Environmental Law
Doremus
Fall 2013
I. Introduction and Perspectives (2-39)
a. Environmental Policy Perspectives
i. What is Environmental Law
1. Richard J. Lazarus Restoring What’s Environmental about Environmental Law in SCOTUS
2. Attributes
a. Irreversible
b. Uncertainty often difficult to determine if an action will increase or decrease a problem
i. Dicciculty in defining problem
ii. Where uncertatinty is pervasive the person bearing the burden of proof loses.
1. Better safe than sorry?
2. Avoid making obvious economic Harms for restrictions?
c. Multiple Causes
i. Responisbility is diffused
d. Temporally distant Injury
e. Physical Distant Injury
f. Interstate Problems
g. Difficult to place blasé as its everyone
h. Dofficult to get standing: Can’t sue for a Polar Bear
b. Insights from Ecology
i. Dance of Nature: New Concepts of Ecology
1. Natural Systems are Open and Continuously Changing They are not in Equilibrium
2. Linkages in the Landscape
3. Indirect Effects Can be as Significant as Direct Effects in Natural Systems
4. Organismz Not Only Adapt to the Environment They Modify It
ii. Learn from ecology
1. Can Help understand the interaction and connections between the natural systems
2. Understand the nature of environmental injury and what causes of that injury might be
3. Identify thresholds
4. Example
a. Old View: Forest Fires bad
b. New View: Some might be necessary
iii. What is the Appropriate human intervention?
1. Tough questions because science is not always clear
2. Don’t know what we want the world to look like
a. Question of social Values
3. Tough to measure if environmental policy is indeed working
a. Remove dmas improves salmon population? Tough to remove all dams and what is salmon just have an unusaually good or bad year?
c. Insights from Economics
i. Environmental Problems are economic problems as well
1. Cost Benefit anlaysis
2. Conflicting demands for resources
a. Tool for allocating scarce resources
ii. What ca we learn from Economics
1. Markets can be useful
a. In a perfect market we should get to the efficient use of resources (Maximizing human preference)
b. Markets preserve autonomy: transactions are voluntary
c. Individuals can determine their utility better than the government
iii. Allocating Scarce Resources and Markets
iv. Market Failure and Market Correction
1. The Tragedy of the Commons
a. Pollution
b. Mutual Coercion Mutually Agreed Upon
2. Efficincy not the only Goal
a. Environmental matters in of itself
b. Nature doesn’t participate in markets
c. Efficicicency depends on the distribution of resources
d. Transaction costs
i. Free Rider Problems
ii. Big Barrier to making environmental deals where public buys out corporations to protect environment, is the transacation cost getting everyone to contribute?
v. Cost Benefit Analysis
1. Depends on how far into the future we measure costs: Called Discounting
vi. Interface of Economics and Ecology
1. For a market to function efficiently we’ll need
a. Full info
b. No collusion or monopoly
c. No externalities
i. Have to feel all benefits and all cosdts
d. Well defined and enforceable property rights
i. Runs of Salmon and national parks cannot be divided
e. Low Transaction Costs
d. Role of Values
i. A Sand County Almanac: With Other Essays on Conservation from Round River
ii. People or Penguins: The Case for Optimal Pollution
iii. We have met the Enemy and He is Us and Contradiction in Environmental Law
iv. Environmental Law: Ethics or Science
e. Choosing Policy Tools
i. Office of Technology Assessment, Congress of United States, Environmental Policy Tools
1. Harm Based Standards
2. Design Standards
3. Technology Specifications
4. Product Bans and Limitations
5. Tradable Emissions
6. Integrated Permitting
7. Challenge Regulation
8. Pollution Charges
9. Liability
10. Information Reporting
11. Subsidies
12. Technical Assistance
13. Themes
a. Assurance of Meeting Environmental Goals
b. Prevention
c. Environmental Equity and Justice
d. Cost Effectiveness and fairness
e. Demands on Geovernment
f. Adaptability
g. Technology innovation and diffusion
ii. How should we go about correcting problems?
1. Take certain things out of the market place
2. Use law to try to correct the market problems
a. Try to create better markets
b. Replicate ideal market results
3. Privatize if there is a way to fence the resource
a. Owners should have to deal with both costs and benefts
b. The theory is that A will do the right thing and not trash the commons
c. A mi
s, livestock, etc.
ii. Unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct
iii. Abnormally dangerous conditions or activities
c. Permits:
i. Noncompliance with a permit would be nuisance per se.
ii. Does compliance mean no liability?
1. Generally, compliance offers protection.
2. But there may be circumstances where there’s a political problem (such as in the hypo where NC permitting waste in TN), where liability might make sense.
d. Cross-State Jdx.
i. NC waste injures TN resident.
ii. Likely not possible to sue under federal common law. MI v. IL (1981): B/c we have Clean Water Act, Congress has effectively swept away the federal common law. (Fed. Common Law is just a gap filler.) State law generally not pre-empted.
iii. Must apply the law of the Source State (per USSC).
1. Is there a check on a State itself? Yes, the state will apply the same nuisance rules as it applies on its own citizens. Some risk of a race to the bottom
3. Public Nuisance
a. An unreasonable interference with the interest of the community or the rights of the general public
b. Clean air and water have been described as public interests
c. Traditionally, public nuisance actions could be brought only by public authorities or by a private citizen who had suffered injury different in kind from that suffered by the general public
i. Restatement of Torts allows private citizen who has standing to sue as a representative of the general public, to maintain an action to abate a public nuisance (but not to recover damages) without having to satisfy the special injury requirement
d. Interstate Nuisance
i. Ken Alex Tennessee Copper. TN causing acid rain in GA in early 1900’s.
1. Holmes recognized a fderal common law cause of action (rare as there is no fed common law)
ii. Theory has lost in 2 courts. CA now pursiuing with other states in an interstate nuisance suit against coal plants for global warning
