ENVIRONMENTAL LAW OUTLINE
Externalities: a cost associated with some sort of activity that is not taken into consideration before engaging in the activity.
· Two theories of environmental legislation
o Pollution is unethical issue and is inherently negative. Advocate legislative action to police corporate and personal behavior to improve environmental quality and assure public health
o Efficiency proponents believe the marketplace itself can control pollution generated as a result of ordinary economic activities. If polluters were required to pass on the costs of pollution to society as a whole by charging prices that reflected the environmental costs o f production, there would be an incentive to reduce levels of pollutants in order to stay competitve
· Polluter Pays: some would say that the polluter should pay for the cost of the externalities
· Pigou/pigouan taxes: green taxes.
· Coase theorum: the idea that whether you follow the polluter based principle or the beneficiary based principle – the result is the same.
o Look this up
o In a world without transaction costs, it shouldn’t matter whether we give this downstream fisher person the right to enjoin the pollution in a lake or require the polluter to end its pollution. The result is the same – just different parties have to pay for it.
· Tragedy of the commons: In common lands, each person has an individual incentive to maximize their own use of common resources even though he knows it will over exploit a resource.
o This theory may not work when the commons are limited to a certain community where they users all see each other all the time
· Common public resources
o Open access regime: anyone can use the resources (tragedy of commons results)
o Limited commons: only certain people within a community can use the resources
o Public good: Nonrival (by using the good you are not using it up – people’s use of the good does not compete with others) and nonexcludable (can’t put a meter on the good or exclude anybody from it)
· Ex. Protecting the ozone layer
Common Law
· Pro and Cons
o Decentralized and remedies can be tailored to individual circumstancesand can provide relief to individuals.
o Pollution may not meet threshold for regulations, but can still cause harm
o Individuals have to pay to receive their own relief.
o It may be hard to show causation
· Private Nuisance
o P has some interest in property
o D’s invasion causes an invasion of p’s interest in use and enjoyment of land
o D’s conduct results in substantial harm: People of normal sensitivities would consider the interference to be substantial
o D’s conduct is
§ Intentional and Unreasonable (balancing the equities below) or
· Either intentional in the sense that it is reasonably foreseeable and unreasonable
· Intentional nuisances know or should know that the nuisance is going on and allow it to continue
§ Unintentional and abnormally dangerous (strict liability)
· Or unintentional and result of reckless or negligent or ultra hazardous activity on the land that leads to strict liability
o Even if there is a nuisance, the court can use its equitable powers to deny nuisance
§ Balancing the harms to determine whether the activity is unreasonable
· Harm to the plaintiffs v. the public and private harm that would be caused to the defendants
o Can look at the economic interests of the defendant
o Also consider how reasonable the d’s activity is: is there anything else they could do to make the nuisance less noxious
· Instead of enjoining the nuisance, can just require damages
· Coming to the nuisance rule – the residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors.
o Courts want to protect the owner of a noxious business from having others move near him and sue
Madison v. Ducktown Sulphur, Copper, and Iron Co.: The fumes from sulphur smelting caused injury to landowners. Crops and timber were injured . The farmers are unable to feed their families because of the pollution. They cannot use their farms and homes as they did before the smelting.
· The court admits that the actions are a nuisance, but only imposes damages, not injunction
· Use a balancing test (balance the equities)
o The company has taken steps to try and reduce the nuisance (moved it out of the area, trying making it cleaner). Injunctive relief would cause the copper mine to go out of business. Closing the business would hurt the community and outweighs the benefit to the landowners. Damages are the only remedy available.
o One side of equation – harm to the plaintiffs versus the public and private harm that would be caused to the defendants.
· The court has discretion whether to grant an injunction or not
· Balance the economic interests of the defendant vs. the harm suffered by the plaintiffs.
o Also consider how reasonable their activity is – is there anything more that they can do
Public Nuisance
· Same as a private nuisance but the state brings an action. Generally to prevent a right held by the public generally. Historically, could only be brought by the attorney general. Ex. Public health or safety (typically part of the state’s police power)
o D’s actions must cause significant interference with right common to the general public (public health, safety, peace, comfort, or convenience) or
o Conduct is prohibited by statute, ordinance or regulation; or
o Conduct is continuing and long-lasting and actors knows or has reason to know of significant effect on public right
· What does the p have to show in a public nuisance case to have standing?
o Plaintiff must suffer harm different than other members of the public to get damage if they are a private system
· Must be distinct from the environmental injury suffered from everyone like suffered a health injury.
o To get an injunction, p must have right to recover damages, or authority as a public official or a representative of the general public
Missouri v. Illinois: Chicago dumps sewage into the Chicago River which makes the sewage flow down to Missouri where people get sick. Missouri is suing. The evidence is not conclusive that the sewage is what is causing MO’s greater illnesses.
· State is defending is interests as sovereign
· Missouri is doing the same thing as Chicago is doing because it also dumps its sewage into the river
o The evidence fails to show causation
· It may not actually be unreasonable since every other city in the country is doing the same thing
· Karkainnen thinks that he uses the lack of evidence to bump up the usual evidentiary standard from preponderance of the evidence to clear and convincing standard. He’s elevating the standard of proof on the grounds that this is behavior that the plaintiff himself is engaged in.
Georgia v. Tennessee Copper: Same copper company as before. The state of Georgia is trying to get an injunction against the copper smelters in TN because they are causing deforestation problems, farming problems etc . . .
· This time enjoins the activity of the smelters
· The court bases its arguments on the special sovereignty of the state of Georgia.
o The state has a distinct interest as a sovereign above the interests of a private person.
o As a sovereign it h as a right to protect its citizens and the natural resources within its boundaries.
· Money damages isn’t enough because it would be an insult to the sovereign state of Georgia to accept money in exchange for giving up some of its sovereignty.
· Court does not take into account how much economic harm will come to Tennessee – GA just has a right to protect its sovereignty.
Other Common Law Causes of Action
· Trespass: direct physical invasion
o Physical invasion can be things like particles even if they are invisible
o More absolute
o Does not have to be an unreasonable interference with use or enjoyment of land – anything is wrong
o Can be actionable without a showing of damages – could still get an injunction
§ Does not need to be harm or damages
· Battery
· Negligence or res ipsa loquitur
o Linking release to the actual injury could be difficult (causation)
· Strict liability: used in cases where the defendant has carried on an abnormally dangerous activity and has subjected a plaintiff to a foreseeable harm
o Factors:
§ Whether the activity involves a high degree of risk of some harm to the person, land or chattels of others
§ Whether the gravity of the harm
in a manner that harmed public trust interests
· The decision tells them to go back to the Water Board. The board must consider the water rights of LA and the public trust interests of Mono Lake.
o They don’t say that public trust trumps appropriative water rights. Water diversions were allowable even though some damage to the resource would occur.
o Only minimal harm was allowed, the state had an affirmative duty protect the public trust whenever feasible.
o The court tells the parties to work it out and doesn’t want to get involved.
The Impact of Regulatory Legislation on Common Law Actions
· Federal preemption analysis looks at supremacy clause: federal law trumps state law
o Express preemption: Expressly says that this statute preempts any state law on this subject
o Actual conflict: either its impossible to comply with state and federal law at the same time. Or if the state’s scheme stands as obstacle to the achievements and purposes of the federal statute
o Field Preemption: Such a comprehensive regulatory scheme that it leaves no room for state legislation on the subject
o This law seems to be conflict preemption and is in conflict with the purposes of the federal statute. A state law is also invalidated if it conflicts with a federal statute. This occurs when the law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress
· Receiving state is barred from applying its law to the producer when they reside in a different state under the CWA.
· Clean Water Act supplanted federal common law in Milwaukee II in suits between one state and another state. It is a limited holding
· The resolution of this issue is not fully matured.
International Paper Co. v. Ouellette: VT landowners brought a nuisance action against a NY paper mill.
· Issues: whether the Act preempts state common law (specifically VT)
· If states were allowed to impose separate discharge requirements on a single point source, the result would be a serious interferences with the full purposes and objectives of Congress
o The law precludes a court from applying the law of an affected state against an out-of-state source
· Allowing a state to enforce its own common law against a NY business would upset the balance of public and private interests so carefully addressed by the Act.
o If a NY source were liable for violations of VT law, that law could effectively override both the permit requirements and the policy choices made by the source state. The affected state’s nuisance laws would subject the point source to the threat of legal and equitable penalties if the permit standards were less stringent than imposed by the effected standards. The source would have to use different control standards and a different compliance schedule from those approved by the EPA even though the effective state had not made the same policy considerations
· NY water quality standards must be applied in determining whether a nuisance existed
· Other state actions that do not conflict with the act are allowed but can only be applied to their own point sources, not to those of other states.
o It does not disturb the balance among federal, source state and affected state interests since the act specifically allows source states to impose stricter standards.
o Prevents the source from having to comply with a number of different regulations from a number of different states
