Environmental Law Outline

Environmental Law Outline, Spring 2011, Professor Mcallister
 
I. Common Law Origins and Administrative Law Principles
Chapter 1, The Nature of Environmental Problems: CB 5-28
A. Pollution
1. Air Pollution Sources: Polluted when undesirable particles and gases are added to the basic combination of nitrogen and oxygen. CAA divides all sources into 2 categories: Mobile and stationary. Mobile = automobiles, trucks trains, airplanes, etc. Stationary = factories, power plants, etc. Stationary are easier to target for regulation.
Indirect Source is “any faculity, building, structure, installation, real property, road, or highway which attracts, or may attract, mobile sources of pollution.” 42 USC §7140(a)5(C).
Left to local/state governments prior to 1955 Air Pollution Control Act.
Clean Air Act initially adopted in 1963
2. Water Pollution
Regulated by CWA, SWDA
Point sources and nonpoint sources. (see CWA outline).
3. Solid and Hazardous Wastes 
Municipal waste biggest source.
Federal Superfund Program
4. Toxic chemicals
B. Overuse of natural resources
Our current rate of use exceeds sustainable levels.
Renewable v. nonrenewable sources.
Water most valuable/basic/used.
C. Ecosystem Degradation
Humans have altered the natural world.
Endangered Species Act helps mitigate.
D. Implications For Environmental Law.
Lazarus factors. 1. Irreversible, catastrophic and continuing injury; 2. Physically distant injury; 3. Temporally distant injury; 4. Uncertainty and risk; 5. Multiple causes; 6. Noneconomic, nonhuman character.
Chapter 2, Common Law Solutions: CB 31-49, 49-67
A.      Common Law Approaches – From Strict Rights to Balance
Tort actions can attack a problem with specificity that generic regulations may overlook.
1. Trespass à Intentional physical invasion of someone else’s real property. Can be useful when the D is doing something physical to P’s land, such as polluted water seeping onto P’s land. However, with smoke or odors this is very difficult to prove because it lacks the real physical nexus.
2. Nuisance à Most frequently pled common law tort action in environmental litigation. Traditionally protected landowner’s right to use and enjoy property. Can come in two forms: Public/Private.
Both: P must prove that D’s activity unreasonably interfered with use or enjoyment of a protected interest and caused substantial harm. If it affects physical environmental condition of land, usually substantial. Potential harm can meet requirement if P shows it is significant and probable. *Note, sometimes difficult to est. because of the time between the polluter’s acts and the interference. (attenuated). Trier of fact considers: whether act is unreasonable (balance social utility against the harm created); also considers: local conditions, right of P to use the protected interest, whether D could have prevented the activity that caused the harm.
Public:  Protects from interference a “right common to the general public.” It is an “unreasonable interference with a right common to the general public.” Rest.Torts.2nd.  Typically only public officials can sue: exception for private party to assert public claim must show “harm of a different kind from that suffered by other members of the public.”
Private: “a substantial and unreasonable interference with the private use and enjoyment of land”
Nuissance doesn’t have to be physical invasion like trespass
3. Negligence à 1. Breach 2. Of a legal duty 3. That causes 4. Damages.
4. Strict Liability à Inherently dangerous activity or abnormally dangerous conduct.
B. Promise and Limits of CL Solutions
1. Comon Law Tradition
Madison v. Ducktown sulphur, Copper & Iron CO. (37) Trying to get an injunction to stop burning b/c it was destroying trees/farms/etc. While the court is sympathetic for the plaintiffs and admit there is a nuisance, but there isn’t an injunction because of the value of the company, jobs, etc. The plaintiffs got damages but no injunction.
Balancing Test: Costs to ∆ (and society) of issuing the injunction v. costs to ∏ of not issuing.
Note: nuisance is limited b/c it puts burden of proof on the ∏ (like other common law torts).
Another problem, nuisance claim won’t lie until AFTER the harm occurs.
Georgia v. Tennesse Copper Co.
Missouri v. Illinois (41) Chicago increases water flow from Chicago down stream to St. Louis. Decreases sewage in lake Michigan, but increase sewage down stream. Substantially improved water quality of Chicago and Chicago River, but decreased water quality of river in St. Louis. Missouri asks for injunctive relief to stop sewage from going down stream. Typhoid Fever increased in St. Louis. P argues that direct cause of epidemic is Chicago’s action. Plaintiff loses injunction.
Why did they lose and how is this different than the other case. Scientific evidence of cause and affect of Typhoid uncertain, not convincing. Distance between cities and the time bacteria would live long enough to be the cause.
Neither P nor D is conclusive, battle of experts. Plaintiffs own pollution could also be cause, how much cause-Clean hands doctrine- why should court provide you relief when you also have dirty hands?
2. Common Law Goals and Coase
Nuisance problems are reciprocal. What does this mean? No wrong doer and victim, rather a conflict of interest between use of goods or property. The right of both is equitable in nature and one should be able to utilize their right and should pay the other when their liberty is cost the other.
To avoid the harm that has the most economic cost. 
Coase Theorem: property concept that if polluters and those affected by pollution can freely bargain with each other, an economically efficient mount of pollution will occur regardless of the initial allocation of property rights.
Probably wont be able to freely bargain b/c of transaction costs.
3. More Recent Applications of CL
Boomer v. Atlantic Cement Co. (49) F. ∏ claimed that ∆ ’s $45mill cement plant caused injury to their property by producing dirt, smoke and vibrations. ∏ sought damages/injunction. Court weighed economic advantages of the plant vs. closing the plant and wouldn’t grant the injunction but offered permanent damages to ∏.
Significant b/c (1) Offered ∆ a choice of remedy, usually belongs to aggrieved ∏ (2) awarded future damages. (3) Ct. gave preference to state statutory scheme regulating pollution over nuisance common law, which would require injunction. Nuisance shown.  Injunction was denied but money damages were paid. 
This overturned earlier precedent that always granted an injunction.  Now it balances equities.  Injunctiv