Part 1: Introduction

Environmental Law Outline

Part 1: Introduction

I.  Background

a.  Environmentalism- view that unrestrained modification of natural systems through resource exploitation and development and the unchecked application of technology has substantial, accelerating and potentially adverse consequences for humankind

i.  Society should value ecosystems intrinsically (for their own sake) or for the beneficial services that they provide to humans

ii. Environmentalism encourages the weighing of resource demands against the ability of ecosystems to withstand pressures of use and development

b.  Environmental Law: Body of law that seeks to reduce the risk of harm to help the environment. An effort to address risk in light of the uncertainty that surrounds existence, scope or causes of the risks

c.  Sax Views of Property Rights:

i.  Transformative economy perspective- property as existing to be modified and reworked for human benefit

ii. Ecological perspective- land and nature are already at work, performing important services

d.  Historical Arc of Environmental Law

i.  Wilderness and Natural Resource Values: reconciling reckless individualism, exploitation of resources, then New England transcendentalists reinvented nature

ii. Conservation and Preservation Movements. Split in Hetch Hetchy dam being built

1.  Preservation- Preserve areas of public lands to remain wilderness (Muir)

2.  Conservation- progressive effort to reconcile democratic and scientific values compatible with social Darwinism (Gifford Pinchot)

e.  Modern Environmental Era

i.  Pre-1968: Technological development and progress is always beneficial

1.  Overlooking long-term environmental repercussions of activities

2.  Lack of information on the impacts of development

3.  Nature is to be exploited- no intrinsic value

ii. Late 1960s: Growth of suburbs in post WWII suburbia

1.  No environmental laws before 1968, growth of synthetic chemicals

2.  Scientific advancement in understanding impacts of development

iii.  1968-1973: Pollution control technology, NEPA, CAA, CWA

1.  Democratic Senate, Nixon, competition to be more “green”

iv.  1973-1980: Growth of TSCA to respond to increase in cancer risks

1.  Santa Barbra Oil spill in 1969,

2.  Availability of new scientific information led to CERCLA, RCRA, SDWA, development of environmental laws

v. 1980-1988: Environmental bipartisanship began to decrease

1.  Increase in globalization, disputes over global commons

vi.  1988-Present: Little environmental innovation

1.  Narrowing reach of Oil Pollution Act, CWA

2.  Court decisions limiting federal regulatory power, CERCLA amendments limiting liability

3.  Industry opposition to regulation (but not subsidies), disconnect between environmentalism and rationality and our technology-based civilization

II.  Economic Analysis

a.  Goals of Environmental Laws:

i.  Harmful conduct that creates no liability for the agent of harm will be produced in excess

ii. Encourage cost-internalization: People who cause environmental harm are responsible for the costs associated with that

iii.  Promote Sustainable Resource Development- Resources society uses shouldn’t deplete natural resources (clean air and water) so that they will be unavailable in the future

iv.  Be Efficient: Achieve a policy goal at the most efficient and effective way possible- efficient pursuit of environmental perspectives

b.  Economics can: (1) Explain why harms occur, (2) Justify government intervention when free market won’t produce efficient results, (3) Helps identify the optimal methods for preventing environmental harm

1.  Externalities are pervasive and so government intervention is necessary to prevent these externalities

c.  Economists Perspectives:

i.  Tragedy of the Commons- Garrett Hardin

1.  Problem of externalities without constraints

2.  Difficulty in assigning property rights to air and water

ii. Invisible Hand- Adam Smith’s - What is the optimum population?

1.  How to solve: Privatize OR Make people liable in damages for the harm that they cause either in common law or in tort (nuisance)

2.  If costs are internalized through damage actions, people will make decisions in alignment with society’s interests by taking steps to avoid costs of harm on others

iii.  Government v. Administration- William Ophlus

1.  How do you regulate temperance? Complexity of regulating protection mechanisms between competing powers (state/federal/local, courts/legislature/agencies)

2.  Small locally autonomous self-governing communities rooted in the land- federal government should only be required for few, clearly defined purposes

iv.  Problem of Social Cost - Coase

1.  Unavailability Perfect Information about market choices

a.  So how can we get the information needed for economic models designed to prevent pollution?

b.  Could adopt programs that require disclosure (consumer protection to ensure informed choices)

2.  High Transaction Costs related to good allocation

a.  Increases with more involved parties

b.  Mancur Olson- high costs of collective action

c.  Transaction costs will prevent an efficient negotiation of demands, especially if there are multiple parties involved

d.  Lack of incentives to disclose information needed to find the optimal solution (law could require some disclosure)

3.  Externalities- Prevent free market from working

a.  Negative externality- Burdens imposed on others, cost- avoided by not having to internalize the costs of reducing pollution (doesn’t consider costs of emissions when considering how to price)

i.  Human made, un-bargained for negative consequence borne by someone other than the person producing the harm

b.  If the price reflects accurately the price of the good- then know the opportunity costs of the resources used to make the good, so we can better make informed decisions

c.  Too simplistic to make a regulation that makes people internalize costs- negative externalities are reciprocal, not unilateral

d.  Competition between incompatible use of same resource

d.  Cost Benefit Analysis (page 218-223)

i.  Almost no EPA regulations mandate use of cost-benefit analysis

1.  CBA have been imposed on agencies through executive orders

ii. Economics criticizes whether society will benefit or be harmed by regulation- what is the optimal level of regulation?

1.  Rational choice is impossible without a full understanding of the consequences of a decision

iii.  Assumptions: (1) You can identify and valuate social benefits (deaths averted and environmental degradation avoided) (2) identify and price the costs (opportunity costs and transaction costs), (3) predict quantitatively the net posture of the activity (net increase in social utility)

1.  Some prohibit EPA from using CBA in making regulatory decisions

iv.  Criticisms: (1) Cost estimation is very difficult and frequently inaccurate-

1.  Big problem with the regulatory agencies relying on regulated communities to give information about costs (industry’s estimates are biased- would always guess too high)

2.  What are people’s “willingness to pay” for certain items?

v. (2) Difficulty in valuing benefits too- hard to quantify value of future benefits

1.  Finding a value of human lives (old v. young people? Disabled?)

2.  Discounting of future benefits against environmental protection

a.  Better off saving 1 person today than regulating and saving 1 billion people 500 years from now

vi.  (3) CBA ignores distributional consequences- should focus on equity as well as efficiency- CBA ignores environmental justice issues

1.  OMB estimated that EPA’s regulations cost around $16B but benefited 44 to 233B (reduction in asthma due to improved air)

III.  Environmental Law & Ethics

a.  Issues in Environmental Law: Not clear how imposing limits on areas that have the potential to pollute will help people (do protections help people or bugs?)

i.  Not clear what are the causes of adverse environmental affects

ii. Environmental protection can’t be achieved without significant costs

iii.  Powerful industry groups mostly impacted

iv.  Some people benefit/are harmed more than others

v. Restrict how private property owners operate

vi.  Concerned about the opportunity costs of regulating

vii.  Do environmental goals conflict with other social goals- energy independence (do we know enough about trade offs)

b.  Aldo Leopold- “A thing is right when it tends to preserve the integrity, stability and beauty of the biotic community. It is wrong when it tends otherwise”

c.  Land Ethic Theory: Community with interdependent parts, eco-centric viewpoint

i.  Responsibilities extend to the protection of resources for future gen’s

ii. No right to destroy species to satisfy our own consumptive need- moral obligation to protect rather than destroy environment

iii.  Leopold encouraged police power to protect environmental resources

d.  Green Property Theory: Incorporate the principles of stewardship into the individualistic liberal theories of property

i.  Should there be a duty imposed on current generations to protect future generations’ access to resources?

ii. Issues with environmental law and regulation- private property challenges under takings or nuisance weren’t successful

e.  Science Magazine: Nature is never in a state of equilibrium

i.  Allows policy-makers to ID environmental degradation (but not causes)

IV.  Common Law

a.  Statutory/regulatory law has replaced common law in the environmental field

i.  Most federal statutes preserve common law remedies, most statutes do NOT create a right to damages created by environmental harm

b.  Native Village of Kivalina v. ExxonMobil Corp., 2012 WL 4215921 (9th Cir 9/21/12)

i.  Village sued utilities and oil companies for contribution to their tribe’s loss of land due to rising sea levels

ii. Lower court said political question, no standing, 9th circuit affirmed

1.  Federal common law can apply to trans-boundary public nuisance suits

c.  Why to Preserve Common Law Remedies:

i.  (1) Without common law, no monetary remedy to be compensated for damages caused by environmental pollution

ii. (2) Common law compensates people for harms that takes place in complying with traditional regulatory approaches

iii.  (3) Gov’t agencies aren’t always diligent in enforcing pollution control laws

d.  Tort Law: Shifts losses from deserving plaintiffs to culpable defendants

i.  Elements: Different depending on cause of action, but have to prove (1) liability, (2) causation, and (3) damage/injury.

1.  Other needs: duty, near foreseeability, or strict liability

ii. Toxic Torts: Current science may not be able to explain derivation of a certain injury (like unknowns related to cancer)

1.  Issues with chemical latency period, many sources of carcinogen exposure

e.  Negligence: Most common environmental tort cause of action

i.  (1) If harm P suffered arose from an accident where one can make a reasonable accident that arose from D’s carelessness

ii. (2) Remedies sought are only available in a negligence action

iii.  (3) Defendant’s insurance covers harms caused by negligent conduct, but not intentional – if they are otherwise judgment proof, could still sue and get $

iv.  Elements: Cause in fact, Duty of care, Breach of duty, Proximate cause, and Damage

1.  Difficult to prove breach of duty- especially if complying with permit

f.  Public Nuisance- Good choice if accumulation of injuries by multiple plaintiffs are significant enough to have significant damages

i.  Elements: Unreasonable interference with rights common to the general public (health, safety and convenience)

1.  Usually filed by government entities (on their own behalf, or behalf of their constituents), but sometimes private individuals can if they have standing (damaged in a unique way besides injury suffered by the public at large- like injury to real property)

2.  RST Torts 821(c): Need special injury to get damages for public nuisance cause of action

3.  Missouri v. Illinois: Reversed the flow of Chicago river to shift pollution from Lake Michigan to Mississippi watershed, downstream communities sued

a.  Multiple sources of pollution- how to prove causation?

b.  Court found for Illinois- limits of common law of nuisance to deal with diffuse injuries and risks

4.  Georgia v. Tennessee Cooper: Wanted to enjoin defendant from discharging noxious gas over plaintiff’s land – destroying forests and crops

a.  Public has rights in access to healthy air and uncontaminated land

b.  Damages to these resources caused by the D’s air pollution triggered liability- different rom Missouri v. Illinois because could actually prove what caused damage to forests and orchards (acid rain)

g.  Private Nuisance- Limits damage actions to those who suffer harm of a different kind from that suffered by other members of the public

i.  Elements: Nontrespassory invasion of another’s interest in the use and enjoyment of land (must be unreasonable and cause substantial interference)

1.  When a citizen’s property has been injured by another’s pollution or environmental degradation, private nuisance is a good cause of action (might be limited- can’t sue for aesthetic harm)

ii. RST 821(b): Unreasonable interference if it (1) significantly interferes with the public health, safety or peace, public comfort or convenience or (2) whether the conduct is proscribed by law

1.  An interference w/ the use and enjoyment of land is unreasonable if (1) gravity of the harm outweighs the utility of the act’s conduct (826a)OR

2.  (2) The harm resulting from the invasion is severe and greater than the other should be required to bear without compensation, but only if the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible (829A – stick D w/ liability if D can pay)

3.  Court can impose conditional injunction until factory pays “permanent damages”

iii.  Definition and Elements:

1.  Intentional –D had knowledge or reasonably could have known injury would occur

a.  P has suffered substantial and unreasonable injury to self or property

b.  D’s conduct was a factual cause of that injury

c.  D knew or should have known that its conduct was substantially certain to occur to harm someone like P

2.  Unintentional – Negligent or Reckless à P has to show injury

a.  D’s conduct was a factual cause of that injury

b.  D’s conduct was unreasonable b/c it breached a duty of care owed to P

iv.  Walsh v. Town of Stonington WPCA: Mere fact that an activity is lawful doesn’t shield D from liability if the pursuit of the lawful activity causes harm

1.  D claimed that social value is more important than harm, but court refuted b/c there are other factors taken into utility, including mitigating opportunities (utility of activity reduced by the fact that factory is producing noise, smoke and odors without compensating neighbors)

2.  Rule: Duty of every person to make a reasonable use of his own property so as not to unnecessarily damage his neighbor

3.  Test: Reasonableness of the use of the property in the particular locality under the circumstances

a.  Weighing process involving a comparative evaluation of conflicting interests in various situations according to objective legal standards

4.  If harm had to outweigh benefit, it would be impossible for Ps to recover for harm – don’t want to concentrate harm on Ps for whole society