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Environmental Law
University of Toledo School of Law
Kilbert, Kenneth


Environmental problems and progress

i. Roots
1. Traditional fields including torts, property, con law.
2. 1970’s mark the beginning of the modern environmental era
ii. Criticisms
1. not changing quickly enough
2. responds too weakly and too slowly to problems
3. unnecessarily burdensome and restrictive
iii. Issues
1. Climate change—greenhouse gases
2. ground level air pollution
3. toxic waste generation
4. water pollution
5. Ecological Footprint—measure of human pressures being placed on global ecosystems
a. Impacts of technological change on environment:
i. Automobile—1/3 of GHG’s, source of most harmful air pollutants
ii. Sonar and vast drift nets cause global fisheries to be wiped out—2/3 exploited
iii. Development of plastics—increased per capita waste generation significantly

Four Main Statutes Discussed

i. Resource Conservation & Recovery Act (RCRA)
ii. Comprehensive Environmental Response, Compensation & Liability Act (CERCLA)
iii. Clean Air Act (CAA)
iv. Clean Water Act (CWA)

Environmental Justice Issues

i. Low income and minority communities bearing the burden of pollution and other inequities because less political clout
a. Sources of Environmental Law (pg. 61-104, 110-129)
i. Nuisance—prime CL doctrine for addressing e-law problems
1. Private Nuisance—party seeks relief based on interference with use and enjoyment of his/her land
a. Not well suited to handle e-law problems, only in individually special cases
b. Non-trespassory invasions of another’s interest in the private use and enjoyment of land
c. Requires a showing of “significant harm”, intent, and unreasonable
d. Madison v. Ducktown Sulphur, Copper & Iron Co.
i. SC awarded damages to P who sued to enjoin sulphur plant because of fumes.
ii. Court employed balancing test for respective value of properties and said they wouldn’t issue an injunction when damages were adequate
2. Public Nuisance—private party or government seeks relief for action that interferes with right common to public
a. Aimed at public health and safety and somewhat more effective for stopping pollution
b. Restatement (2d) of Torts—interference with right common to public is unreasonable where D’s conduct:
i. Involves a significant interference with public health, safety
ii. Is illegal, OR
iii. Is of a continuing nature or has produced long-lasting effect on the public right
c. Missouri v. Illinois
i. Court said Chicago’s artificial canals that emptied the human and horse waste from the city into the Chicago river was NOT a nuisance
3. Preemption of State Law
a. Expressly by statute
b. Impliedly if federal statute comprehensively occupies field
c. If state law conflicts with federal statute or impedes objective of federal statute
4. Standing
a. Injury in fact
b. Causation
i. At minimum—must “contribute to”
c. Redressablity
i. Likelihood that judicial relief requested will redress
ii. Massachusetts v. EPA
d. An organization must show:
i. A member must meet individual standing elements
ii. Relief germane

terials have sufficient insurance or other resources to pay for potential damage
6. Marketable allowances
a. Cap-and trade—regulators set a cap on annual emissions, lowered each year, allowances distributed each year. Emitters can buy or trade allowances with others.
b. Advocated by economists
c. 1990 Amendments to CAA provide electric utilities with tradeable allowances for SO2
7. Contracting
a. Involves agreement between government agency and a source to waive certain regulatory req’s in return for an enforceable commitment to achieve superior performance
8. Disclosure
a. Requiring regulatory target to disseminate information to inform persons of hazards they can avoid through proper conduct such as wearing ear protection or avoiding foods
iv. Judicial Review
1. Scope—limited to the administrative record presented to agency
2. Standard—generally deferential to the agency
a. Arbitrary and capricious, not supported by the record and/or not otherwise in accordance with the law
b. Chevron
i. Test as to whether interpretation of statute was valid:
1. whether congress has spoken directly on the issue, i.e. “clear and unambiguous”—if yes, that’s it.
2. If not, is agency’s interpretation reasonable?
c. The Regulatory Process (pg. 159-180)
i. Law, Policy, and Agency Decision Making