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Environmental Law
University of Toledo School of Law
Kilbert, Kenneth

Environmental Law Outline

Fall 2010

General Ideas

1) Environmental Law is an outgrowth of centuries of common law doctrines that seek to protect people and property from harm caused by the actions of others.

Ø “Tragedy of the Commons”- People try to take advantage of common resources for own gain. E. Law seeks to remedy this.

2) Modern environmental law began in the 1970s through the creation of the EPA, clean water act, and the original earth day.

Ø Proved very successful water and air quality much improved. Lead decreased in humans. Toxic chemicals properly disposed of

Ø Attitudes haves changed, people more cognizant of the environment

Ø E.Law helps to promote new technology

3) However, disagreements on how environmental goals should be achieved

Ø Reform of E. Law

o More flexible, state/local preferred

o More market based

Ø Others favor stronger laws by wither

o Either vigorously imposing current law, or

o Making new laws to fill in the gaps

4) Also, low hanging fruit have been taken.

Ø People need to act together; tough sell

Ø Economic sacrifice by few or by many.

5) Environmental Justice is the fair treatment of all people when it comes to environmental laws and regulations.

· Ex: Plants with much pollution and garbage disposal sites clustered in low income areas and minority areas

o Due to people of low income having less influence, lesser ability to worry about environmental issues

I. Temporal Overview

(i)Before World War Two

· Environmental controls very rare; those that seemed to address environmental concerns were created for economic and health concerns

o Ex: white phosphorus used in making matches was created to decrease disease.

(ii) Post -World War II

· Feds started to fund research dealing with pollution problems

· Modern environment movement began w/ the book Silent Spring(DDT)

(iii) 1970s

· Regulatory framework is erected

· EPA created in 1974 by Nixon

· NEPA-Required gov’t agencies to assess environ. Impact and consider alternatives otherwise project could be stopped.

· Clean Air Act and Clean Water Act created; among others

(iv) 1980s

· Refined statues, EPA has to vigorously enforce.

· Exxon-Valdez created liability caps, strict liability for oil spills, double hulled ships


· Attempts to weaken statues-Failed

· However, Rep’s made it procedurally harder to pass actions

II. Common Law Roots

(a) Private nuisance

i. General

· Interference of the private use and enjoyment of a private party’s land.

o Used by individuals to gain individual compensations and force polluters to discontinue interference

· Not very well suited for Enviro. Cases unless there is one source.

ii. Generally actionable for:

(a) Substantial interference with use or enjoyment of private property that is

(b) Unreasonable interference standard. Balancing test weighed nuisance with the value and utility of D’s actions.

(c) Showing of significant harm must be made(unlike trespass)

Ex-Pig sty interfered with other’s enjoyment. Considered actionable. Have to shoe significant harm of harm. Pig sty’s utility doesn’t matter (strict liability approach)

iii. Remedies

1.Compensatory damages are given for reduction in market value caused by the nuisance, together with any special damages, such as medical expenses or costs of shielding the plaintiff’s property from the nuisance.

2.Injunctions require courts to balance interests, weighing the plaintiff’s need for injunctive relief against the social utility of the defendant’s activity and the costs to the defendant. Courts have broad discretion due to their inherent equitable powers. But usually require a showing of immediate threat of irreparable injury.

a. Ducktown: Where a copper smelting factory’s smoke ruined a farmer’s crops and home, damages were granted “as an absolute right, where injury is shown,” but an injunction was denied largely because of the economic costs of shutting down the defendant.

b. Example of Discretion: The “Conditional Injunction.” “The court in Boomer issued a conditional injunction barring the operation of a cement plant … until the plant paid surrounding residents the full value of their permanent damages if the plant continued operation.” Pay damages or stop operating plant

(b)Public nuisance

· Private party or government seeks relief for action that interferes with common rights of the general public.

o Tries to protect the public (public health and safety) Good tool for the gov’t to use.

i. Actionable for:

(1) Significant interference with the public health, safety comfort, or convenience;

o Special injury/significant harm is the initial hurdle.

§ Special Injury rule requires the individual to prove that the his/her injury must be distinct from the environmental injury to all persons in the area in order for the individual to be granted an action of pub nuisance

(2) Causation

(3)Unreasonable interference is of a continuing nature or has produced a long-lasting effect on the public right that the actor has reason to know will be significant.

o Ex-Discharge of pollutants in public waterways


o Based more on injunctive relief( conditional relief also used)

§ Ex: Missouri v. Illinois: Missouri tried to enjoin Illinois from dumping waste into the Mississippi. However, couldn’t prove causation(too remote), so therefore court ruled for Illinois. Illustrates how causation can be a bi

:Identifies hazards

o Usually congress sets regulations.

§ Ex:CWA-tech based standards to adopt specs and specific tech

§ Criteria to keep in mind when setting regulation options:

· Legally passable

· Efficient

· Equitable

· Promote tech advancement

V. Preventing Harm in the Face of Uncertainty

(a) Enviro. Law is more about false negatives

· (i.e.: Better to regulate 9 innocents to make sure you get 1 guilty, polluting party)

· Precautionary Principle: Halt harm, better safe than sorry.

· Agency bears burden of proof, but scientific certainty is not required.

o Ex: Reserve Mining v. EPA: Taconite fibers(similar to asbestos) was being ingested by people of a near-by town. Inconclusive proof that it was causing diseaseàCourt held that risk of harm still justified inunction(though in this case gave time to adopt new tech to avoid injuction)

o Ex: Ethyl Corp v. EPA-EPA had probable cause to believe that . Auto companies didn’t belive there was conclusive proof of harm. However, CAA is precautionary: “will endanger” language doesn’t require actual injury nor scientififc proof

(b) Risk Assessment

· Three Steps

1. Hazard identification

2. Dose-response assessment(how hazardous is substance; how many more people will get sick if substance increased)

3.exposure assessment

-how much of a substance will a person be exposed to


-ingestion (drink,eat)

-dermal contact (touching)

4. risk characterization

· Ex: Cost benefit analysis created in Industrial Union(AFL-CIO) v. Am. Petro Institute: 10 PPM of beneze was thought by the EPA to cause disease; wanted down to 1 PPM to protect health.

o Court struck b/c no risk assessment made

o Thus, court delineated that: Threshold of a significant risk needs to be reached then risk/cost analysis can be conducted

o In this case 1PPM didn’t reach the thresgold of sig. risk.

· NOTE: Sig. risk needs to be shown, DON’T need to show scientific uncertainty. JUST show conservative assumption by scientific evidence that significant risk exists(agency’s burden of proof). THEN, cost/benefit-risk assessment analysis occurs.