SUST 2200-K01: Unit 3A Common Law & The Environment Study Notes

Introduction to Laws for Sustainability: Common Law & The Environment

Sources of U.S. Law & Traditional Concepts

• Common Law

  • Origins: Rooted in ancient legal traditions, including Ancient Greece, Roman law, and Great Britain.

  • Foundational Principles: Based on natural reason, dictates of conscience, and a general sense of justice.

• Legislation

• Institutes of Justinian (Historical Influence on Public Trust Doctrine)

  • A significant collection of Roman civil law, which articulates principles of shared public resources.

  • Quote: "By the law of nature these things are common to all mankind –the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitations, monuments, and the buildings, which are not, like the sea, subject only to the law of nations."

  • Significance: This quote highlights the idea that certain natural resources are common to all, laying a philosophical groundwork for the Public Trust Doctrine.

Historical Foundations of Common Law & Rights

The Magna Carta

• Date: Signed by King John in $1215$.

• Key Provisions:

  • Established certain fundamental rights for British citizens.

  • Affirmed that the King was not above the law, a crucial step towards the rule of law.

  • Guaranteed the right of the church to be free from governmental interference.

  • Secured the rights of all free citizens to own & inherit property.

  • Provided protections from excessive taxes.

  • Established the right of widows who owned property to choose not to remarry.

  • Established principles of due process and equality before the law.

  • Included provisions forbidding bribery & misconduct.

  • Modified the traditional concept of ownership of resources, hinting at public interest.

Petition of Right

• Date: An Act of British Parliament in $1628$.

• Core: A significant statement of Civil Liberties.

• Key Provisions:

  • Explicitly stated that no taxes may be levied without the consent of Parliament.

  • No subject may be imprisoned without cause shown, reinforcing due process.

  • Prohibited soldiers from being quartered upon the citizenry.

  • Declared that martial law may not be used in time of peace.

• Legacy: Carries through directly to the U.S. Constitution & Bill of Rights, demonstrating its enduring influence on American legal principles.

Tying it all together: Magna Carta, Petition of Right, & Public Trust Doctrine

These historical documents and legal concepts collectively laid the foundation for modern environmental and constitutional law in the U.S. by establishing:

• Limits on Sovereign Power:

  • The state cannot alienate public resources (Public Trust Doctrine).

  • The King cannot tax or imprison arbitrarily (Petition of Right).

  • The King must obey the law, signifying that no one is above it (Magna Carta).

• Rights of the People:

  • The right to access natural resources (Public Trust Doctrine).

  • Consent to taxation and liberty (Petition of Right).

  • Due process and fair trials (Magna Carta).

• Rule of Law:

  • The law applies to all, not just subjects (Magna Carta).

  • Parliament holds power over the king (Petition of Right).

  • Public interest takes precedence over state discretion (Public Trust Doctrine).

• Legacy in Modern Law:

  • These principles are widely used in modern environmental and constitutional cases.

  • They heavily influenced the English Bill of Rights and, subsequently, U.S. law.

  • They form a critical foundation of common law and the U.S. Constitution.

Common Law Concepts for Environmental Protection

Common law concepts are:

• Unwritten Rules: Often developed through judicial decisions rather than statutes.

• Amplified in Court Rulings: Precedent set by judicial decisions shapes their application.

• Provides Remedies: Offers legal solutions where statutory (written) law is silent or insufficient.

• May Become Codified: Over time, common law principles can be written into statutory law.

Specific Common Law Concepts Important for the Environment:

• Nuisance: Interference with the use and enjoyment of property.

• Trespass: Unauthorized entry or invasion of property.

• Negligence: Failure to exercise reasonable care, causing harm.

• Public Trust Doctrine: A core principle asserting the state's responsibility to protect certain resources for public use.

Tragedy of the Commons

• Definition: "Depletion of a shared resource by individuals, acting independently and rationally according to each one's self-interest, despite their understanding that depleting the common resource is contrary to the group's long-term best interests."

• Environmental Examples:

  • Overfishing of shared marine ecosystems.

  • Exploitation of water resources, including for irrigation, drinking water, and ecological needs.

  • Unsustainable forestry practices.

  • "Extraction" industries that deplete non-renewable resources.

Elements of Garrett Hardin's Concept (First Set Forth in $1968$)

• Core Issue: Dwindling resources coupled with rising population pressures.

• Hardin's Assertion: There is often "no technical solution" to the problem, meaning technological fixes alone won't suffice.

• Observations: Hardin noted the dangers of absolute freedom in resource use, connecting it to issues like pollution and population growth.

• Driving Force: Increasing individual demands to the point of collective diminishment of the resource.

Conscience vs. Coercion (Hardin's Proposed Solutions)

Hardin suggested two main approaches to prevent the tragedy:

1. Relying on Conscience: Trusting people to act responsibly out of a sense of moral obligation.

2. Using Coercion: Implementing laws and regulations to enforce sustainable behavior.

Elinor Ostrom's Refutation of the Tragedy of the Commons

• Nobel Prize Laureate: Ostrom's work earned her a Nobel Prize in Economic Sciences.

• Empirical Basis: Her theories were based on extensive empirical research, not just a hypothetical case, distinguishing her approach from Hardin's.

• Community Management: Demonstrated that communities can effectively manage shared resources without relying solely on central government regulation or privatization.

• Local Self-Governance: Showed that local groups often create successful self-governing systems. These systems involve collective decision-making, monitoring of resource use, and enforcement of community-developed rules to manage resources sustainably.

• Challenge to Self-Interest: Contradicted Hardin's assertion that individuals are primarily self-interest driven in these scenarios.

• Role of Cooperation: Ostrom's work highlighted that cooperation, trust, and social norms are crucial factors that can lead to sustainable resource management.

• Importance of Local Knowledge: Emphasized the value of local knowledge and adaptive governance, proving that communal management can be a viable and effective solution for avoiding resource depletion.

Nuisance

• Core Principle: Protects a property owner's right to the use & enjoyment of their property.

• Definition: Occurs when actions of one party unreasonably interfere with the basic rights of another property owner.

• Key Requirement: The actions must cause harm to others.

• Elements of Nuisance:

  • Unreasonable Interference: The impact on the plaintiff's property use must be beyond what a reasonable person would tolerate in the given circumstances.

  • Substantial Harm: The interference must cause a significant detriment to the plaintiff's use and enjoyment of their property.

• Scope: Can be extended to the general public, forming a "public nuisance" (e.g., widespread pollution affecting a community).

• Important Doctrine: You generally cannot "move to the nuisance." This means if you purchase property next to an existing activity that causes a nuisance, your claim for nuisance might be weaker.

Nuisance Examples & Case Law

• Albert v. Meadowbrook Swimming Club ($1938$): This case likely explored what constitutes a nuisance, often discussed in relation to noise or activity impacts on neighboring properties. (Further details require instructional videos).

• What Constitutes a Nuisance?

  • The question is one of degree and context: Is it my neighbor's dogs (unlikely to be a nuisance), $20$ dogs (more likely), or an elephant next door (definitely a nuisance)?

  • A nuisance is often described as "something that is out of place" – like "a pig in a parlor."

  • A neighbor's loud muffler is generally not considered a nuisance if it's not uncommon and doesn't cause undue inconvenience, as the standard is typically based on reasonable tolerance.

• Slaired v. Kewers ($1970$):

  • Court's Ruling: Something won't be deemed a nuisance if the interference with one's property use is primarily a function of the plaintiff's own undue sensitivity, rather than the defendant's conduct being objectively unreasonable.

  • Implication: This case sets a standard that ordinary, reasonable sensitivities are protected, but extreme sensitivities are not typically grounds for a nuisance claim.

• Environmental Nuisance Example: Organic Farmer and Pesticide Spraying

  • Would involve substantial harm to the organic farmer's use and enjoyment of their property (e.g., contamination, loss of organic certification).

  • The interference is unreasonable, given background norms (pesticide drift onto an organic farm is like a "pig in a parlor" scenario in that context).

  • Crucially, this is NOT a function of the farmer's undue sensitivity (being an organic farmer is a legitimate land use practice, not an unusual sensitivity).

Trespass

• Relationship to Nuisance: Sometimes difficult to distinguish from nuisance, but focuses on different types of harm.

• Definition: Harm resulting from a wrongful, physical entry onto someone else's property.

• Scope: Does not necessarily need to be entry by a person.

  • Examples: Physical invasion by substances such as smoke, ash, vapor, or toxic chemicals can constitute trespass.

• Key Distinction (Possession vs. Use & Enjoyment): Trespass typically interferes with a property owner's possession of their land, whereas nuisance interferes with the use & enjoyment of the land.

Negligence

• Core Concept: At the heart of "Tort" Law (civil wrongs).

• Definition: Behavior that unfairly causes harm to another.

  • This allows the injured party to recover for damages resulting from such conduct.

• Nature: Can be an act (something done carelessly) or a failure to act (an omission when there was a duty to act).

• Standard: Based on a "Reasonable Conduct Standard" – what a reasonably prudent person would do in similar circumstances.

• Elements of Negligence: To prove negligence, all four elements must be established:

  • Duty of Care: The defendant owed a legal duty to the plaintiff to act reasonably.

  • Breach of Duty: The defendant failed to exercise that duty of care (i.e., acted unreasonably).

  • Harm: The plaintiff suffered actual damages or injury.

  • Proximate Cause: There must be a direct and foreseeable connection between the defendant's breach of duty and the harm suffered by the plaintiff.

Case Study: Kathleen James, et al. v. CIBA-GEIGY CORP., et al.

• Background:

  • The lawsuit stemmed from decades of Ciba's improper disposal of toxic chemical wastes at its Toms River plant.

  • This contamination led to groundwater pollution.

  • The EPA declared the site a Superfund site in $1983$ and ordered cleanup actions in $1989$ and $2000$.

  • Plaintiffs living nearby filed a class-action suit, seeking damages for property value loss shortly after the $2000$ EPA order.

Application to Common Law Concepts:

1. Nuisance

   • Plaintiff's Argument: Argued that pollution from Ciba’s toxic waste drums caused ongoing contamination, interfering with their property rights. They contended that even with some waste stored safely, the ongoing presence constituted a nuisance under the Continuing Tort Doctrine until removal.

   • Court's Actual Take: The court determined that the factual dispute—whether contamination still leaches from the site—needed to be decided by a trial judge. If contamination ceased years ago, nuisance claims might be limited to the original period of pollution.

   • Continuing Tort Doctrine: This legal principle applies when a wrongful act or condition causes harm over an extended period, rather than from a single, isolated event. A new cause of action accrues each day the harm continues, which impacts when the statute of limitations (legal deadline to sue) begins to run.

2. Trespass

   • Plaintiff's Argument: Claimed that the toxic waste had physically entered their land, constituting a trespass.

   • Court's Actual Take: Once the EPA ordered remediation and cleanup efforts began, the court held that equitable relief was no longer available. It reasoned that, under the continuing tort doctrine, liability for nuisance or trespass arises from the failure to remove the harmful condition, not merely its existence. Thus, once remediation is underway, the breach ceases.

3. Negligence

   • Plaintiff's Argument: Argued that Ciba was negligent in handling and remediating the pollution, causing harm over time.

   • Big Question: Are negligence charges subject to the Continuing Tort Doctrine? Can an entity be considered "continually" negligent?

   • Court's Actual Take: The judge denied the motion concerning the negligence cause of action, specifically finding that the continuing tort doctrine does not apply to negligence. The court reasoned that Ciba was not continuing to be negligent once remediation efforts had already begun.

Discussion Points from the Case:

• How does the Continuing Tort Doctrine impact the ability to sue for environmental harms like pollution?

• Do the plaintiff’s claims of nuisance, trespass, and negligence appear sound given the legal interpretations?

Upcoming Activities & Exam

• Monday: Tragedy of the Commons Activity & Group Discussion.

• Review: Unit $1-3$ Study Guide; bring questions.

• Reminder: Exam $1$ is on Wednesday, September $24$th.

  • Format: In-class, the entire period will be allotted.

  • Content: Mix of multiple choice, matching, true/false, fill in the blank, and short answer questions.

  • Requirement: Bring a computer for the exam.