Environmental law

Today’s class
• Learning styles typology
• Hardin’s Tragedy of the Commons
• why is it so hard to make environmental
laws that work right the first time?
• Implementing laws
What is the tragedy of the commons?
• List a range of possible solutions.
• Identify problems or limitations for each
Implementing environmental
Why environmental laws go awry:
A framework of policy
What is implementation?
• Making the law or program work
• neither straightforward or guaranteed
• depends upon a number of factors
• Identify how many ways you could get
from campus to downtown Green Bay
• How about from here to Madison? To
Washington D.C?
• Implementation challenges expand as
policies become more complex
implementation framework
• Extrinsic and intrinsic variables
Questions for discussion
Why is implementation difficult?
Why does each law tell a different story?
What is the role of states in implementing
environmental laws?
What factors of the implementation
framework seem most important? Why?
Federal-state working
• affect implementation
• may be both positive or negative
• can be described as a function of mutual
trust and involvement
Environmental federalism
• state environmental laws were preempted
by national law
• “partial preemption”: states may assume
primacy, but federal agency can reassume
programmatic responsibility
• Carrot: federal funding
• Stick: federal oversight
• using the working relationship typology,
decide which quadrant represents the best
fit in the organization where you work or
know about
• Do you agree that trust and involvement
are central to effective working
relationships? Why or why not?
Old relationship paradigm
• relying on agency outputs, closer
oversight, in a partial-preemption federalstate arrangement
1990s: Context for a new
• Growing concern about unfunded or
underfunded mandates
• Increasing capacity of state agencies
• National Performance Review and
“reinventing government”
• Govt. Performance and Results Act
New paradigm (1995--)
• National Environmental Performance
Partnership System
– new flexibility for states (PPA)
– more control over funding (PPG)
– focus on OUTCOMES (Core performance
Working relationship model
Are working relationships “never better” or
are they never better?
NEPPS is difficult to put into practice,
illustration of complexity of environmental
law and implementation
Common law and the environment
– exposure to environmental conditions that
may harm persons or property
• “toxic torts”: persons who suffered harm as a
result of exposure to toxic substance
– substances that by inhalation, ingestion, dermal
exposure cause physical injury or disease
• three types of torts used for environmental injuries
– nuisance, trespass, negligence
What can the court do?
– compensatory damages: $ to compensate for actual
– general damages: $ for injuries for which an exact
amount is not known (pain and suffering)
– punitive damages: $ designed to punish reprehensible
– injunction: court prohibits conduct (interlocutory or
– may use one or more remedies
Private Nuisance
– use of property that interferes with your
neighbor’s use and enjoyment of her
– defenses include
• failure to demonstrate causation
• failure to demonstrate injury
• balancing of the equities:
– coming to the nuisance
Public nuisance
– unreasonable interference with a right
common to the general public
– significant interference with the public health,
safety or comfort
– defenses include
• failure to show causation
• failure to demonstrate harm
• balancing of the equities
• interference with the possession of property
(chattels or land)
– must prove: invasion; ownership; disturbance
in the property
– need not demonstrate physical harm
– need not prove wrongful motive
– need not be a person
• failing to do something that a reasonable
person, guided by ordinary considerations,
would do
– defendant under a duty to conform to a standard of
– defendant breached that duty
– “proximate cause” : injury would not have occurred
but for that action
– plaintiff suffered loss
Negligence per se
• violation of an environmental law, which is the
proximate cause of the injury, may be seen as
negligence “per se” and therefore render the
defendant liable in a civil action
Strict liability
– assessment of liability for damages without a
showing of negligence
– person engaged in ultrahazardous activity is
liable for any harm that results, regardless of
the care exercised to prevent that harm
• Sue Jones stores gasoline in a 55 gallon drum in her
yard. A prankster throws a lit match into the drum. The
explosion damages the neighbor’s garage. Cause(s) of
action? Does Sue have any defense?
Michael Jackson comes into your yard and starts singing.
What can you do?
Paula Jones, after winning a big lawsuit, buys a condo
near the airport. She brings a nuisance action, arguing
that the airplanes make too much noise. What are her
Tuesday: three cases
Come prepared to answer the questions in the
Why not rely on common law?
• identify some major shortcomings of
common law