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Environmental Law
Wayne State University Law School
Hall, Noah Donald

· Much of environmental law is Legal response to problem of externalities
o Externality: you do something presumably bc it has some benefit to you, something you want to do, in the course of doing that, you do something that harms someone else
o Nothing inherently wrong with this, almost everything you do
o Many positive externalities- ex: being in class
o Negative- environmental law focuses on addressing these, like pollution, diminish others prop value, or harm others health
· Env. Law does not necessarily aim to eliminate them, want to trim back on the unnecessary ones
· Tragedy of the Commons
o Common piece of land, everyone overgrazes it
o Ranchers want to add another cow, for their benefit
o You can see it coming, you know what is going to happen
o People are making decisions that benefit themselves, they are imposing external costs on other ranchers (taking resources away from them)
o Pollution Example
· Waste in rivers, our waste gets dumped into rivers
· Traditional waste in a river can be sustainable, rivers can absorb a certain amount of waste
· Because of river’s flow, you put waste in downstream and take water out upstream, but by putting water in downstream, the next town down gets the waste (Classic externality, he has a cost of dealing with that waste water, you have taken all of the benefits)
· Tragedy of Commons problem- if the amt of waste you put in, is bad for next guy, but after a few miles, it goes away, not really a tragedy of the commons problem (basically guy downstream sues you, its over)
§ Tragedy of commons happens when everyone starts doing this and river can no longer absorb the amount of waste
o How does the legal system address this kind of problem?
· Assign a cost for dumping the water that is more than the cost of treating the water
§ Comprehensive Env Response Liability Act
· Nat’l Environmental Policy Act (NEPA) 1969/1970- first major federal env. Law, created awareness, any time fed govt does anything that might create env impact, they have to study it and create awareness ( good response because most of the time externalities are preventable)
· Develop technology that can deal with the problem- require that people use that technology
§ Clean Water Act, Clean Air Act- govt identifies a technology you can use
§ Environmental Law imposes technology it can afford, it might cut into budget a little, but significantly helps their externalized harms
· Create incentives- tax breaks, money, if you come up with new technology you could force competitors to use that technology
· Give exclusive property rights to people
§ Usually first response to tragedy of commons
§ When dealing with land or something manageable by scale, easily containable, assigning property rights works well, it eliminates the commons
§ If it is yours, experience suggests that you will take better care of it, because it is not in your long term interest to harm your land
§ This gets to be tough as a practical matter- ex: air pollution, water pollution, atmospheric problems, global problems, putting toxics in foods and such
· Prohibition of detrimental behavior
§ With enforcement and a law with criminal sanctions is a good way to do it
§ Upsides- ease of administration
§ Downsides- some things are beneficial to society, but their byproducts are harmful, so if prohibited completely you would lose out
· Cant ban all water pollution, would ban a lot of activities that we like, a certain amount of pollution is okay/manageable
· No reason to ban all of them, do not need absolute prohibition
· Environmental law does not generally aim for a prohibition, want to minimize the harm to environment
· Lawsuits
§ Compensation, not trying to punish
· Sustainable Use
o Once you go past that, eventually left with nothing

· Environmental Law is a newer field, really began in the 70s
o Population growth is the reason that it is more now (urban areas and cities)
o Canada doesn’t have stricter laws, and not as much pollution, it is because there is a lower population
o People became more aware of it- the media covers catastrophes, media doesn’t provide data
o Environmental law only going to be solved once the tragedy happens, but not so good at preventing the crises before they happen
o Only fairly recent in human history that we have really created large scale harms where we need environmental law, could use nuisance and tort law to take care of it

Boomer v. Atlantic Cement
§ Established air pollution as a nuisance under NY law, one of the last big nuisance cases before the Clean Air Act
§ Standard legal response to nuisance or trespass action is injunctive relief (stop interfering with the use and enjoyment of their property)
§ Court said in this case it would be too much to enjoin the cement company (this problem is universal wherever cement is made)
§ Legally, Boomer would be entitled to shut the plant down, but in practice, the company would prob offer him money
§ Defendant operates a cement plant and Plaintiffs are asking for an injunction and damages alleging injury to property from dirt, smoke, etc
§ This plant has a lot of positive externalities, but pollution is negative externality
§ Issue: whether the court should resolve litigation between the parties now before it as equitably as it seems possible, or whether seeking promotion of the general public welfare, it should channel private litigation into broad public objectives
§ Defendants have invested a lot in the community and the damage to property is relatively small ($185,000 total for all Ps)
§ Court wants to grant the injunction conditioned on the payment of permanent damages to Plaintiffs which would compensate them for the total economic loss to their property present and future caused by Ds operations
§ Boomer only gets actual damages
§ The Court here is making the same judgment that Congress made with the Clean Air Act, not eliminating all pollution because it harms a few people, we want to see industry move forward
§ Why didn’t Boomer go to state capital and demand regulation of the company?
§ Would have taken a long time, may not get the relief he wanted, even if he succeeded it wouldn’t shut down the plant
§ Quickest way to resolve a dispute between 2 property owners is to just sue each other
§ Dissent:
§ This is a serious problem and a significant source of particulate contamination in the Hudson Valley ; There is harm to the general public
§ The incentive to alleviate the wrong is eliminated, continuing air pollution, it is creating pollution for its own benefit with no public benefit
§ He would enjoin Ds company from continuing the discharge of dust particles upon its neighbors properties unless, within 18 mos, the cement co abated this nuisance

New York v. Schenectady Chemical Co
§ Court must decide if the state can maintain an action to compel a chem company to pay costs of cleaning a dump site to prevent pollution when the dumping took place between 15-30 years ago at a site owned by an independent contractor hired by the chem co to dispose of waste material
§ The company makes paint, phenols, with lots of byproducts which are dangerous to humans, animals and plan

ctioned taking of the “little old lady’s property”
o No takings claims in Michigan yet

Toxic Torts
§ Woburn Toxic Tort Case (A Civil Action) – Anderson v WR Grace and Co, Beatrice Foods
o Anderson’s kid died of leukemia, she got community together and found others sick
o Found out she was not only one at the specialist who had a sick kid, all from town
o Big step was getting all the Ps together
§ Lawyer would ask from Ps:
o Family medical/work history (did they work at chemical plants, around chems?), ask about their goals (not available to shut down plant—hospital bills or compensation would be realistic), prescription drug usage, drug use, experience with the legal system, financial situation, how long they lived there, travel history
o Defense Atty would ask: Did they know that the water was contaminates? Smokers?
§ Hard to ask for preliminary injunction in a toxic tort case
§ In this case, Ds are moving for Summary Judgment on the claim of emotional distress
o In Massachusetts, Need physical injury that resulted from the same conduct that caused the emotional distress
o Ds say Ps didn’t suffer actual physical harm, Ps are claiming that the subcellurlar harm to their immune system is the harm
§ Defense says even if the chems did cause subcell injury, the Ps had to be aware of it and they weren’t until they talked to doctors and experts, and talking to their doctor who told them they may have these probs made their stress go up and prob suffered more
§ Court doesn’t agree, Ps survive this and can claim emot distress from phys inj
o Ps claim emotional distress from witnessing death of family member
§ Zone of danger, physical/temporal proximity to the act, familial prox.
§ Must be child or spouse, need to show special and temporal connection
§ Court says NOT entitled to damages bc P didn’t meet the temporal prox. (watch kid die over long period of time isn’t temporal and contemporaneous)
§ Ps didn’t survive this motion for summary
o Ps case basically got gutted, limits damages, jury would prob have given more money for the death; several Ps were knocked off bc they weren’t allowed to bring the emotional distress for death of a family member
o Claim for increased risk of future illness
§ Needed to have reasonable probability that harm would result
§ Court rules in favor of Ds, too unclear as to Ps increased risks
§ We know that disposing of chems can cause health risks, but there is a lot of uncertainty, not yet known what the causation is going to be, worried about over/undercompensation of individuals
§ Court basically says that bc the externalities have a level of uncertainty that the court is not comfortable with they are not going to address them
§ Middle Ground- while you aren’t certain who will suffer ultimate illness and at what level, you can get a broader statistical idea of what harms are likely to occur overall