Environmental Law Outline

Environmental Law

Kloeckner

Fall 2013

History of Environmental Law

1) 1970’s

a) Movements

i) Came out of the 1960’s grass roots campaigns

b) Statutes:

i) 1970- NEPA

ii) 1970 CAA

iii) 1972- CWA

iv) 1972- FIFRA- banned DDT- pesticides

v) 1974- RCRA- Resource Conservation and Recovery Act

c) Events

i) First Earth Day- 1970

ii) Love Canal- 1979

(1) First real mass carcinogenic toxic tort case- 1st Superfund Site

iii) Three mile island0 1979 Accident at nuclear plant

iv) Catalysts

(1) Post-WWII affluence and suburban development.

(2) Growth of synthetic organic chemical industry.

(3) Transfer of political energy from bitter and divisive Civil Rights Era and Vietnam War to a movement enjoying more widespread support.

(4) Heightened civic-mindedness.

(5) Incrementally changing state and local laws.

(6) Softening industry opposition.

(7) “Silent Spring” by Rachael Carson – Detrimental effects of chemical pesticides on birds.

(8) Increasing scientific information.

(9) High-profile environmental events. E.g., Santa Barbara oil spill; Cuyahoga River fire.

d) Scenic Hudson Pres. Conference v. FPC (1965)

i) First environmental law case.

ii) Established pattern of environmental litigation.

(1) Initiated by ad hoc citizens’ group, which had exhausted other remedies.

(2) Standing was a major barrier, but overcome.

(3) No legal theory under which to argue a violation of a right.

(4) Plaintiffs crafted a procedural, rather than substantive, administrative law argument hoping for reverse and remand.

(5) Illustrated potential of more intrusive judicial review.

2) 1980’s

a) Movements

i) Reagan softened environmental regulation

ii) Focus was to clean up abandoned sites

b) Statutes

i) 1980- CERCLA

ii) 1986- SDWA

c) Events

i) Bhopal, Valley of Drums, Times Beach

3) 1990’s

a) Movements

i) Focus toward volunteer activities

b) Programs like Energy State are made

4) 200’s

a) Continuation of volunteer programs

b) Increased redevelopment in Brownfields

Environmental Economics

1) Three Economies

a) People, planet, & prosperity

2) Triple Bottom Line

a) Economic prosperity

b) Environmental quality

c) Social equity

3) Internalization of externalities

4) Markets for environmental economics

a) Carbon emission trading

Environmental Ethics

1) Morals

a) Should morals be put into the law

b) The problem becomes whose morals should apply

2) Tragedy of the commons

a) Open pasture analogy: each herder has an incentive to add cattle, but the aggregate effect is to render the land unproductive as a result of overgrazing

i) “Freedom in a commons brings ruin to all”

b) Classic Solution

i) The way to classically solve this was to divide the commons, but you can’t divide all the commons

c) Modern Solution

i) Legislate temperance into the law by coercion

ii) Advocates the use of coercive powers of the gov’t to prevent excess pollution of a commons (air, water)

d) Example:

i) Salt Paradigm: cheap to put it on roads, but when everyone does it, it causes long term negative effects

ii) Kills shade trees, salinized drinking water, destroys infrastructure (bridges, light poles), wears heavily on cars

iii) But the economic benefit for businesses that sell the salt is huge

3) Non-Economic

a) Rejects the normative goal of maximization of social welfare, can be either human centered or nature-centered.

i) Human Centered: derive conditions for environmental treatment by reference only to human interests- Nature is only protected because humans value it

ii) Nature Centered: human species has independent obligations toward other form of life, nature must be protected for its own sake, not because of its usefulness to humans

4) The Story of Stuff

a) “You cannot run a linear system on a finite planet indefinitely”

b) A critical vision of consumerist society, primarily American.

c) It purports to expose “the connections between a huge number of environmental and social issues, and calls us together to create a more sustainable and just world.”

Design of Environmental Laws

1) Taxonomic Approach

a) Harm based approach the is media-specific

b) CWA (water), CAA (air), CERCLA (superfunds)

c) Another way would be to do industry specific groupings like Europe

2) Themes & Contexts in Environmental Law Design

a) Pollluter should pay

b) Precautionary principle

c) We should avoid a race to the bottom

i) Cooperative federalism: allows states to set their own standards

ii) Must have a floor so that states don’t have a race to set low standards to encourage investment

d) EPA’s Risk Assessment

i) Hazard indentification

ii) Dose/ Response assessment

iii) Exposue Assessment

iv) Risk Character

e) Citizen Suits

i) ¾ of environmental suits brought by citizen suits

ii) Prevents agency capture

iii) Encourages pluralism to other power players

f) Mitigation & Adaptation

i) Focus on the value of natural resources

ii) Maerging different types of law

iii) Incorporation of human rights into environmental choices

iv) Catastrophe avoidance rather than response

v) Shift from forward thinking control to back end adaptive management techniques

vi) Increase variety & flexibility

vii) Increase reliance on multu-scalar government networks

Tort Basics

1) Tort law is used to do citizen enforcement

2) Can sue the gov’t, the polluter, or both

3) Environmental Reforms to Tort Law

a) Cause come from the Administrative Procedures Act

b) Limitations on Punitive Damages, Reasonable Person expectation for damages

4) Boomer et. al. v. Atlantic- Cement Factory

a)