1) Injury in Fact
2) “Fairly traceable” to D’s actions
3) Redressable Injury
Negligence
Weaknesses
Harder to prove
Has unique affirmative defenses
State of the art evidence may be persuasive that there was no breach
Strengths
Familiar cause of action
Ability to offer more extensive evidence of D’s misdeeds
Additional damages (e.g. failure to warn)
Strict Liability
Abnormally Dangerous Activities
Joint and Several Liability
Contribution
Old Rule
Contribution not allowed between joint tortfeasors
New Rule
Contribution allowed where one joint tortfeasors has paid “more than his pro rata share of the common liability”
Categories of Compensatories
Past Damages
Personal property
Real property
Lost wages
Medical expenses
Pain and suffering
Hedonic damages
Permanent Damages
Property values?
Raise serious takings issues (because these amount to private condemnations)
Issued very infrequently
Supreme Court Punitive Damages Jurisprudence
1:1 Ratio (or less)
Natural Resource Damages
Calculating NRD’s
Values
Use value
Consumptive value
Non-consumptive value
Non-use value
Option value
Bequest value
Temporal and quasi-option values
Methods of Estimation
Travel cost
Hedonic valuation (market activity preferences)
Speculative rent values
Contingent valuation methods
“Ecosystem services”
Toxic Torts
Unique Issues
Long latency periods between exposure and injury
Proving causation (General and Specific)
Identifying defendants
General Causation
Burden of Proof
Preponderance of the Evidence
Relative Risk (Ratio of Incidence of Injury must be at least 2)
Statistical Significance
Limitations of Common Law
Operates retrospectively
Limited remedies
Variation between jurisdictions
Administered by generalist judges and juries
Causation is extremely difficult for plaintiffs to prove
Courts often lack the territorial reach to deal with large-scale environmental issues effectively
Review and Permit Statues
Regulatory Technique
Identification of an environmental problem
Delegation to agency to make case-by-case determination on activities of concern
Procedure for Implementation
Power to issue/deny/condition a permit
Disclosure Statues
Regulatory Technique
Relevant entities must prepare disclosure report for certain activities
Entities
s exceed their benefits, those regulations are not enacted
Market-Enlisting Strategies
Regulatory Technique
Attempt to align marketplace economic incentives with the behaviors that will result in the desired environmental outcome
Procedure for Implementation
Subsidies
Taxes
Emissions trading
Hazardous Substance Regulation
Regulatory Technique
Seek to prevent contamination of soil and groundwater by hazardous substances
Procedure for Implementation
Technology-based requirements
Tracking and reporting requirements
Roadblock provisions
Cooperative Federalism
Capture
When industry goals and agency objectives align
Agencies cannot achieve their goals without industry cooperation
Agencies will be blamed for economic impacts on industry
Established firms exert significant influence on agencies over time reinforcing their own positions
Agencies have extremely limited resources compared to industry
Agencies rely on industry for information, policy development, and political support
Tactics to Limit Standing
Apply broad prudential power limitations where Congress has not granted specific standing rights
Require that plaintiffs be within “zone of interest” that statute was intended to protect
Read citizen suit provisions very narrowly
Add more restrictive principles as constitutional requirements so as to override statutory grants of standing
