Environmental Law

environmental rights

analytical framework that focuses on rights to amenities, services

sustainable development

analytical framework that integrates development with environmental protection

utilitarianism and cost-benefit analysis

analytical framework that sees environmental problems as result of market failures and weighs the cost and benefit of regulations

environmental justice

analytical framework that looks at how environmental burdens are allocated among individuals

factors needed for legal standing

show injury in fact, causal relationship between action and injury, and redressability

EPA’s risk assessment process

hazard identification, dose-response assessment, exposure assessment, risk characterization

type 1 error

reject null when it is actually right - there is no effect

type 2 error

accept null when null is wrong - there is an effect

cost-benefit analysis graph

initially, high improvement for little cost. Later, little additional improvement for a lot more money. Qb - ideal spot for price and environmental protection

private nuisance

unreasonable an substantial interference with use and enjoyment of land

public nuisance

unreasonable interference with interest of community

trespass

intentionally intruding on land owned by another without permission

negligence

failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not

strict liability

liability for damages caused to persons/property by abnormally dangerous activities

qualifications for strict liability

existence of high degree of risk of harm, likelihood that harm will be large, inability to eliminate risk by exercise of reasonable care, extent to which activity is not common usage, inappropriateness of activity to place it is carried on, extent to which its value is outweighed by its danger

benefits of regulation

prospective protection, unecessary to show causation, make public/private distinction irrelevant, avoids negligence vs due care debates

prescriptive regulation

mandating what parties can and cannot do

property rights

creation/recognition of property rights for individuals or communities to encourage care of land

financial penalties

charges, taxes

financial payments

subsidizing, spending power

persuasion

publicizing harm

regulatory instruments in regulatory toolkit

prescriptive regulation, property rights, financial penalties, financial payments, persuasion

regulatory takings

govt takes private property w/out owners’ having a choice - limit use of property and therefore diminishes its economic value to owner

regulatory impact analysis

agencies must say environmental impact of projects- costs and benefits must be disclosed

command and control regulation

using punishments to discourage harm

sovereignty

defining rights - often starts with conquest

ownership

using rights - acting under sovereignty

property

collection of protected rights - possession, using, excluding, alienating

common law

judge-made law

public trust doctrine

states may not privatize certain property bc it is held in public trust

the law of preemption

federal laws are not presumed to override state law unless that was the explicit purpose of Congress

tort law

law of injury- negligence, nuisance, and trespass

key points of negligence

defendant has duty of care, defendant breached duty, breach of duty was cause of harm, proximate cause, legally recognizable injury to plaintiff

proximate cause

actual cause that is also legally sufficient to support liability

prudential requirement

requirement for standing that says that the injury must be within the zone of interests that underlying statute is designed to protect

SLAPP suits

strategic lawsuits against public participation that intimidate citizen groups with massive damages or increase litigation costs - pit free speech against harms of false claims

US v. Lopez

US court decision determining that Court can somewhat limit Congress’s commerce power. Court struck down Gun free school zone act - Congress stretched idea of commerce too far in claiming Lopez could not have gun at school based on interstate commerce

2 agency models

scientific expertise, interest group representation

scientific expertise

agency model where legislatures pass broad statutes outlining general goals, then delegate the technical implementation to specialized bodies

interest group representation

agency model that views agencies as mini legislatures. special interests battle to influence implementation of laws

Chevron deference

when federal statute is silent or ambiguous about a particular regulatory issue, courts should defer to implementing agency’s reasonable interpretation of the law

importance of delhi sands flower-loving fly

endangered species, habitat was protected under interstate commerce against development from road and hospital

the delegation doctrine

only congress may legislate

importance of schlecter v us

congress can’t abdicate or transfer essential legislative functions

what makes up authorizing legislation

issue rules/ regulations, enforce rules, adjudicate disputes

enabling legislation

power that congress uses to create agencies

Administrative Procedures Act

mandates procedures to guard against arbitrary and capricious use of power, provides for citizen suits and judicial review, balances interests of individual freedom and the free market with the need for expert oversight and problem solving

informal rulemaking process

agency drafts-publishes for public comment-public comments-final rule published OR agency redrafts based on public comment