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Environmental Law
Wayne State University Law School
Hall, Noah Donald

Chapter 1: Basic Themes in the Legal Process of Environmental Law
The Problem of the Commons:
Property/resources that aren’t personally owned are going to be given less attention bc the negative effects of misusing the land is spread out across the population.
If no legal constraints on land use the resources are going to be a “free for all” w/ out regard for the resource or the community welfare.
Denies access to others (if it is commonly owned)
Depletes resources bc there are going to be a shit ton of people who work hard enough to better themselves and get big gains.
Waste is created by overuse and eventually the resource is unusable. (ex: pollution)
Collective self interest to keep non-renewable resources clean and not overused
Externalities: creating/doing something that creates an externalized cost instead of taking on the costs internally
Solutions to this:
No one can deplete it (ex: national park)
Problems to this approach:
Sometimes we need to use a resource (iffy argument)
Cause more waste by making people get that resource somewhere else (iffy argument)
Usually a line at which most people can agree that some use of that resource is ok (ex: trees are renewable) (main argument!)
Exception of this is Endangered Species
How do we set up a system that gives us the perfect amount of use without overuse?
Use combination of science and special interests to determine an amount of waste that is allowable into the E
The problem is not figuring out the amount that is acceptable…it is how to delegate who gets to use the amount that deemed acceptable.
Auction system?
Giving it to the highest bidder: we don’t necessarily want resources to go to them. (could fuck over other things/people)
It is used in some areas; not necessarily bad
Lottery system?
It happens in certain areas of E law.
Totally fair, but some people are going to use the resources in a way better manner than some who won the lottery.
Tax system?
Anyone can use them, but they pay for using them
No way of knowing how much will actually be used. Could be way overused or underused.
Makes people internalize costs
Administrative Permit System?
Pay a fee…then make a case as to why you should be allowed to use the resource. It is either accepted or denied.
How do you get the permit?
“old boy network”
Prove benefits to others besides yourself (informal stuff that doesn’t

ource management; Business practices of discharging pollution and chemical products into environment is the norm; state regs are lax as they compete for industrial payrolls; federal regulations on business’s begin to greatly expand; 1st federal efforts to address air/water pollution in 1950’s
1st substantive federal E statutes (wilderness act and federal highway act); Federal air/water/endangered species/pesticide laws are still on voluntary compliance and defer to state laws (federal gov main focus is funding “research” on how to fix problems);
Themes, Contexts, and Arguments for Change: Politics, Economics and Tactics
Political Context
3 blocks of participants
Industry and its adherents
Gov Reg Agencies
E citizen coalitions
The Tactical Logic of Citizen Enforcement of Environmental Law
Marketplace Remedies:
Public Law Remedies: Petitioning the Agencies or Interventions:
Petitioning the Legislature:
The Media:
Sue Them: