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Environmental Law
University of Illinois School of Law
Rowell, Kristen Arden

Rowell Environmental Law & Policy Fall 2011

I. Environmental Problems

a. Pollution

i. Chemicals that have a measurable effect on human health (in a bad way)

ii. Types

1. Air

2. Water

3. Solid and Hazardous Wastes

4. Toxic Chemicals

b. Overuse of Natural Resources

c. Ecosystem Degradation

d. The Nature of Environmental Injury

i. Irreversible, Catastrophic, and Continuing Injury

ii. Physically Distant Injury

iii. Temporally Distant

1. Cancer

a. What is life worth?

i. Most people would spend ~$7 million to save themselves

b. Sea Level Change

iv. Uncertainty and Risk

v. Multiple Causes

vi. Noneconomic, Nonhuman Character

vii. Others?

1. Wide Distribution/Number of People

2. Unidentifiable Victims

e. Coase Theorem

i. Free market negotiations to handle reciprocal harms

ii. In the absence of transactional costs, parties will bargain with one another

1. Where parties can bargain freely, they’ll reach an agreement that leads to good results, maximizing social welfare

iii. If there are laws regulating pollution, people will bargain in the shadow of the law (inefficiently)

iv. Must also consider the cost of bargaining

1. Transaction costs are not free in the real world, if they get too high the market will not work

f. Hardin, The Tragedy of the Commons

i. Externalities

1. When there is a commons, people externalize the harm and get all the benefits

a. When everyone does this, a lot of harm builds up

i. E.g., an overgrazed prairie

2. Privatization may force people to internalize harms

II. Common Law Solutions

a. Madison v. Ducktown Sulphur

i. Ducktown copper smelting is killing everything

ii. Ducktown v. townsfolk

1. Loss of land only a few thousand dollars, loss of Ducktown would take away many jobs and a lot of money

a. Ducktown had nowhere to go – area as remote as possible

b. Also not doing anything illegal

c. No injunction

b. Georgia v. Tennessee Copper

i. Public v. Private Nuisance

1. Court enjoins conduct based on public nuisance, but warns Georgia that enforcing the injunction is a poor decision if it does more harm than good to its citizens

2. Company eventually discovers that it can bottle sulfur and sell sulfuric acid

a. Technology Forcing – Giving incentives to companies to come up with cleaner methods of carrying on business

c. Missouri v. Illinois

i. Chicago reverses flow of Chicago River to dump sewage in Mississippi River, typhoid in St. Louis increases sharply

ii. Court: Plaintiff bears the burden of proof – Missouri can’t prove that Chicago is causing the increase

1. Plus Missouri is doing the same thing in different places

iii. No injunction

d. Boomer v. Atlantic Cement

tability is lacking

6. Only parties to the suit receive monetary compensation

7. Only case-by-case solutions

8. No global perspective

9. Representativeness

10. If courts only have power on a case-by-case basis, they can’t address systematic concerns

11. Unidentifiable Victims

12. Choosing a defendant forces them to bear all the costs

III. Administrative Solutions

a. Administrative Agencies

i. Empowered by Congress

ii. Controlled by Executive

iii. Powers

1. Quasi-legislative rule-making

2. Executive enforcing

3. Quasi-judicial adjudicating

iv. Powers vulnerable to judicial review

b. Key Issues

i. Scope of agency authority

ii. Agency decision procedures and role of outside parties

iii. Role of courts

c. Types of Agency Decisions

i. Rules

1. Apply prospectively

2. Notice and comment applies

ii. Orders

1. Apply to individual parties

2. Formal adjudication procedures apply

iii. Informal rulemaking

1. Intermediate actions

2. Require notice, opportunity for comment, evaluation and explanation