Reasons for why environmental law looks like it does:
· Nature of the problem being addressed
o Environmental law must address the problem it is addressing
· Nature of the nation’s law-making systems
o Our laws reflect our country’s law-making systems
· Widely different views concerning how much we want to protect the environment
Look at environmental law in theory & practice because there are differences (think Argentina)
Difference between Natural Resource Law & Environmental Law
· Natural Resource Law
o Resource conservation & preservation
o More of a property based law
o Dept of the Interior
o NEPA & mining are both
o Historical purpose: settle the nation via private ownership of natural resources
o Natural Resource Management Laws (early 20th century)
§ Antiquities Act of 1906
§ National Park Service Organic Act of 1926
§ Migratory Bird Treaty Act of 1918
§ Federal Power Act of 1920
§ Mineral Leasing Act of 1920
§ Taylor Grazing Act of 1934
§ Submerged Lands Act of 1953
§ Today 30% of nation’s land is owned by the government
· Environmental Law
o Pollution & control
o More of a tort based law
o EPA
o NEPA & mining are both
Background/History (Since about 1970)
· Pre-1970
o There was natural resources law
o Property law regulated environmental disputes
o Public property doctrine, ownership, & rights determined how to use environmental resources, conservation, etc.
§ Assign private property rights & let the market take care of things
o Environmental issues sat at the edge of tort law (nuisance law)
§ Do what you want with your property. Nuisance was a footnote. Environmental issues were largely incidental.
§ That footnote is now the text of environmental law.
§ Now nuisance fills the gaps
o Federal law
o Dr. Alice Hamilton: first Harvard woman tenured professor. Did work on the dangers of phosphorus
· 1970s
o The Nixon Administration
§ January 1st, 1970: Nixon signed NEPA (the Magna Carta of Environmental Law)
§ February 2nd, 1970: Nixon gives probably the most thoughtful, forward-looking speech on the environment that any President has ever given
§ November 1970: Nixon got no reward/credit for the environmental laws in the mid-term elections
§ December 5th, 1970: Nixon creates EPA, not a cabinet agency
ú Creates NOAH & puts it in the Dept of Commerce
§ December 31st, 1970: Nixon signed the Clean Air Act
§ The 1970s environmental laws set ridiculously high standards, don’t consider costs, & set crazy fast deadlines. “Man on the Moon” mentality
o Energy crisis in mid-1970s
o States rebelled against the laws & so did individuals. But laws don’t change
· 1980s
o Reagan Administration—1981-1989
§ “Bring EPA to its knees”
§ Environmental laws as an example of big government trying to control what people do
§ Public outpour regarding what is happening with EPA
ú The first EPA administrator comes back
§ Pass a bunch of new laws that are even tougher than the 1970s laws
§ Superfund law passes in December 1980 (during a lame duck—dead duck—congress. The new senate coming in was a Republican)
ú Also passed the Alaska National Interest Lands Conservation Act
§ These laws took more discretion away from EPA by saying “If EPA doesn’t set regulations by X deadline, here are the default regulations that will be set in place”
§ By the end of 1980s, everyone is an environmentalist
ú George Bush runs as an environmental republican and has Bill O’Reilly head EPA
· 1990s
o Bush administration
§ Clean Air Act of 1990: Even stricter, even less left to EPA. Ambitious.
§ Bush gets no political return for environmental laws
§ Bush turns during the second half of his term
§ As much as congress isn’t changing the laws, one area that did shift in the 1980s are the courts. There are now more people on the courts who are more skeptical of the environmental laws & how they interfere with other values, such as property rights, federalism, judicial activism, etc
ú They push back
o The Pope was also an environmentalist
o Time: Planet of the Year
o Clinton Administration
§ Al Gore is a super environmentalist
ú Published “Earth in the Balance: Ecology & the Human Spirit” before Clinton was even elected
§ Clinton wasn’t an environmentalist
§ 1994 Contract with America
ú Targeted environmental law & EPA for interference with states, businesses, and private property rights
ú Congress hasn’t passed much environmental laws since this time
· 2000s
o Bush Administration 2001-2009
§ Cuts back on environmental laws
§ Both chambers of congress were also Republican
ú Means significant overhaul of the law
ú Make the laws more “reasonable”
· But there is political backlash & no legislation passes. They are forced to do what they want to do by regulation & interpretation of statute
o Obama Administration
§ Campaigned on climate change
§ Puts all the pieces together
ú EPA: Lisa Jackson (big issue was climate change)
ú CEQ: Nancy Sutley (big issue was climate change)
ú Plus others
ú In congress: Nancy Pelosi, Harry Reed (primary agenda was climate change), Barbara Boxer
§ 2009 & 2010 Obama really promoted the issue of climate change
ú Complete change in 2011 & 2012: “Carbon pollution” instead of “global warming”. No legislation as of 2012
· Why is it so hard? So dependent on politics
o Environmental laws impose immediate costs on people
o Politicians speak in terms of 2-4 years. They are very responsive to short-term costs
o Environmental laws impose short-term costs
o People have to change their lifestyles. Liberty issues
o Create costs for some (focused spatially & temporally) & benefits for others (spread out, dissipated over time & space). When you spread costs & effect across time & space, it becomes harder to believe. It’s harder to know what will actually happen. Nature of the problem is uncertainty. Makes it super hard.
An Introduction to Environmental Lawmaking & Environmental Law: Background Principles of Environmental Common Law & Approaches to Regulation
CB 61-72, 76-88; 88-99, 129-134, 139-150
Workings of Ecosystems that Environmental Law Must Reflect
· Our ecosystem is full of chemical cycles. Ex: Sulfur cycle, carbon cycle, water cycle. These cycles move things to different locations and to different physical states. These cycles often express themselves in the climate. Seasonally, annually, by decade.
· The implications of this for environmental law are dramatic
· Plus there’s scientific uncertainty
o Makes it very hard to figure out what to regulate because you have a moving target. It’s hard to know where to regulate too because you have varying processes. Have to take a step back to make a rational decision. Have to take it all into account (and change) all in order to not make a drastic mistake.
ú Environmental law can’t ignore these ambiguities: Seasonal, geographic, etc. Different susceptibilities within & between species.
· Technology & the ecosystems change over time. This means the laws must change over time.
· Take into account cost & technology with extreme uncertainty
· Its very hard to know the different effects of different pollutants & different levels of pollutants on human health
o Best way to do this is through a controlled experiment, but there are obviously ethical limits here
· The effects are not necessarily linear
· Bioaccumulation: The persistence of some pollutants over time resulting in a build-up of contamination over time
Human Nature that Environmental Law Must Reflect
· Environmentalists don’t like to compromise like politicians
· Often marked as zealous
· Environmentalists believe in absolute limits and bounds. Doesn’t work well in politics
· Hardin’s The Tragedy of the Commons: People are short sighted (Mr. Magoo) & short lived (especially when considering the lives of ecosystems
· The unavailability heuristic: we don’t see things that are hard to access over time & space
· People have very different value hierarchies
o Human-centric
o Bio-centric (human & nonhuman)
o Eco-centric (ecosystem more broadly & the planet)
o Moral and spiritual question
o Economic question (cost & benefit)
· The challenge of environmental law is to make the allocated efficient decision
o Life is about trade-offs
· If you cause society to be less wealthy, it will be less healthy
· There are priceless values (Ackerman & Heinzerling): Ex: human lives
· Strike a difference between economic (cost-benefit) analysis, but also stress distributional fairness
Law-making Systems that Environmental Law Must Reflect
· Environmental Law is essentially regulating the here & now for the there & then
· Separation of powers
· Environmental law presses for delegation because of the uncertainty of this type of law. This pushes law-making away from the body that’s most responsive to the elective (legislatureàexecutive)
· Very hard for the judiciary to get involved
o They struggle to understand environmental law cases
· Hard for separation of powers to work with environmental law
· Fragmentation of authority in each branch of government
o Legislature: super hard to pass a law
o Environmental law affects many parts of the economy, so many committees want a piece of it
· Environmental law isn’t just EPA
· The government is simultaneously regulator & regulated
· Environmental law is usually pushing for centralized power
· Bill of rights is all about the limitations on governmental authority
o Environmental law runs into these limitations all the time
· The political process
o Campaign donations & people tend to vote based on here & now
o The there & then has an incredible disadvantage in the voting process. Only vote by proxy
Donora, PA October 1948
· Thermal inversion. 25-50 people died, thousands became ill
London 1950
· Lots died because of stagnant air pollution
Los Angeles 1955
· “Smog”
Rachel Carson, “Silent Spring”, 1960s
· Tapped into people’s fears
· The atomic bomb changed people’s beliefs
o We have the capacity to change the environment/geography/ ecosystem permanently & very quickly
o Doomsday clock
o The Population Bomb
o The Toxic Time Bomb
· Science also increased people’s fears by informing them of levels of contamination that they were unaware of before
· The moon landing & pictures of earth from the moon
o There was hope, but the earth looks pretty fragile. This worry helped fuel a political movement.
· 1969
o Things that you could now see on tv:
§ Cuyahoga, Ohio (1969)
§ Santa Barbara Oil Spill (1969)
§ Assassination: MLK & Kennedy
§ Riots/protests, etc.
o Environmental law provided hope during this time
Common Law
· Background
o Incredibly important to understanding environmental law
o Asks the same questions that modern environmental law asks
o The common law is still there & provided the framework for the environmental statutes of the 1970s. But it isn’t just a launching pad for environmental law, it is the background of environmental law. It fills in the gaps in the statutes.
o The statutes are regulatory statutes. This is a different question than whether you are liable. The liability questions still remain in the background.
o Tort law is the pre-cursor to modern environmental law. But it is more than that. It is still there and today you can see global climate change questions being based in the common law (usually nuisance law—public & private nuisance law)
o The traditional approach to nuisance law was pretty unforgivable
o The original focus of nuisance cases was the plaintiff
§ Had to decide if it was unreasonable depending on how substantial the plaintiff’s injury was
o The early shift was from trespass to nuisance where the question was unreasonable, substantial harm
§ The problem here was that you’re not looking at the cost and/or benefit to the defendant. And also not looking at the cost to society.
o How you determine reasonableness shifts over time
o There’s a way the courts split the different: damages vs. injunction
§ The remedy question is different than the lawfulness question
o Tarlock
§ Argues that environmental law could be viewed as representing “a radical break with Western legal tradition,” including both the common law & constitutionalism, because much of it seeks to protect natural systems & future generations that traditionally aren’t recognized as having legal personalities.”
· Private Nuisance
o Non-trespassory invasions of another’s interest in the private use & enjoyment of land
o Requires a showing of significant harm
o Interference must be intentional & unreasonable or actionable under rules imposing strict liability on those engaging in abnormally dangerous activities (ex: Rylans)
o Aldred’s Case: Pig sty was held to be a private nuisance because of the stench it generated interfered with Aldred’s enjoyment of his property.
o Performed a kind of zoning function
o Madison v. Ducktown Sulpur, Copper & Iron Co. (1904)
§ Facts: Claiming that their timber & crop interests had been badly injured by the smoke & noxious vapors from D’s copper reduction plants, P & other landowners in the vicinity sought to enjoin D’s operation.
§ Holding: No. Damages awarded. Injunction denied.
§ ***Majority Opinion Reasoning: (Neil)
ú Rule: The granting of an injunction is not a matter of absolute right but rests in the sound discretion of the court, after a full & careful consideration of every element pertaining to the injury.
§ Notes:
ú Environmentally polluting facilities tend to be on state borders so that the pollutants go to another state. They do it with water and air.
ú A very discrete, immediate, disastrous, destructive affect on the downwind ecosystem
ú Court gives damages, but not an injunction. An injunction would cause economic disaster.
· Essentially the court is forcing these people to sell their property (kind of like Kelo)
o Intrusion on liberty to do what you want with your property & not have the government take it
ú One of the challenges of common law litigation is that the plaintiff has the burden of proof
· Public Nuisance
o More promise for environmental protection
o An unreasonable interference with a right common to the general public
§ R2 Torts §821B: Consider whether the conduct
ú 1) Involves a significant interference with public health, safety, comfort, or convenience
ú 2) Is illegal
ú 3) (or) Is of a continuing nature or has produced a long-lasting effect on the public right that the actor has reason to know will be significant
o Missouri v. Illinois (1906)
§ Facts: When Illinois (D) began to discharge Chicago’s raw sewage into a canal emptying into the Mississippi River, P brought suit to restrain such discharge, alleging that the water would be made unfit for use by its cities.
§ Holding: Yes. The presence of causes of infection from P’s own actions indicate that P hasn’t proved cause in fact.
§ ***Majority Opinion Reasoning: (Holmes)
ú Rule: Where a sovereign power deliberately permits discharges similar to those of which it complains, it must prove that its own conduct didn’t produce the complained-of result.
§ Notes:
ú Court says Missouri hasn’t met the standard of proof. Made them meet the strictest standard of proof because
o 1) St. Louis was doing the same thing as Chicago
§ If Chicago is liable, downstream cities are going to start suing St. Louis too.