Environmental Law Outline
Big Picture
Approaches to protect the environment
· Property rights: Nuisance Suits provide damages and injunctions against pollution
· Controls imposed by the government (direct regulation)
§ Technology based
§ Environmental quality based
· Market incentives to induce the private sector to behave a certain way
§ Effluent fees
§ Permit Trading
§ Subsidies (to low polluters)
· Information requirements to educate the actors and public
Other Considerations
· Economic considerations
§ Externalities
§ Economic analysis: Cost – Benefit
· Ethical Considerations
§ Protect Nature
§ Protect future generations
§ Environmental Justice – the 2dary effect of pollution disproportionately falls on low income and minorities
§ 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
§ 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
§ 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, forced private taking) 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)
· Standing Injunction: Cannot pollute until they settle with the property owners who will be harmed.
· 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 i
ation Celotex
o Relative and Attributable risk- Some courts require relative risk of 2:1 or attributable risk of 50% in order to prove causation in toxic tort litigation. Equation=RR-1/RR=AR
§ Relative risk is the ratio of the disease rate in those persons with the factor (asbestos exposure) compared to the rate in those without.
§ Attributable risk is the proportion of the disease that is statistically attributable to the factor.
o But! Numbers are not the only thing to look at. Use:
§ Lifestyle
§ Exposure close to diseased area
§ Medical history/preventative measures
§ (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]
§ 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
