ENVIRONMENTAL LAW
OUTKA
FALL 2013
I. Introduction
a. Tragedy of the Commons
i. Everyone is trying to maximize their personal benefit at the cost of everyone.
1. It is a tragedy because each man is locked into a system that compels him to increase his herd without limit—in a world that is limited. Even if you’re trying to be a good person, the commons will be diminished because other people are still going to use and overuse; therefore you’ll use so you don’t miss out.
ii. As a rational being – each herdsman seeks to maximize his gain.
1. Utility – “What is the utility of me adding one more animal to my herd?” This has one negative and one positive component:
a. Positive in the gain of having one animal added
b. Negative because there are costs of over grazing, but this is fractional because it is shared.
b. Views
i. Anthropocentricity – The view that the human benefit from natural resources is the most important.
ii. Preservation – keeping the wild, wild
iii. Conservation – Making the most out of the resources that we have, or prolong the use.
iv. Externalities:
1. Negative Externalities – these are harms that we are not paying for directly, but indirectly in a different area. These are often hard to quantify. These are the negative results of consuming or using what we need.
2. Ex: What is the cost for us to power our house? The externality is the pollution that is above and beyond what is permitted.
c. Sources and Structure of Federal Environmental Law
i. Federal Statutes – once legislation becomes federal law it is codified into the United States Code (USC), which is divided into titles and sections.
ii. Primary Titles for Environmental Law:
· 7 – Agriculture
· 15 – Commerce and Trade
· 16 – Conservation
· 30 – Mineral Lands and Mining
· 33 – Water
· 42 – Public Health and Welfare
· 43 – Public Lands
ii. Public Law Numbers
· These are the Acts as passed by Congress. Use these numbers when citing to environmental law when you’re talking about the Act.
iii. Federal Regulations
· What is the Statute’s “Trigger”? If the statute applies, what does the Act require or prohibit.
· Statutes delegate to a federal agency the authority to implement the statute.
II. Common Law, Non-statutory, and Constitutional Remedies for Environmental Harms
a. Common law remedies can be tailored to individual circumstances, providing money damages to those directly injured or injunctive relief. Common law remedies can be available where federal and state statutes don’t provide any. Pollution might not meet threshold for statutory violations, but it may have cause either personal or property damage, which is cognizable in common law. Actual injury, emotional distress included, is compensable. Common law supplements federal regulations.
i. Plaintiffs will use negligence and strict tort liability to gain damages for personal injury from environmental pollution.
ii. For invasions of private property, Ps rely on trespass and nuisance actions.
iii. The Public Trust Doctrine stems from Roman law, which held that resources such as air, running water, the seas, and the shores of the sea are common to all—this doctrine is used to protect waterways and their associated lands.
iv. The UCC provides an implied warranty of merchantability on sales by merchants, which includes labeling. Claims for breach of warranty where a product causes environmental injury can invoke the UCC. Express warranties can also be breached.
b. Common law is the only place to get damages, really.
c. In every Common Law action, the P must bring the case within the statute of limitations and establish the causation between the harm and the defendant’s conduct.
d. Harmful conduct that creates no liability for the agent of harm will be produced in excess. Such negative externalities need to become internalized, through bargaining, regulation prohibiting or limiting the harm, or long established common law frameworks that provide rights to injunctive or monetary relief.
NUISANCE
Private
Public
Substantial and unreasonable harm to à
Another’s interest in private use and enjoyment of land
A right common to the general public
Plaintiff is…
Private Citizen(s)
Government entity as exercise of police power OR private citizen + harm different from general public OR standing to sue as representative of general public, as citizen in a citizen’s action or as member of class in a class action
Relief
Injunction or damages
Injunctions or damages (Rest Torts 2d – stricter standing requirements for damages, liberalized for injunctions).
e. Negligence and Public Nuisance Claims
i. Negligence – Negligence common law theories tend to be little used for environmental harms unless
1. The harm arises out of what is clearly an accident, such as a spill or facility malfunction;
2. The remedies sought are of a sort recognized only under negligence doctrine, which does tend to have a more nuanced array of recognized remedies and categories of recoverable damage; or
3. Insurance held by the causer of harm will pay any recovery, and, as is typically the case, insurance does not cover “intentional” acts.
ii. Nuisance – traditionally protected the right of a landowner to use and enjoy property. The only intent P must show is that the activity was undertaken intentionally. Only harms of the sort caused could reasonably be foreseen by the polluter. The idea that externalized harms should be internalized through damages and injunctive relief is explicitly stated by the courts. This can be violated without direct physical invasion. It is divided into public and private.
1. General Rule – Under both, the P must prove that the D’s activity unreasonably interfered with the use or enjoyment of a protected interest and causes the P substantial harm.
2. Substantial Harm – An activity that affects the physical environmental land conditions usually qualifies as substantial harm. Substantial harm may be shown if the activity caused a single, significant injury, or if the activity was a sequence of minor but steadily increasing-in-harm activities.
3. Potential Harm – can be substantial if P can show that the harm is significant and probable. This is difficult because of the time period and attenuated nexus in which some pollution manifests harm.
iii. Public Nuisance: Unreasonable / interference / with a right / common to the general public.
1. To have standing to bring a public action, you must be able to claim special damages that are above and beyond what the general public suffered.
2. Public nuisance actions allow Ps to aggregate damages and enjoin polluting activities that produce serious cumulative harms, rather than focus on individual impacts.
iv. Who can recover for Public Nuisance?
1. In order to recover damages in an individual action for a public nuisance claim, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right in common that was the subject of interference. (Like illness or death).
2. In order to maintain proceeding to enjoin or to abate a public nuisance, one must:
a. Have the right to recover damages, or
b. Have authority as a public official or public agency to represent the state or a political subdivision in the matter, or
c. Have standing to sue as a representative of the general public, as a citizen in a citizen’s suit, or as a member of a class in a class action. Restatement of Torts 2d.
v. Georgia v. Tennessee Copper Co.
1. GA filed a claim in equity to enjoin Ds from discharging noxious gases from their works over GA’s territory. They claimed that the gases was destroying forests and crops, along with other injuries done and threatened in 5 other counties.
2. States often make public nuisance claims. This was a suit by the State for an injury to it in its capacity of quasi-sovereign. In that capacity, the State has an interest independent of and behind the titles of its citizens, i
iii. P must convince a court that the activity causing the harm was unusually dangerous, inherently dangerous in the location where it occurred, or involved materials that are always inherently dangerous.
1. P must prove that D’s activity caused an injury in fact.
2. There is often a foreseeability requirement for strict liability.
iv. In determining whether an activity is abnormally dangerous, consider the following factors:
1. Existence of a high degree of risk of some harms to the person, land or chattels of others.
2. Likelihood that harm that results from it will be great.
3. Inability to eliminate risk by exercise of reasonable care.
4. Extent to which activity is not a matter of common usage.
5. Inappropriateness of the activity to the place where it is carried on; and
6. Extent to which its value to the community is outweighed by its dangerous attributes.
v. In products liability cases, a failure to warn can be alleged, or defective product. The D can raise the defense that they weren’t aware of the risk.
vi. SL is easer to prove than nuisance or negligence.
vii. Branch v. Western Petroleum, Inc.
1. D was depositing water that had petroleum chemicals in it, which contaminated P’s water supply. D argued for negligence rather than strict liability.
2. Rule: One who uses his land in an unnatural way and thereby creates a dangerous condition or engages in an abnormal activity may be strictly liable for injuries resulting from that condition or activity.
3. Whether a condition or activity is abnormal is defined in terms of whether the condition or activity is unduly dangerous or inappropriate to the place where its maintained.
4. The Court held this was strict liability for two reasons:
a. Ponding of the toxic formation water in an area adjacent to the P’s wells constituted an abnormally dangerous and inappropriate use of the land in light of its proximity to the Ps’ property and was unduly dangerous to the Ps use of their well water.
b. SL rule is applied to pollution cases where D has set the substance in motion for escape, such as the discharge of the harmful effluent or emission of a harmful gas or substance.
5. Public Policy: industry should not be able to use its property in a way to inflict injury on the property of its neighbors because this would appropriate the neighbor’s property to one’s own use.
h. The Public Trust Doctrine
i. This doctrine is based on the principle that certain resources are too unique and valuable to be privately owned and must be available for public use.
ii. The Public Trust Doctrine stems from Roman law, which held that resources such as air, running water, the seas, and the shores of the sea are common to all—this doctrine is used to protect waterways and their associated lands.
iii. This is handled under State common law. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. The decision in Nat’l Audubon says that the public trust applies to reallocate a water right when the use would disrupt an ecosystem. This is a check on vested rights.
