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Environmental Law
University of Mississippi School of Law
Rychlak, Ronald J.

Environmental Law
Summer 2012
Chapter 2 The Authority to Protect The Environment
            I. Common Law Remedies
                        A. Nuisance and Negligence
                                    .Tort of Private Nuisance-cause of action designed to cover invasions of the P's property due to conduct wholly outside of that property
                                                -Nuisance-unreasonable or ulawful use by a person of his own property, real or personal, or from his improper, indecent, or unlawful personal conduct, working an obstruction or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage.
                                                -this action can stand on its own or be appended to federal counts
                                                -Components-1) D acted with the intent of interfering w/ the use and enjoyment of the P's property 2) that a substantial and unreasonable intereference w/ the P's use and enjoyment of his or her property did in fact result.
                                                -Main issue to be resolved is whether the D interefed w/ the P's enjoyment of his property
                                                -should be able to recover money damages and injunctive relief
                                                a. Public v. Private
                                                            Public-interference w/ the right of or threat to the general public
                                                                        -modern trend is to allow private individuals to sue for damages based on public nuisance whether it is public or private.
                                                                        -governed by strict liability, but when a private litigant brings the action the P may have to establish some degree of culpability(negligence) by the D
                                                            Private-interference w/ his or her property
                                                                        -most common form of interference is noise pollution.
                                                                        -Common law nuisance is the most usefull to a P.
                                    1. Elements of the Case
                                                -D's intent is typically required in private nuisance cases, but not public nuisnace cases.
                                                -Intent requirement is satisfied if the D creates or continues the nuisance w/ the knowledge that harm to the P's interests are occuring or are substantially certain to follow.
                                                -where there is physical damage to the P's land, water or improvements, even unintentional or accidental interferences are actionable.
                                                -for an interference w/ land to be a nuisance, invasion of P's interests must be both substantial and unreasonable. Substantial means a significant harm to the P. Standard for harm is determined by looking at the senses of a “normal person in the community”. Unreasonable does not mean the D's activities must be unreasonable, only that the burden on the P is unreasonable; nuisance must be of such magnitude and intensity as to cause actual physical discomfort and annoyance to persons of ordinary sensibilities.
                                    2. Causation Problems
                                                -Is there a link b/t the specific pollutant and the injury the P suffered?
                                                -did that exposure cause the P's condition?(less necessary to show when only looking for injunctive relief)
                                                -is the D linked w/ the pollutant.
                        B. Trespass
                                    -Trespass-the direct physical invasion or intrusion of the P's land by the D, D's agent, or an object that the D has caused to be deposited on the land. General rule that landowner is entitled to an injunction directing the removal of a trespassing object on his or her property.
                                    -only where there is some estoppel due to an unecessary and prejudicial delay on the part of the P, or a refusal on the P's part to consent to acts necessary to bring the trespass to an end, will an injunction be refused.
                        C. Strict Liability
                                    -landowner must demonstrate that a condition or activity qualifies as abnormally dangerous and is in fact the cause of the environmental injury.
                        D. Defenses
                                    -Presecriptive right-P must knowingly acquiesce to the nuisance for a lengthy period of time.
                                    -Latches-enviornmental P should take care not to sit on his rights
                                    -D may argue the P has “come to the nuisance”-majority rule this will not bar a claim
                                    -D might try to shift blame to a prior owner-caveat emptor dictates
                        E. Remedies
                                    -Usually involves a legal remedy(money damages), an injunctive order, or a combo of the two
                                    1. Money Damages
                                                -nuisance remedy can provide monetary relief, while statutory actions provide only an injuctive remedy
                                                -Damages for temporary injuries generally consist of the reduction of usable or rental value of the property for the time the condition existed, together w/ special damages. If damage is permanent, the appropriate measure of his loss is the reduction in the property's market value.
                                                -in order to get punitive, the P must usually establish either a willful and intentional wrong or gross negligence.
                                    2. Injunctive Relief
                                                -when the injury is in a continuing manner, P may seek injunction either to shut down the nuisance or to impose conditions on the D which will lessen the impact on the P's right to enjoy his or her property; may be entitled to injunctive relief even before any actual harm has been suffered.
                                                -Boomer v. Atlantic Cement Co. – Cement plant, declined to issue injuction b/c the plant played an important role in the local economy. Modern approach comes down to a balancing approach of the equities. Factors such as good faith, technological feasibility, and importance of the activity to the local economy all play an important role.
                                    3. Mootness
                                                -if habitat has been completely destroyed before the case is resolved, judge may find the point moot and decline to stop the project since there would be no benefit to the environment from doing that.
            II. Federal Legislation
                        A. Citizen Suits
                                    -Environmental groups take advantage of this
                                    -3 types
                                                1) private citizen vs. citizen, corp., or govt. body for engaging in conduct prohibited by a particular federal statute
                                                2) Private vs. govt. agency for failing to perform a nondiscretionary duty
                                                3) Citizens may sue for an injunction to abate an imminent and substantial endangerment involving the generation, disposal, or handling of waste, reg

blic health (asthmatics, elderly)
                                    -Secondary standards-protect public welfare (visibility, buildings..)
                        -CAA requires states to decide how to control local pollution to meet standards set by EPA in NAAQS
                        -EPA has identified and issued NAAQS for the following six “critiera” air pollutants:
                                    1. Particulate matter-solids or liquids in various sizes formed from chemical reactions produced by burning fuels such as coal, wood, or oil
                                    2. Sulfer oxides-corrosive, poisonous gases when fuel containing sulfur is burned
                                    3. Nitrogen oxides-burning of fuel at high temps which oxidizes nitrogen in the air(typically vehicles and combustion plants)
                                    4. Carbon Monoxide-poisonous gas, incomplete burning of carbon in fossil fuel combustion processes
                                    5. Ground-level Ozone- primary ingredient of smog
                                    6. Lead
                        -each state required to prepare and update a State Implementation Plan(SIP), if state fails to prepare a SIP or is inadequate, the EPA is required to prepare a FIP for that state.
                        -Nonattainment-area is not in complaince
                        -attainment-in compliance
                        B. Toxic Air Pollutants
                                    -1990 amendments to CAA established a separate contorl system for hazardous or toxic air pollutants
                                    -Act contains initial list of 189 toxic air pollutants to be regulated by EPA
                                    -recquires EPA to identify categories of industrial sources for these listed pollutants
                                    -for these categories EPA must establish either technology-based standards and controls or performance-based standards for reducing toxic emissions of these pollutants
                                    -technology based standards: recquired to achieve the maximum degree of reduction in emissions by use of the “Maximum Achievable Control Technology” (MACT).
                                    -performance based standard:company is free to decide how it will reduce its toxic air emissions so long as it meets the level of emissions allowed by regulation.
                        C. Mobile Sources of Air Pollutants
                        D. Reducing Acid Rain
                                    -CAA created a market-based cap and trade approach to achieve emission reductions
                                    -first step was permanent cap on emissions by electric power plants nationwide
                                    -second step applied to all large coal-burning power plants and small ones, govt. allocated pollution allowances to these sources based on past emissions and fuel consumption, plants can only release emissions equal to amount of allowances, if they need more must either trade allowances by buying them from another plant or it must use technology or other methods to control its emissions