Environmental Law Outline
I. Perspectives on Environmental Law and Policy
a. Why do we need Enviro Law?
i. There is a gap in the common law
ii. Used to rely on law of nuisance
1. Must balance things that are different such as safety v health or economics
b. Problems in private law:
i. Govt must force actors to abide
1. Detroit fuel emissions example
a. Detroit would not follow fuel emissions
2. Multiple Polluters
a. This leads to proof issues
3. Toxics
a. There is no safe level
c. Why do we care?
i. Aesthetics
ii. Future generations
iii. Scientific
iv. Utilitarianism
1. Maximize resources
d. Challenges for Congress in Environmental Law
i. Information in understanding what is there
1. How do you set standards without information?
a. Who knows the most about the product? à the company who makes it
b. Who has the least incentive? à the company who makes it
2. Different types of exposure yield different results
a. Air, water, timeà info is spotty
ii. What is safe?
1. What if there is no safe level?
a. Don’t even regulate
2. Do we set levels to the most sensitive person or someone else?
3. Statutes are written uniformly
a. No difference between Los Angeles and Montana
4. Enforcement
a. Someone has to check
5. How forward looking should we be?
6. Complexity
7. Differences among industries
8. Deadlines
e. Types of Statutes
i. NEPA
1. A “Think Statute”
2. Forward-looking planning statute to look at enviro impacts
3. Does not tell you to pick environmentally friendly option
a. Just introduce enviro thinking into planning for the federal government
4. Govt would not consider enviro impacts if the statute was not there
5. Not an outcome statute
ii. Clean Air/Clean Water Act
1. Command and control statutes
2. Set standards
3. Forward-looking
iii. RCRA/CERCLA
1. Backward looking
2. Management/Liability statutes
iv. TSCA/FIFRA
1. Labeling statutes
2. Testing and registration component
3. Cost-benefit
f. Some repercussions:
i. Charge fee for pollution
1. Creates licenses
2. Can be used incrementally
ii. Subsidize
1. Costs less (subsidizing improvement)
iii. Permit
1. Get a permit to pollute
2. Multijurisdictional problems
iv. Offsets
1. Can pollute more if they offset other pollution sources
2. Does not make a benefità just a constant
v. Bubble
1. Intra-source
2. Put “bubble” around a source
a. If you modify a source, look at as a whole, shut something else down to keep net pollution the same.
g. Knee of the Curve
i. As reduction goes up cost does too. Business wants to cut off that most expensive last few percentage of pollution.
ii. Wants government to regulate to the knee of the curve
iii. Govt usually resists
1. Rules should not be based on efficiency, but on safety
2. Govt tends to err on the side of safety
II. Constitutional Issues in Environmental Litigation
a. Sierra Club v Morton
i. Who has standing to challenge an environmental statute?
1. Court explained what “injury” wasà not just economic
a. Could be aesthetic or recreational
2. Derived from Art III – Case or Controversy
a. Injury in fact (not just “right to enjoy”)
i. Constitutional
b. Traceability
i. Must be fairly traceable
ii. Causation
c. Redressability
i. Awarding remedy makes you whole
ii. Will it do any good?
1. Hints on merits
ii. An organization can have representational standing if one of the members was injured in fact
1. Some of its members would otherwise have standing in their own right
2. The interests looking to be protected are germane to the organization’s purposes.
3. Neither the claim asserted nor the relief requested requires the participation of the individual members in the suit
iii. Informational Standing
1. Govt conduct which allegedly deprives a public interest organization of information or interferes with its educational or academic functions constitutes injury in fact for standing purposes.
iv. Public Interest
1. p. 96
v. Victory of the Case:
1. The definition of injury was expanded
a. Need a personal stake
i. Injury in fact was to ME
b. Injury could be more than economics
c. Not quantified, just that harm exists
d. Also must show imminence of harm
b. Lujan v Defenders of Wildlife
i. (Claimed govt did not consult on endangered species).
ii. Problem with the injury was the timing, harm was not imminent. “Some day you will see the animals is not good enough”- need a date.
iii. Court was tightening the ruing in Morton
iv. Rule:
1. The P must have suffered an injury in fact—an invasion of a legally protected interest which is
a. Co
n grant exceptions (God Squad)
d. Definitions § 3 p. 187
i. Conserve
1. Use everything necessary so its not necessary anymore
ii. Critical habitat (5)(a)
1. Geographic area
iii. Endangered Species
1. Must be endangered throughout all of a significant portion of range
iv. Secretary
1. Interior or Commerce
v. Species (16)
1. Definition is partly scientific and partly not
2. Problem
3. Regulatory problem scientifically
vi. Take (19)
1. Not like imminent domain
2. Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect
e. Determination of Endangered Species (Major Part) § 4
i. How species get listed—factors (a)(1)(A-E)
1. Main one is habitat destruction
2. Commercial
3. Disease
4. No regulatory mechanism
5. Other natural and man-made
ii. (b) Basis
1. Best scientific data available
2. Use the best data you’ve got
f. Interagency Cooperation § 7
i. Makes agencies work together
g. International Cooperation § 8
i. Finance protections overseas
h. Prohibited Acts § 9
i. Enforcement—what you can’t do
i. Exceptions § 10
i. Burden of proof switch—the burden is on the violator to prove that he meets an exception.
1. Assume guilt
ii. God squad committee can grant exceptions
j. Penalties
i. Reduced level of intent- just act knowingly
k. Cases
i. GDF Reality v. Norton
1. Commerce Clause
2. YES, govt can protect the environment under the commerce clause
3. Aggregation is enough for commerce
4. Commercial Nexus
a. Must deal with commerce or any sort of economic enterprise, however broadly one might dine those terms.
ii. Babbitt v. Sweet Home Chapter of Communities for Great Oregon
1. Challenge of Secretary’s definition of “take”
2. Lots of deference to the agency when a regulation is passed defining the statute.
a. Difficult to overturn agency on substantive issues, better on procedural
b. Deference given to regulators/agency
