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Environmental Law
Wayne State University Law School
Hall, Noah Donald

Environmental Law – mostly deals with statutes and regulations. It is a response to the tragedy of commons. Bottom line is economics.
*Tragedy of Commons – defined as the conflict of resources btwn individual interest and the common good…use of common resources w/ no legal restraints. 
-denies others access to it simply because it is first come first serve basis. 
-depletion and pollution of resources.
-sell commons are private property
-allocates rights to certain individuals
·         How do u allocate costs?
1.       Auction – problem: it is giving it to the highest bidder and may no necessarily want to. Also may have a monopoly on hand – although antitrust laws may be able to handle this. 
2.       Lottery – problem: economics would say this system is stupid because some uses for the resources are more important than others.
3.       Taxes (this system may weed out the ppl who don’t really need the resources – problem: only the rich can attain, hard to figure out taxes for certain resources (how much to tax?) and allocate them effectively.
4.       Administrative permit system (pay a fee, submit an application, explain why u need the resources, and u either get accepted to denied)…usually the way that it is done. 
·         On what basis are permit allocated?
1.       think about benefits to others besides the person/entity applying for the permit
2.       Grandfather system – if u had it before then u get it again.
3.       Rotation system
4.       Give it to the companies who are most efficient at using it…determination of efficiency usually boils down to better technology.
 *The problem with environmental law may be that it tends to focus on regulating the conducts of ppl who use the resources and avoid the question of HOW much of a resource should be used.
*Externalities – environmental social costs which are passed on into the common and cannot be traced.
-some ppl are incurring the cost w/out enjoying the benefits. 
-reinteralization – seek accounting of those costs back to the ppl who caused them and may them   
*Nuisance defined as use of property by one party so as to:
-Interfere substantially with the reasonable use, enjoyment or value of another’s property
-Injure life or health
-Offend the senses or violates principles of decency OR obstruct free passage or use of highways, navigable streams, public parks and beaches, and other public rights
*Nuisance require plaintiffs to prove that:
-They have suffered substantial unreasonable interference with property use
-The interference was caused by D’s use of its land
Boomer et. al.(∏) v. Atlantic Cement Company (∆)
Fact: ∆ operated a cement plant and ∏ brought action for injunction and damages, alleging that their property suffered injury from dirt, smoke, and vibrations. District court found a nuisance but denied injunction, merely awarding damages.
Holding: private nuisance is defined as physical invasion that interferes with an individual’s enjoyment of land. Old principle awards injunction due to nuisance automatically because land is sacred and unique. The court grants damages because injunction would mean that the plant would have to shut down and it would be a harsh relief because it might force all cement makers to do the same and the town is v. dependent on the cement company. The proper remedy in this case would be to simply order an injunction on the prospective condition that it will be lifted if the creator of nuisance pays for permanent damages to compensate for past, present and future harm. REVERSED. Awarding injunction (temp) and permanent damages. 
Dissent: Says that the majority is licensing a wrong…saying to the company that u can continue to do harm as long as u pay damages. Calls it a private taking because ∏ is essentially being forced to go through with the transaction…suggests the plant should be closed in 18 months, and only reopen when nuisance is gone. 
*Why did Boomer use private law instead of public law? Boomer’s case took place in 1970s when public law was not readily available.
New York (∏) v. Schenectady Chemical Company (∆)
*Didn’t sue the contractor who dumped because one should always go for the deep pockets.
*During this time, there are public laws which are available so why not sue invoking statutes? Although environmental statues are easier to prevail under, often times, the remedies are inadequate…there is more $ under tort common law.
*Case was considered public nuisance because it was something that ppl collectively were being effected by. 
Facts: ∏ sued ∆ to pay the cost of cleaning up a dump site. Dumping was done 15 to 20 yrs. earlier by a private contractor. 
Holding: A private individual is capable of endangering public safety may be charged in public nuisance. Even though an independent contractor was involved, ∆ knew the dangerous nature of their chemicals. (See defenses which the court found meritless in case briefs on pg. 8 of casenote supp.)
Spurs Industries, Inc. (∆) v. Del Webb Development Co. (∏) – NOT GOOD LAW!!!
*Common problem of what happens when subdivisions grow into what used to be farmland.
*Okay under public nuisance because flies are health issues.
*Old rule would have granted injunction for nuisance.
*Argument of first come rule doesn’t really work…u can’t really pick a point in time to determine who was there first.
*Coming to nuisance case which the court have held that the residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and had been damaged thereby.
Fact: ∆ had a feedlot before ∏ built a community nearby. ∏ sought an injunction against the feedlot’s operation.
Holding: In this case, the middle ground seems most equitable… that is, ∏ must indemnify ∆ for a reasonable amount of the cost of moving or shutting down in return for obtaining an injunction against the nuisance. ∏ only entitled to their permanent injunction because the damages to the ppl who have been encouraged to purchase homes with them, the court is not saying that ∏ is blameless. If Webb were the only ones, the doctrine of coming to nuisance would have been a bar to relief ∏ sought. 
*Public nuisance traditionally have been applied against actions that injure life or health; offend the senses; violate principles of decency; obstruct free passage or use of highways, navigable stream, public parks, and beach; and otherwise disrupt public rights. 
*Right to Farm Legislation – farmers would not held liable for nuisance if doing so under guideline. The problem with this is that essentially, the farmers are getting a taking of property right against non-farmers.
*Defenses in Environmental Tort Suits:
– Two principle ways to defend a torts case: the ∆ can deny and refute a critical element of the ∏’s prima facie case or else can try to raise and prove an affirmative defense.
*Contributory negligence, estoppel, laches, discharge in bankruptcy, res judicata, and statue of limitations may play a part in environmental tort cases. 
Statute of limitations, standing, Violation of DP property right, speculation, failed to join all parties, PERMIT EFFECT
Permit defense is NOT going to work when faced with

act 3. familial proximity to victim (spouse or child). Since leukemia is a lingering illness it does not meet the temporal aspect of the test. ∏ also may not recover for an increased risk of future illness because the amount of risk and nature of the illness are too speculative at this time. 
1. BLR in Mass: Claims for Emotional Distress Physical Injury: In order for…plaintiffs to recover for negligently inflicted emotional distresss, [they] must allege and prove [they] suffered physical harm as a result of the conduct which caused the emotional distress.”
Crux: have to have suffered the injury. Feelings have to be hurt because of PHYSICAL harm.
Here: Ds claimed Ps didn’t suffer physical harm. Ps said that they were harmed at the subcellular level and her cells have been damages and the damage would lead to cancer down the road.
Court holds for P.
2. BLR in Mass: Witnessing Death of a Family Member: …damages may be recovered for emotional distress over injury to a child or spouse when the plaintiff suffers contemporaneous physical injury from the same tortious conduct that caused the injury to the close relative.
Here: Ps fail the temporal proximity test, no indication that Mass would extend the child getting sicker and sicker.
3. BLR: Claims for Increased Risk of Future Illness: entitled to get damages if the damages are reasonably expected to be followed, not just a possibility
here, Ps brought the CDC, center for disease control, best three letters, best gov’t science
Court held that the claims too unclear for now, wanted more specificity. Court errs on side of under-compensating rather than over.
*Comparative advantages of public law:
Cleanup mechanisms for contaminated land and groundwater present advantages. Emergency protective actions can be ordered instantaneously. 
Sophisticated land remediation techniques are applied under expert agency supervision at no expense to the neighborhood, paid for by the responsible corporations.
Proof in public law case can be far easier than in tort law. (do not require preponderance of evidence)
Government hazardous waste remedies have no need to prove specific causation of harm, the scientifically subjective task that overturns most tort plaintiffs. Agencies merely have to show that a responsible party owned the site, or transported, dumped, or arranged for the disposal of toxics at the site. The burden of proof in this context is effectively on the PRP, not the prosecuting agency.
 Public law produces no compensation for injured citizens. Common law damages are a driving force behind many private law actions against toxic industrial cost externalizations.
There is little or no legal obligation of official agencies to investigate and remedy public health threats. The vigilance and perseverance of official agencies in investigating and defending against public toxic exposure depends on a variety of logistical and political