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Environmental Law
University of Toledo School of Law
Kilbert, Kenneth

Environmental Law Fall 2011 Kilbert

Common Law Roots

I. Nuisance

a. Private Nuisance

i. Generally actionable for (a) substantial interference with use or enjoyment of private property that is (b) intentional and unreasonable or actionable under rules imposing strict liability on those engaging in abnormally dangerous activities; (c) a showing of significant harm must be made.

ii. 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. 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 big problem.

c. 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.”

b. Public Nuisance

i. Defined as “an unreasonable interference with a right common to the general public.” 3 factors to determine if unreasonable: (1) involves a significant interference with the public health, safety comfort, or convenience; (2) is illegal; or (3) 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.

ii. Missouri v. Illinois: MO sued IL over sewer dumping, alleging bacteria could be reaching their waterways. Court denied relief, reasoning that injury was just too remote and tenuous.

iii. State Sovereignty Issues. Tennessee Copper: GA sued corporation for gas discharges and Supreme Court grants injunction, stating, “If the State has a case at all, it is somewhat more certainly entitled to specific relief than a private party might be.” States have a right & duty to protect its land, air, & water.

c. Trespass: Injunctions available when defendant’s activity constitutes an actual physical invasion on plaintiff’s property. This is strict liability; no state of mind need be shown.

II. The Precautionary Principle.

a. Reserve Mining: Even though lower court was held to have abused its discretion and remedy was therefore reversed, the court concluded that CWA provision authorizing action where discharges “endanger … the health or welfare of persons” was sufficient grounds for EPA regulation, even though there was basically no showing that asbestos fibers in Great Lakes waters poses a health risk.

b. Ethyl Corp: Court agrees with EPA interpretation of “will endanger” as “presents a significant harm.” ”Where a statute is precautionary in nature, the evidence difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge, the regulations designed to protect the public health, and the decision that of an expert administrator, we will not demand a rigorous step-by-step proof of cause and effect.”

c. But See The Benzene Case: The Court held that statutory language requiring “significant risk” means agency (here OSHA) must first find such a risk, which was not justified by the evidence here.

III. Legislative Impact on Common Law

a. Federal Nuisance. Milwaukee I “delegated jurisdiction over federal common law nuisance actions between states (like Missouri) to the federal district courts.”

b. Federal Preemption. Milwaukee II: Federal nuisance actions involving water pollution are preempted by the Clean Water Act.

c. State Preemption and Choice of Law. Ouelette: State nuisance suits are not preempted by federal legislation, but the state law of the defendant must be applied.

Constitutional and Administrative Concerns

I. Standing

a. Massachusetts v. EPA: A litigant must demonstrate (a) that it has suffered a concrete and particularized injury that is either actual or imminent, (b) that the injury is fairly traceable to the defendant, and (3) that it is likely that a favorable decision will redress that injury.

i. Held, Massachusetts had standing to challenge EPA’s denial of a rulemaking petition (regarding Carbon emissions from vehicles).

1. Injury. Special Rules: MA argues its coastline could be affected by global warming

a. “Special Solicitude:” the Court grants “special solicitude in our standing analysis” because the petitioner is a state and has interests in preserving its territory.

b. Procedural Standing: “When a litigant is vested with a procedural right (here “the right to challenge agency action unlawfully withheld, under the APA), that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.”

2. Causation: Held that even though car emissions is only one contributor to gases, it’s still sufficient for standing purposes. Insignificance of contribution is irrelevant.

3. Redressability: Held that harm of rising seas would be “reduced to some extent” if relief sought is received, and that’s enough.

a. Steel Co.: No standing under EPCRA for acts that have been cured between defendants’ receipt of intention to sue and the date of plaintiff’s filing.

b. But Laidlaw: Damages paid to government is sufficient redressability for a private plaintiff because of the penalty’s deterrent effect.

b. Representational Standi

vate entities equally.

i. Note this allows states to contract only to in-state private entities. The dormant commerce clause prohibits statutory regulations that direct private actors to behave in a certain way; it does not prohibit the state from being a market actor itself.

V. Preemption: Federal law may preempt and therefore prohibit state legislation in three ways:

a. Express: A federal statute explicitly states that federal law preempts state law.

b. Implied – field: Federal regulation is so comprehensive that it occupies the field.

c. Implied – conflict: If state legislation conflicts or interferes with federal legislation, it is void.

VI. Administrative Concerns

a. Presidential Rulemaking Oversight. Costle: “But in the absence of any further Congressional [docketing] requirements, we hold that it was not unlawful [under the CAA or due process] in this case for EPA not to docket a face-to-face policy session involving the President and the EPA officials during the post-comment period, since EPA makes no effort to base the rule on any “information or data” arising from that meeting.”

b. Judicial Review

i. Scope and Standard: Generally limited to administrative record, and generally deferential.

1. Note: Most agency decisions are informal notice-and-comment rulemaking and are subject to “arbitrary and capricious” standard of review. Formal rulemaking and adjuciatory proceedings are subject to “substantial evidence” review.

ii. Agency Interpretations. Chevron: If statutory language is clear and unambiguous, stop there. If ambiguous, defer to a reasonable and permissible agency interpretation. Held, “bubble theory” reading of “stationary source” in CAA permissible.

iii. Chevron Two-Step

1. Is statute clear & unambiguous? If it IS ambiguous, go to step 2.

2. If not, is agency’s interpretation of statute reasonable?


I. Overview: “Cradle-to-Grave” Program: Subtitle C provides a comprehensive system for regulation of the generation, transportation, and treatment, storage and disposal of hazardous wastes. See 6921-6934.

a. Manifests: A manifest describing the waste material accompanies a shipment of waste material throughout its life. 6922(a)(5). Generators must identify wastes as hazardous, and Generators, transporters and disposal facilities must each sign the manifest and a signed copy must be returned to the generator.