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Environmental Law
Wayne State University Law School
Hall, Noah Donald

Environmental Law                                                                                                                           
Professor Noah Hall
Fall 2006                                                                                                                                            
LEX 7231
–                      The problem of the commons: pages 27-35
o       Cost Externalization: Where the cost of the environmental harm is passed to the commons (community)
o       Cost Internalization: Where the producer of the environmental harm bears the burden of the cost.
–                      A short historical sketch of the evolution of U.S. environmental law: pages 42-48
–                      Themes, contexts, and arguments for change, political context and tactical logic of enforcement: pages 77-85 
Administrative Law: Governs Agencies
–                      Environmental: Typically effectuated at the state level, but often on federal grounds, but also on state grounds.
Typical Litigation Issues
–                      Challenging Permits Granted by an Agency:
o       Agency takes on a court like function whether to grant a permit or not, and participation in that proceeding is generally like a court proceeding.
–                      Challenge to Agencies Rule:
o       Agencies have tremendous rule making authority,
o       Administrative rules effectuating the statute often have more impact than the statute.
–                      Challenging the Agencies Action
–                      Nuisance Actions: Where D’s use of his property (a) substantially interferes w/ the reasonable use, enjoyment, or value of another’s property; (b) injures life or health; (c) offends the senses or violates principles of decency; or (d) obstructs free passage or use of highways, navigable streams, public parks & beaches, and other public rights.
o       Private Nuisance: Generally, (a) & (b) above.
§         Test: Does D’s conduct or use of his land, whether negligent or intentional, unreasonably interfere w/ P’s use and enjoyment of his property.
§         Moving party is the private individual who is damaged.
o       Public Nuisance: Where one’s conduct unreasonably interfere w/ a right to a common public use, such as (c) & (d) above. [NY v. Schenectady Chem. Comp.] §         Moving party is usually the govt. representing the public
·         Individuals can file, but only if he can show special damages that are more severe and distinct from the public harm.
·         (e.g., In Spurr, Webb’s inability to sell was a special injury due to the feed operation.)
o       Remedies:
§         Compensatory Damages: (1) health & property damage; (2) lost profits and earnings; (3) pain & suffering; and the like.
·         Permanent Damages: Represent compensation for harm that will continue indefinitely, so long as the conduct causing the nuisance persists, such as the cement dust in Boomer.
§         Injunctive Relief: The court must balance the competing interests and hardships  of the parties (i.e., P, D, & the public) in determining whether to grant injunctive relief [Boomer et al. v. Atlantic Cement Company]  
§         Indemnification: P can be liable to indemnify D where P has helped in bringing others to the nuisance.
·         For Example: Developer built a subdivision in an area close to feeding operation. (Spurr Industries).
§         Punitive Damages: May be allowed by statute or common law, but are often limited by statute.
o       Liability:
§         Joint & Several: Everyone who creates a nuisance or participates in the creation or maintenance of a nuisance are liable jointly and severally for the wrong and injury done thereby. [New York v. Schenectady Chemical Company]  
§         Vicarious:
·         Respondeat Superior: Employer liable for negligent acts of e/ee.
·         Negligent Hiring: Where D negligently hires an unqualified independent contractor.
·         Non-Delegable Duty: When the court finds that the subject matter involved is sufficiently important to the community, it will find the duty non-delegable and hold the hiring party vicariously liable.
·         Collusion: Where the party who hired the indy-k was significantly cooperating in the performance of the wrongful act.
–                      Remedies for Victims of Toxic Contamination – lessons from the Woburn toxics civil action. [Anderson v. W.R. Grace & Co., Beatrice Foods Co., et al.] o       Emotional Distress (ED) Claims
§         Negligent Infliction of ED Causing Physical Injury:
·         (1)Physical harm results
·         (2) From conduct causing the ED.
·         (3) Physical harm must manifest in objective symptoms and
·         (4) Substantiated by medical testimony [Anderson].
·         Rationale: Require physical harm to prevent fictitious claims
§         Witnessing Death of Family Member: One in the zone of danger can recover for emotional distress resulting from injuries to another (e.g., Witness to the death of her children.)
·         Prudential Requirements:
o       (1) Physical Proximity to the accident
o       (2) Temporal proximity to the negligent act . . . distress must result from immediate apprehension of D’s negligence or its consequences.
§         (i.e., can’t manifest over time, such as leukemia, must be close in time, such as a car accident.)
o       (3) Familial proximity to the victim.
o       Increased Risk of Contracting an Exposure Induced Disease: P may recover all damages that are reasonably probable to follow, but not those that may follow, the injury suffered
§         Damages:
·         Suffering which is inevitably proved to follow is compensable.
·         Expenses reasonably to follow (e.g., medical)
·         This action assumes that the harm prayed for has accrued.
§         Argument Against:
·         Discovery Rule: Injury occurs when the ailment manifests.
·         Under-compensation to those who actually become ill
·         Windfall to those who don’t become ill.
·         Inequitable to D b/c D will pay claims that never ripen.
–                      Permit Defense: Preemption argument based on D’s assertion that the polluting activity is being conducted under the terms of a valid govt. permit.
o       Requires Express Statement: Usually rejected unless the statute expressly states that common law remedies are unavailable.
o       As Showing of Compliance w/ the Standard of Care: In Negligence claims, however,courts have been willing to take notice of permit compliance as evidence of due c

nsequences of D’s behavior
§         Foreseeability: Whether the injury is of a type which a reasonable man would see as a likely result of his conduct.
§         Foreseeability: B/c of the attenuation of source & time, it becomes somewhat unforeseeable that exposure will cause such disease.
–                      Expert Testimony: If the underlying method used to generate an expert’s opinion re reasonably relied upon by the experts in the field, the fact finder may consider the opinion – despite the novelty of the conclusion rendered.
o       Epidemiology: The study of the relationship b/w a disease and a factor suspected of causing the disease, using statistics to determine the likelihood of causation.
o       Landrigan v. Celotex Corporation: Allowed the admission of epidemiological evidence (statistics concerning the occurrence of a disease w/in a group) as one factor of causal proof .
–                      Damages: Issues proving increased risk of disease resulting from exposure
o       Medical Testing Expenses, such as asbestosis, is probably the easiest and most reasonable recovery for potential future harm.
–                      Polyfurcation: Judge may phase a trial in the interests of efficiency.
o       (e.g., liability is litigated first in a separate trial. Then damages are litigated in another trial.)
o       Disadvantage to P b/c it breaks up the emotional flow of the case.
–                      Special Jury Question: Where the jury is asked specific factual questions regarding the case as opposed to simply deciding responsibility.
–                      FRCP 11: Polices attorney’s ethical practice of cases brought w/o traditional proof of causation by using stats & circumstantial logic w/ theories of science.
–                      Contrasting private and public law – a Woburn toxics timeline (p. 265-271)
o       Public Law: Statutory law ; Private Law: Common law
o       Feeding Each Other: Public law provides a source of info to private law suits, and private law suits provide info from tort litigation.
§         Also, media play provides motivation for clean-ups and better technology.
o       Advantages of Public Law
§         Emergency protective actions can be ordered immediately
§         Govt. is paying and has more expertise and resources.
§         It’s proactive b/c it encourages standards and protects.
§         Burden of proof is lessened b/c administrative agencies often get deference to their findings.
o       Advantages of Private Law
§         Personal injury compensation motivates action
§         Any one can bring a private cause of action
§         More likely to result in encouraged legislation.
§         Variety of remedies that can be applied more flexibly