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Environmental Law
Wayne State University Law School
Hall, Noah Donald

Environmental Law Fall 2017 Hall
Themes and Contexts
Course Overview
Tragedy of the Commons: When people/entities generally are selfish and ignore the scarcity of resources- they then make decisions that will further their gain, and they see the benefits and don’t consider the harm on the environment.
Commons: air, water, wildlife. It is in the hands of the rational decision-making of the people.
Freedom of the commons brings tragedy
Tragedy: People ignore the fact that their resources aren’t limitless because they are compelled to maximize their gain.
The benefits and costs don’t align due to free-loaders (problem with fairness and equity)
We have a general concern for keeping the environment clean
Themes of Environmental Law:
New environmental law is created in response to crises (generally a bad thing)
Polluter-pays: keep the responsibility of absorbing environmental costs with the marketplace industries
Sustainable development
Policy themes: cost internalization, risk analysis
Most of environmental law is implemented through the administrative system (health law, labor law…)
Make a product that costs you 10 cents to make (2 cents in energy, 2 cents in administration, 2 cents in materials…) and you sell product for $1; you’ve made 90 cents
But who bears the cost of the pollution that was generated when you created that product? The public, not the company.
Externalities: the costs imposed on others when individuals/a firm abuse their power (the opposite of the tragedy of the commons)
Positive: benefits incurred by people or by the environment by decisions/actions of other people (free riders)
Negative: decrease in value, harm to people or environment (pollution)
To internalize negative externalities:
1) Compensation or remedying after the fact (common law), or
2) Prohibiting/regulating before the fact (statutes or public law)
Prevents tragedy from happening in the first place, or minimizing future damages
Includes: tax, increase cost of product, ban
Common Law in Environmental Law
Private Nuisance
Boomer v. Atlantic Cement Co. (1970)
Landowners seek an injunction and damages against a factory that is polluting the air with particulate matter, causing a nuisance.  District court granted P’s temporary damages, and refused to grant and injunction.
Nuisance: substantial interference with the use/enjoyment of property
To calculate damages, quantify the impacts of the dust on the property, get real estate appraisals (find value of comparable property)
Trespass: physical invasion of property
Nuisance doesn’t require physical invasion
NY Rule: grant an injunction to shut down the cement plant
Injunctions are a more equitable/fair solution
You can protect your property rights with an injunction!
A neighbor can’t take part of your property without your consent, even if they are willing to pay compensation
Equitable remedy= injunction
Court awards damages because:
Policy- pollution only affecting 1 person, while the cement plant is very valuable to the community
Externalized benefits of plant: jobs, increases tax base, people of NY get cheap cement
Externalities: the neighbors are suffering from the dust produced by the cement plant
Pollution externality is greater than the profit
If the value of the externality is greater than profit, the plant shouldn’t be in business
Ex) Putting a factory in Grosse Pointe would NOT be profitable because the cost of the externalities, but putting it in Detroit would likely be profitable
If cement company makes $500,000 in profits, and Boomer’s house is worth $100,000- Boomer gets an injunction; Boomer should ask for $499,000 in damages because the plant has devalued his home
Rule: If you want damages, you must go through common law system. An injunction will only be granted for substantial damages.
Boomer had no chance for monetary damages going through the statutory environmental law system (would only get injunction)
Dissent: Called the majority’s decision a “private taking/private inverse condemnation”; core element that is being taken is whether to give up the value of your property
NY Rule: private companies CAN take your property with compensation
Right to Farm Statutes
Used to protect farms that are near growing cities from nuisance suits when the development gets close to the farm
Farm must be following Generally Accepted Management Practices (GAMP)
Farms that follow the GAMP are immune from suit
Some courts have struck Right to Farm Statutes down as unconstitutional- it is a taking; you have the right to protect your property from a nuisance; legislature can’t decide that a property owner can take sticks in bundle from another property owner
Primary way gov’t deals with “coming to the nuisance” problems is through zoning laws
Zoning is inherently constitutional because gov’t are simply collectively protecting property from nuisance
Public Nuisance
New York v. Schenectady Chemical Co. (1983)
Chemical Co. hired an independent contractor 15 years ago to dispose of waste.  NY filed a public nuisance suit against the chemical company to get them to clean up the site to prevent groundwater pollution.
Chemical company didn’t sue contractor because he doesn’t have money!
Groundwater is a public resource- can file public nuisance suit
Public v. private nuisance: depends on resource being impacted
Public: air, water, public lands (park)
NY is the trustee of the public waters in this case
Intentional nuisance: conducted business with no regard for the impact
NY alleges that:
1) Company knew that the contractor was incompetent
2) Company failed to advise contractor of dangerous nature of the waste
Chemical company argues, but the court rejects:
1) The three year SOL has run
Court: It was a continuing nuisance, so SOL starts over each day
2) NY lacks standing
Water is a public resource
3) NY failed to join the necessary parties
This is a joint-and-several liability case, so NY can go after anyone
4) NY released a co-defendant by singing a contract
No evidence that a contract was ever signed
5) Environmental Conservation Law bars common law actions
Section in statute bars this defense
6) Company used state of the art technology
Fault is not at issue- nuisance is a strict liability offense
7) Company followed permitting requirements and used a licensed contractor
No permit defense in tort nuisance law
Rule: Everyone who creates a nuisance or participates in the creation/maintenance of a nuisance are liable jointly and severally for the wrong and the injury.
Comer v. Murphy Oil Company (2010)
Landowners along the Gulf Coast file suit against operators of energy, fossil fuels, and chemical industries that have caused emissions of greenhouse gases, alleging it caused the sea level to rise and contribute to Hurricane Katrina.
No way plaintiffs in this case could prove beyond a reasonable doubt that the greenhouse gases made Hurricane Katrina more severe based on current science.
Procedural History
Plaintiffs brings suit in trial court, and case was dismissed
3-Judge panel on the 5th Circuit reversed trial court’s dismissal and said they would re-hear the case
Wants the entire 5th Circuit to have an en banc review
Rehearing en banc was granted (majority of the 5th Circuit said that the 3 judge panel was probably wrong and they would review the case)
Most judges on the 5th Circuit had conflict (owned stock in oil companies) so they recused themselves from the case and doesn’t have a quorom
Trial court decision reinstated
Defenses raised by industry (and rejected)
Plaintiffs don’t have standing
Court: standing is never an issue under the common law (inapplicable defense), it only applies in statutory claims
Standing: 1) injury in fact, 2) injury fairly traceable to D’s actions, 3) injury will likely be redressed by favorable decision.
This is a non-justiciable political question, meaning that the federal government should be regulating greenhouse gas emissions, not the judiciary
Court: the claims are justiciable because their claims are only those inherent in the adjudication of their common law tort claim for damages.
Holding: Although plaintiffs have standing for nuisance, trespass, and negligence, the court has not yet decided whether the defendants are liable to the plaintiffs for damages or whether the defendants proximately caused the injury.
Defenses to Public Nuisance Suit
1) Coming to the nuisance- injury is self-inflicted because the defendant was already established in the area before the plaintiff arrived
2) Permit defense- defendant claims that it operated its facility in compliance with regulatory requirements

pposed to do (they got permits, they are following regulations)
If the EPA wanted to close all chemical waste sites that are potential sources of pollution, then we wouldn’t have chemical waste sites
We need these facilities, even though everyone is opposed to chemical waste sites
EPA would rather have a permit system
Debate whether contamination should be removed or just let it be (i.e. asbestos could be more dangerous to remove/clean up than just to cover it and leave it alone)
Cause of action: anticipatory nuisance (STRICT LIABILITY)
You don’t actually have to be experiencing the nuisance yet- you have proven as a matter of fact that defendant’s activities are likely to be a nuisance in the future
Plaintiffs got an injunction because there was a dangerous probably that the threatened injury would occur (if they were in NY, they may have gotten damages)
Compare to Boomer: this gives rise to an injunction because:
Plaintiffs asked for an injunction (in Boomer, they asked for damages)
Depends on who the plaintiffs are
Fact specific issues- risk of explosions, fear of health hazards, anticipatory…
Perhaps they should have requested both and injunction and damages
Rule: Awarding an injunction requires equitable balance of harms and benefits that would occur from the injunction.
Calculation of Damages
Involves science (figuring out the zone of harm that was impacted), economics (what can be paid), emotional claims
If you are a plaintiff attorney, you don’t want the whole case to be about scientific evidence or loss of property values, you want pic of dead puppy ☹
Branch v. Western Petroleum (1982)
Punitive Damages can be very high! (double or triple your actual economic damages)
When awarding punitive damages, courts usually look for:
A cover-up (company knew that they screwed up and tried to hide it)
Companies that offer money to plaintiffs for property damage before the litigation actually starts, in order to avoid punitive damages
Holding: Pollution of the waters was willful and carried out in reckless disregard of the rights of P’s.  Therefore, punitive damages were properly awarded.
Exxon Shipping Company v. Baker (2008)
Captain Hazelton driving oil tanker was drunk, and ran it aground onto a reef; biggest oil spill in U.S. history at the time (before BP oil spill); Exxon knew about this captain’s drinking problem
AK has a huge commercial fishing industry that was wiped out
Minnesota firm did the case on contingency fee, and collected over $1 billion in ACTUAL damages
Trial court awarded $5 billion against Exxon in punitive damages (5x actual damages)
Did this because IT’S EXXON! They won’t even notice a $1 billion loss, need to make them hurt with a large punitive damages
Court of Appeals said that $5 billion was too much, so they awarded plaintiffs $2.5 billion
Supreme Court decided that ratio of punitive to compensatory damages should be 1:1 ($1 billion)
Case was decided under federal maritime law
Big win for Exxon- took 20 years later for Exxon to actually have to pay for the punitive damages
1989- Oil Spill
1995- Awarded punitive damages
2008- Actually has to pay the damages that are reduced
Due to the appellate process, Exxon actually had to pay way less than plaintiffs expected; plaintiffs didn’t get award until 20 years later, so it didn’t even matter that they got an award.
This case was a great win actually for the Minnesota firm- doesn’t matter to them that every 20 years they don’t really hurt