Section One: Basic & Cross Cutting Themes In Environmental Law
§ 1.1 The Problem of the Commons
I. The conflict of resources between individual interests and the common good
a. Costs are to fully internalized on the user and thus the result is overuse
i. Commonly available resource where there is no incentive not to maximize your use of it because any of the downsides are shared with everyone and not just one person.
ii. This is an inefficient depletion of the resource because you do not want to overuse the resource so that it collapses.
iii. Pollution of the resource: overuse of resource so that it no longer serves its purpose within the community.
II. Externalities: Other people foot the cost, not just you. You pay only a small fraction of the overall cost. Benefits outweigh the detriments.
a. Regulations may impose costs on a facility to equal the externalities, the negative environmental effects from an activity not directly reflected in the production costs.
b. Regulations can in effect force the facilities to consider the pollution as a cost of production.
III. Solutions to the Tragedy of the commons
a. Total Preservation
i. Problem is that we sometimes need to use a resource and can’t just let it sit there.
i. Auction (Market Approach)
1. Problem is that you just give it to the highest bidder and we don’t always want it to go to the person with the most money
1. But this may not guarantee that the resource is being fully utilized
1. Still would only have a limited group of people that would be able to afford to use the resource
iv. Administrative Permit
1. This is the main way we allocate a resource:
a. Pay a fee and state your case about why you should be allowed to use the resource
2. These decisions are subject to judicial review
a. Standard to use:
i. Conduct of the person using the resource and not the actual use of the resource
3. Give to the person who will most efficiently use the resource
a. Better technology or engineering
b. Pollute, but use the best technology available to minimize the pollution.
c. Goal is to reach a sustainable level of use
§ 1.2 A short historical sketch of the evolution of U.S. environmental law
I. The Common Law and Conservation Era, Pre 1945
a. Legislation was left to sate and local governments whose public health or nuisance laws were poorly coordinated and rarely enforced
b. Congress only acted when a public heath problem was particularly visible or obvious
II. Federal Assistance for State Problems, 1945-1962
a. Federal programs were premised on the notion that environmental problems were the responsibility of state and local governments
b. National concern began to grow
III. The Rise of the Modern Environmental Movement, 1962-1970
a. Rise traced to Silent Spring book which talked about pesticides accumulating in the food chain
b. Environmental groups form
c. Increased concern over the environment
IV. Erecting the Federal Regulatory Infrastructure: 1970-1980
a. Explosion of federal legislation (CWA, CAA, CERCLA)
b. EPA formed
c. Nixon signs the National Environmental Policy Act (NEPA)
V. Extending and Refining Regulatory Strategies, 1980-1990
a. Initial laws are broadened and strengthened
b. “Hammer” provisions are included into laws in order to force agencies to adopt regulations
VI. Regulatory Recoil and Reinvention, 1991-present
a. Republican congress attempts to weaken the environmental laws
§ 1.3 Themes, contexts, and arguments for change, political context and tactical logic of enforcement
I. Three main approaches for providing protection for the environment:
a. Controls imposed by the government
i. Protect the environment by dictating the amounts or methods of controlling pollution
1. Technology based regulation
a. Specifies the amount and/or method of controlling pollution by reference to that which the available technology can control.
i. Example: “Best Available Technology” (BAT) limitation in the CWA.
ii. Environmental quality based regulation:
1. Based on the environments ability to assimilate the pollution (ambient environmental quality standards).
2. Aims at a certain level of environmental quality and sets pollution controls to achieve that end.
a. Example: National Ambient Air Quality Standards (NAAQS) in the CAA.
b. Market incentives structured to induce the private sector to behave in a more environmentally protective way.
i. Effluent fees: Tax the polluter based on the amount of pollution it creates.
ii. Marketable pollution rights: Creates a system in which each facility is allocated an allowable amount of pollution and is permitted to sell its surplus by emissions trading.
1. The central device for emissions trading is the recognition of credit for reducin
could take advantage of negotiation and receive a windfall.
b. Balancing Test: The court balancing competing interests/hardships to determine if an injunction should be granted.
c. Reverse Injunction: D polluter is enjoined, but p citizen must pay damages (usually because they came to the nuisance).
3. No Remedy
4. Exception: right to farm legislation prohibits damages and injunctions for nuisance against farm
b. Trespass: unlawful interference with one’s property which have resulted in pollutants entering another’s property
c. Negligence: Failure to use reasonable care under the circumstances.
d. Strict Liability: Regardless of negligence or fault: Ultra hazardous activity and product liability
e. Toxic Torts
II. Boomer et. al. v. Atlantic Cement Company (1970) – Private Nuisance
a. A private nuisance is defined as an invasion of a person’s interest in the use and enjoyment of his/her property.
b. It exists when one’s conduct, whether negligent or intentional, unreasonably interferes with the use and enjoyment of another’s property
c. Atlantic Cement Company operated a large cement plant. Boomer brought actions of injunction and damages against Atlantic alleging that they suffered injury from dirt, smoke, and vibration resulting from this operation.
d. To maintain and action for nuisance:
i. Substantial interference with property use
ii. The interference was caused by D use of its land and
iii. D acted intentionally.
e. Standard remedy for a nuisance is an injunction
i. Injunction would usually work because damages would not stop the nuisance.
1. Property is sacred and unique.
f. But here the court moves from an injunction to damages.
i. Cement factory was not really able to fix the problem so their choices were really to either shut down or move.
1. Court was reluctant to force them to make this choice because the would set a precedent and cement companies everywhere would have to shut down.