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Environmental Law
University of Cincinnati School of Law
Mank, Bradford C.

Environmental Law Outline
 
 
Environmental Values and Policies
 
Two elements of human development have been regularly linked to increasing environmental concerns: population growth and technological change
 
Some characteristics more common to modern environmental problems than to historical environmental concerns:
 
·         uncertainty of mechanism and effect
·         potentially catastrophic effects
·         collective risks
·         irreversibility
·         controllability
 
Modern response to environmental problems have had beneficial effects, however the early successes targeted the problems that were the easiest to see and resolve (e.g. burning rivers). National health standards still have not been met and science continues to reveal new problems.
 
The environment has been labeled a consensual issue, because agreement on its importance is so widespread
 
Critics of environmental policy argue that:
 
·         it has failed to deliver on many of its promises
·         it has ignored some significant issues almost entirely
·         it has accomplished its goals at too high a cost to other values (e.g. property rights, economic growth)
·         environmental law has taken laudable environmental goals and pursued them too far
 
Themes of “Next Generation” environmental law studies:
 
1.      environmental policy must be sensitive to the costs as well as the benefits of environmental regulations, and must choose policy instruments flexible enough to permit localized determinations where possible
 
2.      the structure of environmental law needs reform, it should move beyond single-media or single species approach and adopt a more holistic and longer-term consideration of environmental threats
 
3.      urges reassessment of the allocation of responsibilities between federal, state and local governments
 
Ecological Perspectives
 
            The science of ecology seeks to understand the functioning of ecosystems, both
on a small scale and on a grand scale.
 
Its main premise is the interdependence of everything
 
Homeostasis: the quality of returning to a self-sustaining equilibrium after being disturbed, unless the disturbance is too great
 
Carrying capacity: the extent of disruption an ecosystem could absorb and still rebound
 
Two ecological rule of thumbs:
 
1.      seemingly simple actions typically will have non-obvious and unintended consequences that may culminate in a threat to ecosystem stability
 
2.      smaller actions have less drastic consequences on functioning ecosystems than larger actions
 
Ecologists seek to live in harmony with nature, not at odds with it.
 
            New ecology
 
Myth of the balance of nature: Nature, undisturbed by human actions, will remain constant, and this constant state is the most desirable
 
New ecologists argue that in nature variation rather than constancy is the rule and that scientists should seek to better understand the dynamic nature of ecological systems.
 
            Common Pool Resources
 
Tragedy of the commons: people tend to overuse environmental resources because they are available without cost to us, so the price mechanism does not make us aware of the harm we are causing to other humans or the environment.
 
History of Environmental Law
 
            Six Stages in the history of US environmental law:
 
1.      The Common Law and Conservation Era, Pre 1945
 
·         legislation was left to sate and local governments whose public health or nuisance laws were poorly coordinated and rarely enforced
·         Congress only acted when a public heath problem was particularly visible or obvious
 
2.      Federal Assistance for State Problems, 1945-1962
 
·         federal programs were premised on the notion that environmental problems were the responsibility of state and local governments
·         national concern began to grow
 
3.      The Rise of the Modern Environmental Movement, 1962-1970
 
·         rise traced to Silent Spring book which talked about pesticides accumulating in the food chain
·         environmental groups form
·         increased concern over the environment
 
4.      Erecting the Federal Regulatory Infrastructure: 1970-1980
 
·         explosion of federal legislation (CWA, CAA, RCRA, CERCLA)
·         EPA formed
·         Nixon signs the National Environmental Policy Act (NEPA)
 
5.      Extending and Refining Regulatory Strategies, 1980-1990
 
·         initial laws are broadened and strengthened
·         “Hammer” provisions are included into laws in order to force agencies to adopt regulations
 
6.      Regulatory Recoil and Reinvention, 1991-present
 
·         Republican congress attempts to weaken the environmental laws
 
 
EARLY COMMON LAW
 
Common law relied largely on nuisance law doctrines to resolve environmental law controversies
 
Private nuisance actions focus on invasions of interests in the private use and enjoyment of land
 
Public nuisances were common law crimes that involved offenses against the state arising from actions that interfered with public property
 
Two approaches to nuisance:
 
Threshold: whether action meets a certain threshold, if it does then it is considered a nuisance and must be enjoined /damages
 
Balancing: consider whether the activity creating the nuisance is valuable to society, does the gain outweigh the loss
 
Note: a slap lawsuit is when a company files suit against a plaintiff in order to retaliate and tie up his legal resources
 
Private Nuisance
 
Private nuisances: nontrespassory invasions of another’s interest in the private use and enjoyment of land. Elements:
 
·         must have a property right
·         there is an invasion which results in sufficient harm
·         causation
·         action must be intentional and unreasoanble or unintentional and otherwise actionable under the rules of negligence or reckless conduct or abnormally dangerous conduct
 
The damage in a private nuisance case is to an individual (or a few individuals) as contrast to a public harm
 
Liability is only imposed in those cases where the harm or risk to one is greater than he ought to be required to bear under the circumstances w/o at least compensation
 
In early times, nuisance laws were used as zoning devices, in that industry was kept away from homes
 
However, as the industrial age progressed, courts were less inclined to issue injunctions against the industrialists and would only allow money damages
 
In Madison v. Ducktown Sulphur, Copper and Iron Co.(Tenn, 1904), nearby landowners sought an injunction to stop pollution emanating from copper smelters. The court agreed that injury had been shown and that damages were a matter of right but that an injunction was a matter subject to the courts sound legal discretion. Fearful that an injunction would destroy industry in the state the court allowed damages but no injunction. (Ct employed the balancing approach)
 
            Public Nuisance
 
            Public nuisance: an unreasonable interference with a right common to the general public.
 
In determining whether interference with a public right is unreasonable, courts consider whether the conduct:
 
1.      involves a significant interference with the public health, safety, comfort, or convenience
 
2.      is act illegal
 
3.      is of a continuing nature or has produced a long lasting effect on the public right that the actor has reason to know is significant
 
For a private citizen to assert a claim based on a public nuisance they must show that they have sustained a special injury.
 
The doctrine was most often used to prosecute those who obstructed public highways, fouled public waters, or omitted noxious fumes.
 
Two early S.CT decisions involve public nuisance actions by state authorities against out of state polluters:
 
In Missouri v. Illinois, Chicago built a canal to divert its raw sewage into the Mississippi River. Missouri filed a common law nuisance action seeking to enjoin the discharges

onmental impacts involved. HUD found that development of an alternative location would result in an unacceptable delay. The appellate court held that delay could not be an overriding factor in HUD’s decision. The S. Ct. held that once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences. Here HUD considered the environmental consequences.
 
            The court implies that NEPA imposes no substantive duties on agencies.
 
“major federal action”
 
An EIS must be prepared for proposals for legislation and other major federal actions significantly affecting the quality of the human environment. (legislative EIS’s are rarely performed)
 
If an agency determines there is no significant impact, then they won’t need to do an EIS (this is called a FONSI – finding of no significant impact)
 
The agencies consideration cannot be arbitrary and capricious
 
What are major federal actions: “actions which may be major and which are potentially subject to federal control and responsibility” Includes private projects that require federal approval or funding as well as federal programs, policies, and rules.
 
The most difficult questions in determining whether there is a “proposal for major federal action” have been the appropriate timing and scope of the review that NEPA requires.
 
In Kleppe v. Sierra Club, the club argued that the Dept. of Interior could not allow further development of federal coal reserves in the Northern Great Plains w/o preparing a comprehensive EIS on the entire region. At the time there was no proposal for an action of regional scope, only local actions. In order to warrant an EIS, there must be a major federal action for the region. Mere contemplation of certain action is not sufficient to require an impact statement. The moment at which an agency must have a final statement ready is at the time at which it makes a recommendation or report on a proposal for federal action. (Sutton says the agency should start on an EIS when it begins to allocate resources for the project) However, the notes indicate that sometimes related actions in a region may be so interrelated as to require an EIS for the whole region.
 
In Thomas v. Peterson, the Forest Service planned to construct a road and approved timbers sales. It claimed it did not need to prepare an EIS, because each of the actions considered individually has an insignificant environmental impact. The court disagrees and states that if two separate actions are so interrelated they must be considered collectively. Connected and cummulative action must be considered together: (here, the proposed and timber sales are both connected and cumulative)
 
            Connected actions are actions that:
 
1.      automatically trigger other actions which may require environmental impact statements
2.      cannot or will not proceed unless other actions are taken previously or simultaneously
3.      are interdependent parts of a larger action and depend on the larger action for their justification
 
Cumulative actions: actions which when viewed with other proposed actions have cummulatively significant impacts