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Environmental Law
University of Toledo School of Law
Kilbert, Kenneth

Environmental Law
 
 
I.       Overview
A.     Sources of Environmental Law
1.      Common law
a.      Nuisance
i.         Generally
a.       Protect against interference with use and enjoyment of land
b.      The types of interference and remedies available were usually quite vague
c.       Need significant harm (unlike trespass) otherwise people would bring trivial actions
ii.       Types
a.       Private – private party seeks relief based on interference with use and enjoyment of his/her land—must show special injury that is different in kind from the general public (e.g. damage to property)
1.      Madison v. Ducktown
a.       π seeking injunctive relief and damages
b.      State SC reversed injunction on a balancing approach
i.         Thousands of jobs would be lost
ii.       Δ spent lots of money compared to the worth of π’s land
iii.      Money would be lost by the county
c.       State SC awarded damages
d.      Conflicting rights to use property
2.      Boomer v. Atlantic Cement
a.       Court issued a conditional injunction, stating the cement company could continue operations if it paid π full value of permanent damages
b.      Theory: plant will continue operations only if it had more economic value than the cost of damages
b.      Public – private party or government seeks relief for action that interferes with right common to public (e.g. public land, health/safety)
1.      Better cause of action than private nuisance to get injunctive relief
2.      Restatement (2d) of Torts §821B states that interference with right common to public is unreasonable where Δ’s conduct:
a.       involves significant interference with public health or safety
b.      is proscribed by statute or regulation
c.       is continuing in nature or has lasting, significant effect
3.      Missouri v. Illinois
a.       MO brought a public nuisance claim against IL for dumping their crap into the river because it was a public health issue for MO—seeking injunction
b.      MO claimed typhoid had increased, but numbers didn’t really bear it out
c.       Scient

sn’t a lot of federal activity in environmental laws, but there were federal conservation efforts
3.      Key environmental statutes
a.      National Environmental Policy Act (1970)
i.         Required federal agencies to assess the impact on the environment of any action they take
ii.       Doesn’t outright prohibit taking any action, but if the agency doesn’t comply, it can bring the project to a halt
b.      Clean Air Act (1970)
i.         First established significant regulatory program designed to protect the environment
ii.       Required the EPA to set standards for air quality
iii.      Revised in 1977 and 1990
c.      Clean Water Act (1972)
i.         Federal Water Pollution Control Act
Prohibited all discharges of pollutants from point sources into waters of the US, unless it’s allowed by permit issued by the EPA