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Environmental Law
Wayne State University Law School
Hall, Noah Donald

Environmental Law Outline- Fall 2011- Professor Hall

Big Picture

Approaches to protect the environment

· Property rights: Nuisance Suits provide damages and injunctions against pollution

· Controls imposed by the government (direct regulation)

o Technology based

o Environmental quality based

· Market incentives to induce the private sector to behave a certain way

o Effluent fees

o Permit Trading

o Subsidies (to low polluters)

· Information requirements to educate the actors and public

Other Considerations

· Economic considerations

o Externalities

o Economic analysis: Cost – Benefit

· Ethical Considerations

o Protect Nature

o Protect future generations

o Environmental Justice – the 2dary effect of pollution disproportionately falls on low income and minorities

o Equity – Tragedy of the commons

The Tragedy of the Commons [28]

· Defined: The conflict of resources b/t individual interests and the common good (costs are not fully internalized on the user and thus the result is overuse)

· Solving the Tragedy: private property (Locke), auction, permits, taxing, first come first serve

· Goal: Reach a sustainable level of use

Common Law in Environmental Law

Tort Causes of Action

· Nuisance

o Standing

§ Private: An unreasonable interference with a person’s quiet use and enjoyment of his property. Specific injury to specific property owners (negligent or intentional)

§ Public: One’s conduct unreasonably interferes with a right common to the public. (usually intentional tort)

· Usually seek equitable relief only brought by a prosecutor, a citizen may have standing if P can show “special damage” distinct and more severe than the general public (thus making it a private nuisance)

§ Note: Look for a lack of causation – required to bring suit

o Relief the court awards for nuisance

§ Damages: Permanent damages: amount damaged (typically to restore/rehab the environment), also called Liability Rule (damages may be considered a license to pollute bc pollution is still allowed) as in Boomer (cement plant had high economic value so the ct did not want to shut it down, damages only awarded)

§ Equity: Injunction: (Property Rule – encourages negotiation and reaching the cost/benefit equilibrium)

· Main disadvantage: property owner could take advantage of negotiation and receive a windfall

· Balancing Test: The court balancing competing interests/hardships to determine if an injunction s/b granted Boomer (degree of damage to the P v the economic impact of stopping pollution)

· Reverse Injunction: D polluter is enjoined, but P citizen must pay damages (usually bc they came to the nuisance) Del Webb – this is a rare result but a consideration if there is a coming to the niusance

§ No Remedy

o Exception: right to farm legislation prohibits damages and injunctions for nuisance against farms

· Trespass: unlawful interference with one’s property which have resulted in pollutants entering another’s property

· Negligence: Failure to use reasonable care under the circumstances (recovery for physical injury only)

· Strict Liability: Regardless of negligence or fault – Ultra-hazardous activity and product liability

· Toxic Torts see supra

· Note: Look for a lack of causation – required to bring suit

Defenses in Torts Suits [146]

Statute of Limitations – right to maintain an action exists as long as the nuisance exists

Lack of standing

Due process property rights (not on exam)

Permit Defense: The government has given the polluter ‘permission’ to pollute

Joint and Several – Big problem on environmental cases – Who do you sue?

State of the art Defense: negligence not an issue with

Countersuit by the offender to scare others from continuing to sue [libel, defamation, etc.]

Coming to the nuisance

Preemption by a federal regulatory scheme

Special Challenges of Toxic Tort Litigation

· Defined: Exposures to toxic substances that cause harm to human health

o Elements: Causation + Injury

· Causation of the injury is the main contention in Toxic Tort Litigation

o Scientific evidence need not be known with certainty (just preponderance) to prove causation

o P has the burden to show that the D’s pollution caused the injury or damage by preponderance of the evidence – cause in fact (preponderance is a more likely than not standard) Donaldson

§ (1) Linkage b/t exposure and disease,

· Inferring relative risk is one factor in determining causation Celotex

§ (2) that defendant is the source of exposure, AND

§ (3) that the exposure was of a magnitude sufficient to be consistent with the P’s proof of linkage [frequency, regularity, proximity]

o Negligence suits require proximate causation [cause in fact AND legal cause] Donaldson p231

§ Cause in fact: D’s conduct was a material element and substantial factor in bringing about the alleged injury

§ Legal Cause (foreseeability): Was the injury that such a reasonable person would foresee

§ Standard of care/duty that the D has not followed

o The best case to prove causation of a disease: Donaldson per P. Hall

§ Do not want a common cancer or so rare that it is just one case

§ Want: pretty rare but also statistically appearing enough to prove the causation

· Procedural Issues:

o Effect of Polyfurcation [212]: Splitting of the case into sections to be tried (i.e. causation and damages) – this is usually bad for Ps bc less sympathy and flow for jury

o Class Action suits – may help prove causation with a group of Ps

· Damage Theories

o Increased risk of disease (disease medically certain to follow, not just a mere possibility)

§ Future injuries must materialize before being compensated. Anderson

o Emotional distress (fear of contracting a disease)

§ Rule: Need a tortious activity that creates physical harm or emotional distress and a physical manifestation of the emotional distress – need a causation nexus b/t the physical harm and emotional distress Woburn Case

§ 2 basis for emotional distress

· Physical Injury – fear of contracting a disease is the result of a present injury

o Injury only sub-cellular (ct said this is ok for Emotional Distress but may argue otherwise)

o Even if D causes sub cellular injuries, If P did not know about the injuries until talking to the Dr, then the Dr. is liable if his diagnosis was not accurate – Dr. caused distress

· Witnessing the death of a family member

o Immediate family members only (as defined as spouse and child [not siblings/parents]) AND

o Temporal proximity – The Ct wants traumatic shock

§ The injury must occur in front of the P in a traumatic way [here this did not happen bc the sickness was gradual]

§ Future injuries are not sufficient bc the costs are too speculative Woburn Case

o Punitive damages are possible if the D failed to act despite knowledge o

at cannot be adequately served by nondiscriminatory alternatives.

o of Waste

§ Statutes that prohibit private landfill operators from accepting waste originating outside the county equates to discrimination/protectionism and violates the negative commerce clause (even if both in and out of state waste is discriminated against) Fort Gratiot Sanitary Landfill Inc.

o Legal ways to impact interstate commerce

§ Make it more expensive to dump trash or limit the amount of trash (for both in and out of state dumpers)

§ Market Participant doctrine: Make landfills state run (exception to the dormant commerce clause)

§ If the state can prove unreasonable health hazard, they can regulate (Dissent in Fort Gratiot)

Affirmative Commerce Clause

o The commerce clause extends to any activity that may affect commerce, however SWANCC takes a narrowing approach

o Isolated, intrastate waters w/o a significant nexus to navigable waters were not intended by congress to fall under the jurisdiction of the Feds (Corps) under the CWA SWANCC (the ct focused on the current use of the waters as a wetland and not the future use which would have economic impacts)

o SWANCC is not solid BLL and SCOTUS did not overrule the case but interpreted the case as the body of water must have significant nexus to navigable water to fall under congresses control.

§ KEY: Look for significant nexus for feds jurisdiction.

Where is the line of regulation?

o Federal Government: Interstate pollution, navigable water

o State Government: Purely intrastate, isolated wetlands

o Unclear Areas – State or Federal

§ State government will take a protectionist approach to preserve state interests OR

§ Feds will over-regulate

The Administrative Law of Environmental Law

· 3 categories of litigation involving agencies

o A challenge to a specific agency decision on a project

o Challenge to an agency rule: Chevron Case

o Challenge the agency’s action


· P must show a tangible injury, not a theoretical dispute to bring a suit (for an administrative decision or otherwise) Mineral King

Injury In fact – does not require that an “aggrieved” or “adversely effected party” have a personal economic interest Scenic Hudson

o Ongoing: The violation must be ongoing, the ct did not allow a suit for a wholly past violation Gwaltney of Smithfield

o Specific and imminent: Allegations must be specific and imminent Lujan II (having used the land and wanting to use it in the future was enough for standing – this shows a tie to the P, BUT environmental harm alone is insufficient for standing) Laidlaw

o Possibility of future violations: P must be able to show that the D’s violation was ongoing at the time of the complaint and there must be a possibility of future violations Laidlaw