Environmental Law: A Structural Overview Flashcards
What os the structure of environmental law?
It is primarily a synthesis of pre-environmental common law rules, principles from other areas of law, and post-environmental law statutes which are lightly influenced by the application of concepts derived from ecology and other areas of science, economics, and ethics.
Why does Dan Tarlock argue that Environmental Law is a major break from Western Legal tradition
Because much of it seeks to protect natural systems and future generations that traditionally are not recognized had having legal personalities.
When did the environmental law explosion occur?
1970s
What is the difference between nuisance law and trespass law?
Nuisance law is designed to protect against invasions of interests in the use and enjoyment of land, while trespass protects against invasions of interests in the exclusive possession of land. In private nuisance law, unlike trespass law, liability requires a showing of significant harm. Moreover, the interference with property rights must be intentional and unreasonable or actionable under rules imposing strict liability on those engaging in abnormally dangerous activities.
What did common law largely rely on to solve environmental controversies?
Nuisance law as well as trespass law.
What has been an age-long struggle of Nuisance law?
It has struggled with the problem of how to determine the level of harm or risk that requires compensation.
What is a principal in nuisance law which addresses the use of private property to disturb another’s property?
Sic utere tuo ut alienum non laedas”-use your own property in such a manner as not to injure that of another
What was so difficult about pairing early nusiance law with environmental law?
Early nuisance law performed a kind of zoning function by initially encouraging noxious activities to move away from populated areas.
In Sturges v. Bridgman, L.R. 11 Ch. D. 852 (1879) in london, what did the judges decide with regars to entitlement to pollution-free air?
Judges observed that plaintiffs were not entitled to pollution-free air, but rather to “air not rendered to an important degree less compatible , or at least not rendered incompatible, with the physical comfort of human existence.
In Hole v. Barlow, what did U.S courts decide with regards to the level of harm which must be tolerated in nusiance law?
Rejected the notion that activities causing substantial harm can be tolerated if they are conducted in a lawful and convenient place. Maryland Court of Appeals put this nicely in 1890:
“The law, in cases of this kind, will not undertake to balance the conveniences, or estimate the difference between the injury sustained by the plaintiff and the loss that may result to the defendant from having its trade and business, as now carried on, found to be a nuisance. No one has a right to erect works which are a nuisance to a neighboring owner, and then say he has expended large sums of money in the erection of his works, while the neighboring property is comparatively of little value. The neighboring owner is entitled to the reasonable and comfortable enjoyment of his property, and, if his rights in this respect are invaded, he is entitled to the protection of the law, let the consequences be what they may. [Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 A. 900, 902 (1890).]”
Despite the high talk in Sasquehana Fertilizer Co. v. Malone, how has the United States generally approached compensation for nuisance claims?
Mostly plaintiffs are compensated but there is rarely injunctive relief.
When was private nuisance law generally applied in flourishing industrial towns?
“Recovery generally was only permitted for actual, physical damage to property that caused a decline in its market value. Property values generally increased with industrialization even in contaminated areas, making recovery difficult”
How dis courts protect industrialists/ factories in teh industrial era?
“Fearful of discouraging industrialization, courts held factories liable only in rare cases where the pollution was so devastating that it produced a “scene of desolation” for miles around, as in Tipping’s Case. Id. at 416. Moreover, many of the largest polluters were public or quasi-public enterprises that were protected from liability because their actions were authorized by statute”
What is an issue with curent private nusiance law under the Restatement of Torts (Second) as regards the requirements for spmething to be classified as a private nuisance ?
“The Restatement of Torts (Second) defines private nuisance as “a non-trespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement of Torts (Second) §821D (1978). Only those who have property rights and privileges with respect to the use and enjoyment of the land may recover, and only if the harm they suffer is significant. Why does nuisance law require a showing of significant harm, while trespass law does not? The Restatement provides that to constitute a private nuisance the invasion of property rights must be either “intentional and unreasonable; or unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.” §822. Why do intentional invasions of property rights that cause significant harm have to be unreasonable in order to be actionable as a private nuisance?”
How did the aecond restatement of torts re-define private nuisance?
“The Restatement of Torts (Second) defines private nuisance as “a non-trespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement of Torts (Second) §821D (1978). Only those who have property rights and privileges with respect to the use and enjoyment of the land may recover, and only if the harm they suffer is significant. ”
Is a decline in property value caused by proximity to a polluted site actionable at common law even if there is no proof hat the pollution seeped onto the plaintiff’s property?
“In Adkins v. Thomas Solvent Company, 487 N.W.2d 715 (Mich. 1992), the Michigan Supreme Court held that 22 property owners who lived near a contaminated site could not recover for the diminution of their property values because no contaminants actually had migrated to their property and a hydrogeological barrier precluded such migration in the future.”
When pollutants physically invade the property of another what may it constitute if not a private nuisance?
Liability may be premised on a theory of trespass. “In Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (Or. 1959), the Oregon Supreme Court affirmed an award of $91,500 in damages to farmland due to fluoride emissions from a nearby aluminum plant that settled on the land and poisoned cattle. The court held that the intrusion of fluoride particles constituted a trespass because the particles invaded the property owner’s interest in exclusive possession.”
What constitutes an invasion of property rights under restatement of Torts (Second)!
“In defining what constitutes an intentional invasion of property rights, the Restatement focuses on the foreseeability of harm. For certain kinds of activities that result in environmental harm, this may have important consequences. For example, the Restatement deems pollution of groundwater to be far less foreseeable than surface water pollution. It notes that invasions of property rights that result from discharges to lakes, streams, and surface waters ordinarily should be considered intentional, because such discharges are substantially certain to cause such an invasion, particularly if the pollution is continued for any length of time. However, invasions resulting from the pollution of groundwater “are ordinarily not intentional since the course of such waters is usually unknown and the actor can thus foresee no more than a risk of harm in most cases.” Restatement of Torts (Second), §832 comment f”
Are foreseeability requirements a formidable obstacle yo using common law to recover for contamination caused by dumping practices?
Yes
What is the doctrine of anticipatory nuisance?
“The doctrine of anticipatory nuisance allows plaintiffs who can persuade a court that an activity about to be undertaken would constitute a nuisance to obtain an injunction blocking the activity. While it can be very difficult to prove a nuisance ex ante, filing such an action can generate the kind of assurances the Staso Milling court relied upon to enjoin water pollution in that case.”
How does the second restatement of torts define “unreasonable”?
“Second Restatement added an alternative criterion of unreasonableness in section 826(b). It states that an intentional invasion is unreasonable if either the gravity of the harm outweighs the utility of the actor’s conduct or “the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.” This has supplemented what appeared to be a kind of risk-benefit calculus of reasonableness with an alternative test focusing on the financial feasibility of damages. A further embellishment was added by section 829 of the Second Restatement. It states that even in cases where compensation is beyond the financial capacity of an enterprise, an invasion should be deemed unreasonable if the harm it causes “is severe and greater than the other should be required to bear without compensation.”
How would an economical analysis of solutions to nuisance problems look like? What does it ignore?
It would look to involve remedies that minimize the joint costs or maximize the joint value of interacting activities. “If only the polluters determine the extent of harm, then a rule holding polluters strictly liable for the damages they cause is efficient because it will induce them to take the efficient amount of care while ensuring that the prices of their goods reflect their full social costs. However, if the victim’s behavior can affect the extent of damage (e.g., by moving away or by investing in measures that shield her from the effects of pollution), economists argue that strict liability is only efficient if a defense of contributory negligence is recognized, because victims otherwise will have no incentive to take actions that can avoid damage more cheaply. ”
What is a conditional injunction?
“flexible remedies that take advantage of market forces to determine which party can control costs most effeciently
What is a famous NY Court of Appeals Case which used conditional injunction as a solution to remedy for pollution and a market approach to resolving incomplete cost-benefit analysis information?
“New York Court of Appeals in the famous decision of Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970). The court in Boomer issued a conditional injunction barring the operation of a cement plant whose air emissions had caused substantial damage to nearby property until the plant paid surrounding residents the full value of their permanent damages if the plant continued operation. The theory behind this approach was that the plant would opt to continue operations only if the operations had more economic value than the cost of the damage they produced. ”
How has the Second Restatement of Torts defined a public nuisance?
“An unreasonable interference with a right common to the general public”
How has the Second Restatement directed courts to consider the viability of an actionable private nuisance?
“In determining whether interference with a public right is unreasonable, the Restatement directs courts to consider whether the conduct: (1) involves a significant interference with the public health, safety, comfort, or convenience; (2) is illegal; or (3) 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.”
What does Thomas Merril opine with regards to the decision in Missouri v. Illinois (200 U.S 496), 1906?
“Thomas Merrill ( in Golden Rules for Transnoundary Pollution) describes the decision in Missouri v. Illinois as an endorsement of “the reverse golden rule: in a transboundary pollution case, the affected state cannot demand that the source state adhere to a higher standard than the affected state applies to its own citizens”
In “New York v. New Jersey, 256 U.S. 296, 309 (1921)”, on what basis did the court deny New York relief for an injunction to prevent New Jersey from discharging raw sewage into New York Bay?
“The Court declared that before it would act “to control the conduct of one state at the suit of another, the threatened invasion must be of serious magnitude and it must be established by clear and convincing evidence. “The Court emphasized that New York had failed to prove that there were visible suspended particles, odors, or a reduction in the dissolved oxygen content of the Bay sufficient to interfere with aquatic life. It also observed that New York itself discharged sewage from 450 sewers directly into adjacent waters.”
Can a state be held responsible to provide the necessary funds to complete construction of sewage treatment?
Yes, there is precedent in “Wisconsin v. Illinois, 289 U.S. 395, 406 (1933) (holding the state of Illinois responsible for providing the necessary funds to complete construction of sewage treatment works for Chicago)”
What was Georgia v. Tennesse Copper Co.?
“1904, the year that the Tennessee Supreme Court had decided not to enjoin operation of the smelters, Georgia filed suit in the Supreme Court, complaining that the smelters’ emissions crossed the border and caused considerable property damage in Georgia. Georgia asked the Supreme Court to enjoin operation of the smelters. In response to Georgia’s lawsuit, the companies pledged to change their method of operation to reduce their emissions. Georgia then agreed to dismiss its lawsuit without prejudice. But after the smelters installed tall smokestacks that simply transported the pollution across a wider swath of territory, Georgia again filed suit.”
In Georgia v. Tennsesse Copper Co 206 U.S 230, what was an interesting thing that the Supreme Court set aside with regards to the plaintiffs complaint?
“The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. The alleged damage to the State as a private owner is merely a makeweight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads.”
On Georgia v. Tennesse Copper Co., what case was refferred to when Justice Holmes delivered the opinion of the court with regards to state sovereignty?
“When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court. Missouri v. Illinois, 180 U.S. 208, 241.”
Missouri v. Illinois, 200 U.S 496, created what requirements?
Requirements to make a case for environmental damages.
Who won in Georgia v. Tennesse Copper Co.?
Georgia, because it showed due diligence and was not guilty of laches, and the pollution was a violation of Georgia’s sovereignty to control the air, land, and other natural resources within its borders under its quasi sovereignty as apportioned to it by the constitution.
To quote Justice Holmes “It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control”
