Subject: Environmental Law
Professor: Timothy Duane
Semester: Fall 2014
NOTES REGARDING FINAL EXAM STRUCTURE
• Basic Overview of Key Themes of Course
• There's 3 or 4 main sections
• 1) Broad Overview Material about how society and the legal system in partciular deal w/ enviro problems. First 3 classes are about this (through CL)
◦ The CB anaysys and regultarory review from 10.9 10,16 class is also about broad themes about how much regulation to have. Similar to Hand formula.
• 2) Basic structure of admin law in our fed system. 2 components
◦ 1)) bread and butter: how do courts reveiw admin actions. Relationship between 3 branches of gov. and what is the standard of review under Chevron in its simplest form (we don't have to get in to too specific of details)
▪ Basically understand the principles of Chevron, the theory behind it, and when it applies (step 0)
◦ 2) Think of Chevron about separation of powers (who gets to decide what when) But this 2nd component is a vertical structure: relationship between Fed and State. Included in that I would put The relationship between international and nation. So put the
▪ 9.4. 9.6 9.9 9.16 and 11/25 are all in this broad category of the admin state.
• 3) Sepcifici statutes. Don't think of them as statutes
◦ CEQA NEPA attempt to impose disclosure of info. Info is the tool.
◦ ESA: prohibitions or road block approaches. Another appraoch. Even then there's safety vaulves.
◦ CAA: emphasises technology but also harm.
◦ CWA : Emphasises harm but also includes tech
◦ So there's 4 broad appraoches: info, prohibition or roadblock, end states (like harm imposed of bad air), Focus on technologies.
◦ In each of those cases we don't need to be an expert on statute but we do have to know the diff in terms of what they illustrate as an approach to admin law
◦ ** please give example of statute that emphasises disclsoure of iffo: NEPA and CEQA how are they different.
◦ We didn't spend much time on CEQA = it's a deep chamber of complexity
▪ just know that CEQA and NEPA are diff in important respects. CEQA requires mitigation (you have to study impacts then reduce). NEPA doesn't require mitigation. P in NEPA is policy act not protection.
• 2 outliars: public trust doctrine and constiutitonal limits on taking.
◦ These are extra statuatorial obvioulsy. Public trust has CL rules but it involves questions of soverignty and whether the public can abdicate responsibilty.
◦ These are the bookends on the relm in which environmental law may operate. CL to statuatory. PUblic trust puts limits on how much harm you can do to environment. On the other end there are protections of private property: Takings.
• What remains? the 3 classes 11/13 18 and 20: really fit well under statutes that highlight diff approaches to environmental law.
◦ Ex: Strict Liability is part of CERCLA.
◦ We all see market entry controls. A lot of it has to do with info. NEPA n CEQA are about giving gov infomation, market entry controls give info to consumers.
• Finally international comperative law fits in to the broader structure. Who gets to decide, who reviews who, and is international law even law.
Questions
• In CEQA we didn't go in to many cases, but in the others we did so you should have a familiarty witht eh major cases. For example, ESA you would know Ten. Hill and Sweet Homes v. Abbot. 1st is about Taking and 2nd is about the definition of habitat. But there's a serious of more incidental cases you probably wouldn't need to know to parse your way through a problem.
• You may want to cite cases to distinguish or draw parallels to .
• Prof will make up statutes so students don't get bound up in a particular statute. You will be able to look that up as an attny. So his test isn't about that. Don't think about CAA and CWA as statutes, but as approaches to environmental law.
• There will be something that assess each of the broad areas described. Some will be broad themes, some will be about applicaiton of facts (probably a Chevron situation) In may respects that's the bread and butter of practice in this field.
• Prob. broad overview where asked to compare contrast diff. approaches. Pick 3 of following 5 discuss how they differ.
• Then maybe something in more debth about bookends or CL things we've talked about.
• The distinction is that some are broad discussion of broad law and policy well others are applicaiton of particluar fact patter.
• IRAC is a bit harder to apply when dealing with statutes
◦ ex: what deference applies
• IF we get a fake statute it might say ignore everything about CAA
• This casebook leans heavily towards the protectionsit view and another textbook he uses thinks markets are the solution to everything. Prof. agrees more with this casebook but wants us to be familar with both.
◦ We don't have to know details of coarse but if there's something
1) Broad Overview about how society and the legal system in particular deal with environmental problems
• Themes in Environmental Law and Policy (1-66) – Class 1
• Environmental Protection at CL: Torts (69-100) – Class 2
• CL, Continued: Causation and Remedies (101-138) – Class 3
• CB analysis and Regulatory Review (571-606) – Class 13
• Tradeable Permits and Economic Incentives (607-646) – Class 14
2) Basic Structure of Admin Law in our Fed System
• How do courts review administrative actions – Relationship between 3 branches – Standard of Review
◦ Basically understand the principles of Chevron, the theory behind it, and when it applies
• Vertical Structure –
◦ Relationship between Fed & State
◦ Relationship between international and individual nation-states
Chapter 1 – Basic Themes in Environmental Law
A) THE ENVIRONMENTAL PERSPECTIVE
• The potential costs of environmental risks are great and the benefits are generally modest.
• False positives v. False negatives.
• 3 Key questions to ask when doing an environmental analysis
◦ 1) What are the true benefits of the proposed project or program?
◦ 2) What are the true full costs and consequences?
◦ 3) What are the feasible alternatives and their comparative C and B’s?
• How do you define an acceptable risk level?
◦ Expected value approach: balances the cost of a false negative by it’s probability occurrence against cost of false positive x probability of occurrence.
• Precautionary principle: if a thing is potentially very dangerous and alternatives exist, why wait until all the studies are complete before acting to limit exposure.
• Birds and Turds
◦ Birds: The Green Environmental Law
▪ Usually tied to public lands and resources.
▪ DOI and forest protection take care of this.
▪ Characterized as elites. Overwhelmingly white and wealthy.
◦ Turds: Brown environmentalism (More important)
▪ Used to be called public health. Things like sewage and refrigeration.
laim
◦ 1) Conduct by D that provides the basis for liability
◦ 2) Causation of harm to P by D’s conduct.
◦ 3) Substantial injury to the P
• Trespass v Nuisance: What property right is being interfered with?
◦ Right to exclusive possession —> Trespass
◦ Right to use and enjoyment —> Nuisance
• Trespass: An unlawful interference with one’s property.
◦ a) Direct Physical Invasion or intrusion on the P’s land by D.
▪ i) May occur when party’s actions have resulted in pollutants entering onto another’s property.
▪ ii) Particle size: the particles do not have to be visible
◦ b) Protects the P’s interest in exclusive possession of property .
◦ c) test: p must show
▪ 1) an invasion affecting an interesting the exclusive possession of his property.
▪ 2) an intentional doing of the act which results in the invasion.
▪ 3) reasonable foreseeability that the act done could result in the invasion.
▪ 4) substantial damages.
◦ d) strategic reasons to bring trespass claim.
▪ longer SOL
▪ encourages the granting of injunctions by emphasizing the act of un-conesented invasion.
• Nuisance
◦ Private Nuisance: an unreasonable use of property by one person that causes injury to another’s use and enjoyment of their land
▪ Requirements: 1) D’s activity unreasonably interfered with the use and enjoyment of a protected interest and 2) D’s activity caused P substantial harm.
▪ Nuisance per se: the nuisance exists purely because of what it is/does. Has nothing to do with the way it is being done.
▪ ex: storage of dynamite in residential area, oil refinery in residential areia.
▪ Can be abated without any proof of the specific way the act is being done.
◦ Public Nuisance: D’s conduct unreasonably interferes with a right common to the public.
▪ Filed by the government.
▪ The state may maintain a public nuisance action against private D’s to compel payment for damages for injuries caused by the D or their agents.
▪ Private Public Nuisance Standing: An individual can only file a pub. nuisance claim if he can show special injury distinct in kind and not just degree from public as a whole.
▪ special damages/injury requirement can be met by showing injury to personal health in many jurisdictions.
• Remedies
