Environmental Law- Guruswamy- 2006- Anonymous- Grade A

Environmental Law- Guruswamy- 2006- Anonymous- Grade A -...

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Overview – Environmental Law Timeline o E law is a product of the CLAW o State and local governments looked to curtail pollution o Federal legislation encouraged development of natural resources o Little federal environmental legislation Congress dealt with large public health concerns Federal Assistance Period (1960s) o Encouraged control – sewage treatment plants, things local governments didn’t deal with o Interstate character of pollution became more obvious Modern Environmental Movement o 1970s We see a ton of legislation from the federal government Opened up agency action to court enforcement/judicial review Federal Regulatory Structure put in place o NEPA Info gathering proved useful Agencies required to do EISs for all major agency action o CAA/CWA Point sources: Industrial plants/waste management facilities Extension of the regulatory structure (1980-1990) Regulatory Recoil and Reinvention (1991 – Present) o Congress and Judiciary became more skeptical about environmental regulation. What Era are we in NOW? o We have a new court o Cope of Commerce Clause: Lopez & Morrison impose limits on federal power Lopez – regulating guns in school zones Test: 3 classes of activities that can be regulated: o Use of channels o Activities that have “substantial effect” on interstate commerce Morrison – Congress cannot regulate activity which is not economic in nature. Violence against women act allowed for private cause of action. Struck down despite record of economic effects of violence against women. Note : federal regulation of commercial activity is generally allowed SWANCC – signals the need for caution in assuming the federal environmental regulation (jurisdiction) will always satisfy commerce clause requirements. 1
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CLAW Roots o General Problem: The damage is already done. Nuisance is reactive, not proactive. Plus, you have to have the $ to bring the case. o Private Nuisance Requirements: 2. Intentional and unreasonable harm OR o 3. Causation Balancing Approach : Weigh the benefits of injunction against the economic benefits of the activity. Rule: If the polluting party’s interests are more valuable than the Πs’ interests, then damages should be awarded over the injunction. ( Madison v. Ducktown Sulphur (Tenn Sup. Ct. 1904)) o Facts: Neighbors argued that copper smelter was a private nuisance. Ct refused to issue injunction, based on economic value of Δ. RSTMT § 826B (takes balancing approach): An intentional invasion of another’s interest
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This note was uploaded on 02/12/2008 for the course LAW 7202 taught by Professor Guruswamy during the Fall '06 term at Colorado.

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Environmental Law- Guruswamy- 2006- Anonymous- Grade A -...

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