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Environmental Law
University of Mississippi School of Law
Case, David W.

Environmental Law
Case – Spring 2010
       I.            Introduction: Environmental Values and Policies
a.       Policies, Problems, and Values
                                            i.      Traditional tool of environmental protection has been “command-and-control”
1.      “Command-and-Control”: A top-down, hierarchical regulatory form where government commands compliance with detailed, source specific performance standards (enforced through permitting systems), OR requires uniform technology based controls for certain types of polluting activity
                                          ii.      The concept of “reform” of environmental regulation is a pervasive theme
                                        iii.      Establishing environmental policy in the face of scientific uncertainty relates to the attempt to reduce risk
1.      Public perceptions of “risk” often differ greatly – and sometimes enormously – with expert assessments of risk
2.      Risk: the probability of suffering harm or loss
                                        iv.      Economic Inefficiency
1.      The primary criticism of current governmental regulatory system is that goals and policy are established without full consideration given to the economic costs involved
2.      Private industry in the US spends over $200 billion annually on pollution controls
b.      Economics and Ecology
                                            i.      Collective Action Problem
1.      Economists view all individuals as rational utility maximizing economic actors
2.      In theory, individuals are motivated to maximize their individual gain, or to take action that results in a net gain to themselves, known as “rational economic behavior”
3.      This dynamic drives the “tragedy of commons”, where each individual overuses common resources to the point of over-congestion and overuse, yielding negative returns
a.       This creates a collective action problem – society must find ways to either force rational actors to internalize external costs, or to otherwise intervene to protect common pool resources
                                          ii.      Environmental Economics
1.      The environment is not a separate entity from the economy; a change in one affects change in the other
2.      The real economy in which we all live and work is an open system; in order to function (provide goods and services or wealth for human operators), this system has three basic processes:
a.       Extraction of resources, or raw materials and fuel, from the environment
b.      Processing/Fabrication of these resources, or turning them into end-products for consumption, and
c.       Consumption
                                                                                                  i.      These basic processes generate waste streams that find their way back into the environment (air, water, and land) causing biological or other environmental changes (contamination) and/or harm or damage to animals, plants, and their ecosystems (pollution)
3.      Economics views the generation of waste streams as an external cost, or an externality and a primary example of market failure
a.       Extraction, processing/fabrication, and consumption all produce waste streams
                                        iii.      Internalizing the Externality
1.      The goal of environmental economics is to find public policies that will induce the generator of an externality to consider the external costs, or to internalize it
                                        iv.      Policy Options
1.      Use the Court System
a.       Common law compensation system for redress of injuries to person or property, especially through nuisance law and other tort law
2.      Direct Regulation
a.       Command-and-control policies
                                                                                                  i.      Performance Standards: establish emission standards and limits
                                                                                                ii.      Technical Controls: require installation of pollution control equipment
3.      Market Based Approaches (Price Instruments)
a.       Attempt to give polluters economic incentives to control emissions
                                                                                                  i.      Pollution taxes on emissions or polluting input
                                                                                                ii.      Subsidies on reductions of emissions, or payment as a “reward” for reducing a unit of pollution from an initial level
                                                                                              iii.      Marketable Permit Systems: create markets in certain permits to pollute
                                                                                              iv.      Information disclosure
                                          v.      Rule of Unintended Consequences
1.      Because ecosystems are all interconnected, seemingly simple actions typically will have non-obvious and unintended consequences that may culminate in a threat to ecosystem stability
2.      Environmental science assumes that every new technology introduces undesirable and commonly unanticipated impacts
                                        vi.      Who speaks for the trees?
1.      The Lorax does, that’s who, bitch.
    II.            Environmental Law: A Structural Overview
a.       Common Law Roots
                                            i.      Tort Causes of Action: a form of regulation that regulates the conduct and behavior of individuals used to create a future desire to change behavior and conduct
1.      Public Nuisance
2.      Private Nuisance: wrongful, nontrespassory interference with a person’s use and enjoyment of his property
a.       Allows for the possibility of injunctive relief because the damages are continuous and hard to calculate (if you don’t stop the nuisance, then there is a new harm or tort everyday)
b.      Questions to ask:
                                                                                                  i.      Can you prove liability? You must prove causation of an injury
                                                                                                ii.      If you can prove injury, what is the remedy? If you never stop the nuisance, there will be no way to settle between the claimants
1.      Ducktown: If the value of relocation of the land owners and the property is more than the value of the company, then it will be forced to stop; company may have to pay to relocate
b.      Statutory Law, Standing, and Constitutional Authority
                                            i.      States may set hired standards than the federal statute, but the minimum of the federal act must be met
1.      Federal statutes act as the floor of the required quality, and states may not go below it; if they do, federal law will preempt it
2.      States can decide how much stricter they want to be
                                          ii.      Access to Federal Court: three necessary prerequisites for a plaintiff to get access:
1.      The court must have subject matter jurisdiction
2.      The plaintiff must have a private right of action
a.       Two primary sources to demonstrate that Congress intended to provide plaintiffs a federal remedy to challenge an administrative agency action:
                                                                                                  i.      Federal Statute: expressly grants the plaintiff a private right of action, or contains language along the lines of “any person may commence a civil action on his own behalf”, OR
                                                                                                ii.      Administrative Procedure Act: establishes a “cause of action” for any person suffering a legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute (5 USC § 702)
3.      The plaintiff must have standing to sue
a.       Even where Congress has conferred a private right of action, plaintiffs still must independently satisfy standing requirements
b.      The standing doctrine is a constitutional limitation on the ability of Congress to grant private rights of judicial review stemming from Article III which limits the power of the federal judiciary to resolution of “cases” and “controversies”
c.       Four basic requirements for standing:
                                                                                                  i.      The challenged action must cause the plaintiff some actual or threatened injury-in-fact
1.      Injury-in-fact: an invasion of a legally protected interest which is –
a.       Concrete and particularized, or affect the plaintiff in a personal and individual way, and
b.      Actual or imminent, not conjectural or hypothetical
2.      The party seeking review must be himself among the injured, and the injury-in-fact test re

he subject of public notice and comment
3.      All rules issued by the federal agencies must be sent first to Congress for review before taking effect
4.      Congressional Review Act contains special fast-track procedures for Congress to enact resolutions that disapprove the rules
5.      Agencies must provide for waivers or reductions in civil penalties imposed on small business to ease the burden of environmental regulatory enforcement
                                        vi.      Presidential Oversight of Rulemaking
1.      Executive Order 12, 866 (Clinton) – subjects all significant EPA regulatory actions to Office of Management and Budget review, including detailed cost-benefit analysis of major rules
2.      Executive Order 12, 898 (Clinton) – Requires review of agency actions and rules for purposes of incorporating environmental justice strategies
                                      vii.      Judicial Review
1.      5 USC § 702: a person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review of it
a.       This provision can provide constitutional “standing” (legal right to review) if another statute does not provide such a right to review of agency action
2.      Scope of Judicial Review
a.       5 USC § 706: the reviewing court shall:
                                                                                                  i.      Compel agency action unlawfully withheld or unreasonably delayed
                                                                                                ii.      Hold unlawful and set aside agency action, findings, and conclusions found to be –
1.      Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance to the law
2.      Contrary to constitutional right, power, privilege, or immunity
3.      In excess of statutory jurisdiction, authority, or limitations, or short of statutory right
4.      Without observance of procedure required by law
5.      Unsupported by substantial evidence in a case subject to sections 556 and 557 or otherwise reviewed on the record of an agency hearing provided by statute, or
6.      Unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court
3.      Chevron Test for Statutory Interpretation by Agency
a.       Step 1: Is the statute silent or ambiguous on the precise interpretive question at issue?
                                                                                                  i.      If not, the court must apply (and the agency must follow) the unambiguously expressed intent of Congress and the inquiry ends
                                                                                                ii.      If yes, then move to Step 2
b.      Step 2: Is the agency’s interpretation based on a permissible (reasonable) construction of the statute?
                                                                                                  i.      If yes, the court defers to the agency’s interpretation
                                                                                                ii.      If not, the court will proceed to provide a reasonable interpretation
1.      NOTE: the agency rarely loses if it gets to Step 2
4.      Justifications for Agency Deference
a.       Gap Filling
                                                                                                  i.      Congress has made a legislative delegation of authority to the agency to make policy judgments to fill gaps in the statute