Environmental Law Notes

Tort Law
- Nuisance: Unreasonable interference with another’s enjoyment and use of their real property (land).
- Negligence: Requires establishing duty, breach of duty, causation, and damages.
- Trespass: Occurs when someone enters another’s property without permission.

Nuisance is conduct that unreasonably interferes with the use of land, such as:
- Noise
- Dirt
- Vibration
- Smell (e.g., a turkey farm)
Courts balance public protection against the utility of the activity.
Types of Nuisances:
- Private Nuisance: Affects a limited number of parties.
- Public Nuisance: Affects a larger group of people or the community.
- Criminal Nuisance: Violates a statute.
- Permanent and Continuing Nuisances: Ongoing or recurring.
- Nuisances per se: Nuisance regardless of location.
- Nuisances in Fact: Depends on the specific circumstances and location.

Government Subsidies Approach: Government pays polluters to reduce their emissions. Intended to incentivize environmentally friendly behavior through financial assistance.
Marketable Discharge Permits: Government issues a set number of permits for pollutant discharges.
- Companies can buy and sell these permits among themselves, creating a market for pollution rights.
"Green" Taxes: Government imposes taxes on environmentally harmful activities.
- Aims to discourage pollution by making it more expensive.
Direct Regulation: Government directly regulates pollution; this is the primary approach used today.
Land Use Controls: Regulations on how land can be used.
- Private: In the form of covenants (agreements).
- Public: In the form of zoning laws.

Restrictive Covenants in Private Contracts:
- Examples: Paint restrictions, construction restrictions, roof restrictions.
- Covenants cannot violate state or federal law.
- If there is uncertainty, the covenant is construed in favor of free land use.

Created in 1970.
Largest federal agency.
Mandate: To address various types of pollution:
- Air
- Water
- Solid Waste
- Pesticides
- Radiation
- Toxic Substances
The EPA has the authority to pursue litigation or criminal penalties when businesses emit pollution.
Private remedies also exist, including actions in nuisance.

Entities Involved:
- EPA
- State agencies
- Council on Environmental Quality
- Other federal agencies:
  - Department of Commerce
  - Department of Interior
  - Bureau of Land Management
  - Federal Power Commission

Focuses on the quality of the environment.
Environmental Impact Statements (EIS): Required under NEPA whenever federal action significantly affects the quality of the human environment.

Environmental impact of the proposed action.
Adverse environmental effects of the action.
Alternatives to the proposed action.
Relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity.

Clean Air Act and National Ambient Air Quality Standards:
- Principal statutory means of regulating air quality.
- Primary Standards: Levels necessary to protect public health.
- Secondary Standards: Levels necessary to protect public welfare.
- Toxic Air Pollutants: 189 pollutants that cause serious consequences, even in small amounts.
- Maximum Achievable Control Technology (MACT): Standard that must be met by industry pollution control equipment.

Penalties:
- $25,000 per day.
- Up to 1 year imprisonment, or both.
- $5,000 field citations.
- $10,000 rewards.
Private Suit: Citizen suits authorized; EPA suits for injunctive relief.

Federal Water Pollution Control Act (Clean Water Act):
- Mandates “fishable and swimmable” waters.
- Requires total elimination of pollutant discharges into navigable waters.
- Point-Source Effluent Limitations: Maximum allowable amounts of pollutants that can be discharged from a source within a given time period.
- Wetlands Protection: Requires landowners seeking to add dredged or filled material to wetlands to obtain a permit from the Army Corps of Engineers.
Safe Drinking Water Act: Sets standards for drinking water supplied by public water suppliers.
- “Right to know” provisions mean utilities must provide annual reports detailing water contaminants and their potential harm.

Resource Conservation and Recovery Act (RCRA)
- Manifest Program: Provides “cradle-to-grave” regulation of hazardous waste by requiring that every generator of hazardous waste maintain records on the waste.
RCRA Amendments of 1984 and 1986: Made landfills a “last resort” for disposal of many types of waste.
Enforcement of RCRA: EPA; states can establish their own programs, but EPA retains ultimate authority to investigate and fine violators.

Waste materials discharge and cleanup are regulated by the federal government.
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): Provides for an inventory and cleanup of hazardous waste materials.
Superfund Amendment and Reauthorization Act of 1986: Amended CERCLA.
Money in Superfund is used for toxic waste cleanup.
EPA may sue to recover costs.
To date, Superfund has not been able to recoup its cleanup costs.

Resource Conservation and Recovery Act (RCRA)
- Penalties:
  - $50,000 per day.
  - Up to 5 years imprisonment, or both.
  - $1,000,000 for corporations.
- Private Suit: No private suits; Hazardous Substance/Response Trust Fund for cleanup; EPA suits for injunctive relief and reimbursement of trust funds.

Toxic Substances Control Act (TSCA)
- "Toxic Substance": Any chemical/mixture whose manufacture, processing, distribution, use/disposal may present an unreasonable risk of harm to human health or the environment.
- Pre-Manufacturing Notice: Notification given to the EPA at least 90 days before the first use of a chemical; contains information on the risk posed by the chemical.

Federal Insecticide, Fungicide, and Rodenticide Act
- Registration of pesticides is required for use and selling.
- Restricted Use: Pesticide must be used in a specific manner to avoid posing unreasonable risk.
Food Quality Protection Act of 1996: EPA is required to establish a single, health-based standard for pesticide residues on foods sold in the United States.