Select Page

Environmental Law
Wayne State University Law School
Hall, Noah Donald

Noah Hall
Fall 2017
Chapter 1: Basic Themes in Environmentalism
  Section B: Tragedy of the Commons
Tragedy = each man is locked into a system that compels him to increase his heard w/o limit – in a world that is limited; 2 assumptions à actors will always be selfish and try to maximize gain
W/a common resource that everyone has access to, no one is going to exercise self-restraint
Legal system is needed to step in and regulate use so resource can last longer
Pollution = tragedy of commons in reverse
Putting something IN to the commons b/c rational actor finds that his share of the cost of waste he discharges is less than the cost of purifying his waste before releasing it
Esp. true when, as is the case w/pollution, source is not clearly visible or traceable and thus, generators will not easily be called to account
Solution: make it cheaper for polluter to treat his pollutants before releasing them rather than discharge them untreated
KEY ISSUE: Force actors to internalize their externalities by regulating pollution (externality) release (permits, limits, prohibition, etc.)
Ask yourself: How do the statutes we cover address externality/tragedy of commons?
Require notice/info given to public regarding externality release?
Why care? Inter-generational equity/posterity, environmental justice, morality/warm fuzzies, if we let externalities build the clean up costs will be astronomical
  Section C: Road Salt
Highway salt application costs road commissions around 200M per year.  However, the total cost of salt application is around 3B per year (not just purchase/application but auto corrosion, road damage, damage to underground water mains/telephone cables/electric lines, fish and ecosystems)
Road commissions get to externalize 93% of costs onto other parties
Less costly options could be used (for environment and $), but they cost more per ton up front than salt and the road commission is unwilling to internalize more cost.
Path dependency as well
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
Chapter 2: Environmental Law Themes
Risk and CBA
Many meanings of “Risk”
Uncertainty, Scientific Complexity, and Risk
Human nature and attempts to internalize social costs
Politics; administrative process
Citizen Suits
Race to the bottom (attract industry by lowering regulatory standards)
Stewardship; inter-generational equity; sustainability
Remedy and enforcement choices
Polluter pays principle (strict liability)
Chapter 3: The Common Law in Modern Environmental Law
  Section A: Environmental Torts
    Invoking Nuisance Law to Remedy Environmental Problems
Nuisance = the use of property by one party so as to substantially interfere with the reasonable use, enjoyment, or value of another’s property
Private nuisance
P suffered substantial unreasonable interference with their use of their property
That interference was caused by D’s use of D’s land
D acted intentionally
Public nuisance: substantial interference w/use of a public place
Nuisance inquiry into “unreasonableness” should focus on the degree of interference suffered by the victim, NOT be a balance of D’s negligence/tolerability of D’s conduct
Balance test: if social utility of D’s conduct outweighs harm suffered by P, relief is denied altogether (instead of at least provide P with compensation)
Nuisance v. trespass: trespass requires physical interference; nuisance = interference by any means
MI does not recognize trespass via pollution or dust; can ONLY be pled as nuisance.
Typical remedy: Injunction
Simply awarding damages will not stop the polluting activity; more litigation could result
Land/property is unique and cann

New York v. Schenectady Chemical Company: In 50s and 60s, D disposed of its wastes by hiring an independent contractor who disposed of the material by dumping it into lagoons and burying it on his property.  20% of the total waste dumped at this contractor’s site can be traced to D. 
P claims: The toxic waste has infiltrated the groundwater and constitutes a public nuisance; D hired an incompetent contractor; D should have advised its contractor of the dangerous nature of what he was being hired to dump.
D’s defenses:
SOL on nuisance expires in 3 yrs and this happened 15-30 yrs ago
P lacks standing
Failure to join necessary parties
We were just doing what everyone else was doing at the time
We are not liable for an independent contractor’s wrongdoing
RULE: The right to maintain an action for nuisance continues as long as the nuisance exists (each day is new injury; no SOL problem.)
P has standing b/c public waters were polluted
RULE: Parties contributing to a nuisance are jointly and severally liable
No dismissal for failure to join parties – D has right of contribution
RULE: Liability standard for nuisance is strict liability NOT negligence.  Thus, D’s conduct is not at issue; the fact that D caused harm is enough
The inquiry is whether the condition created is causing injury.  NOT whether the conduct creating the condition is causing injury
RULE: D is liable for the acts of an independent contractor if D was
(1) Negligent in hiring him, or
(2) If the work was inherently dangerous (non-delegable duty), or
(3) The hiring party (D) cooperated in a wrongful act
If it knowingly failed to prevent an unlawful act
OR if the work involved the creation of a nuisance
B/c all who contribute to a nuisance are j/s liable