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Environmental Law
Texas Tech School of Law
Pearl, Tracy Hresko

Environmental Law


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


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


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


1) Injury in Fact

2) “Fairly traceable” to D’s actions

3) Redressable Injury



Harder to prove

Has unique affirmative defenses

State of the art evidence may be persuasive that there was no breach


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


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


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


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



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


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