Environmental Law II Lecture Notes PDF

Environmental Law II Instructor: Dennis Klick Class 3 Topics to be covered ü Legal Terminology Review ü Common Law Approaches to Environmental Problems ü Nuisance Law in Canada Legal Terminology Legislative Act Formal written law that has been officially enacted or passed by a legislative body Legis...

Environmental Law II Instructor: Dennis Klick Class 3 Topics to be covered ü Legal Terminology Review ü Common Law Approaches to Environmental Problems ü Nuisance Law in Canada Legal Terminology Legislative Act Formal written law that has been officially enacted or passed by a legislative body Legislation Type of secondary law created by an executive authority under the delegated authority granted by a primary legislative act Refer to rules and standards issued by administrative agencies to implement, interpret, or enforce the broader provisions of a primary legislative act Regulation More specific and detailed than legislation – provides guidelines on how the law's broad principles should be applied in specific situations. Used to address technical details, procedures, and standards Legal Terminology Plaintiff o The party that initiates a legal action by filing a complaint or a petition in a court of law o The term commonly used in civil cases, where one party seeks legal redress or remedy against another o The plaintiff is the party claiming to have suffered harm or injury as a result of the actions or omissions of the defendant Defendant o An individual, company, or entity that is accused or charged with committing a legal offense in a court of law o The term commonly used in criminal proceedings, but it can also apply in civil cases o The defendant is the party against whom a legal action is brought, and they are required to respond to the allegations made by the plaintiff or the prosecution Common Law Common law refers to a legal system where law is developed & articulated through judicial decisions and precedents, as opposed to legislative statutes In the context of environmental problems, common law plays a crucial role in shaping how legal issues are addressed Common law approaches to environmental problems often involve the interpretation application of existing legal principles to the specific circumstances of environmental disputes Environmental cases often involve interpreting and applying prior court decisions to the specific facts of a new case, creating a body of law that evolves over time A common law approaches to environmental problems includes “Nuisance Law” Albert v. Meadowbrook Swimming Club (1938) Who is the plaintiff (P)? Who is the defendant (D) What is P complaining about? How does the court rule? So what is a nuisance? My neighbors dog? So what is a nuisance? Do you think that more dogs would constitute a nuisance? How about an elephant next door? Scott’s car and its loud muffler? Nuisance Law Nuisance Law: The word “nuisance” is synonymous with the word “annoyance” Nuisance refers to the unreasonable & substantial interference with another individual's use and enjoyment of their property Environmental Nuisances are generally in the form of things like noises, odors, smoke or other kinds of pollution, where a suit for trespass to land cannot be brought Common law nuisance actions allow affected parties to seek remedies or damages Nuisance concepts in Canada In Canada, both private and public nuisance concepts are integral components of environmental law Provides legal avenues for individuals or entities to address and remedy environmental harms These concepts are rooted in common law & have been applied to various environmental issues In order for a nuisance suit to be viable, the plaintiff must show that defendant’s act was either intentional or negligent When it comes to resolving nuisance disputes, courts use a balancing test to determine whether the defendant's use of their property is reasonable. The court will consider factors such as the nature of the use, the extent of the interference, and the harm caused. Example: If a factory is emitting smoke that is causing harm to nearby residents the court will weigh the benefits of the factory's operation against the harm caused to the residents. Private Nuisance Private nuisance occurs when an individual or entity unreasonably interferes with another person's use and enjoyment of their land Private nuisance frequently invoked in cases of pollution or environmental contamination that adversely affect neighboring properties Example: If a factory releases pollutants that cause damage to a neighboring property owner, that owner may bring a private nuisance claim Private Nuisance The affected party must demonstrate that the interference is substantial and unreasonable Courts may consider factors such as the nature of the interference, the sensitivity of the affected property, and the economic and social utility of the alleged nuisance. Remedies for a successful private nuisance claim may include damages (compensation for harm suffered) or injunctive relief (an order to stop the offending activity). Elements of Private Nuisance Substantial Interference The term “substantial” is defined as something a reasonable person would not tolerate. Determining the reasonability of defendant’s actions will also come down to weighing the harm caused by those actions against the benefits those actions bring. There are four factors used in determining “Substantial”: 1. 2. 3. 4. Whether or nor the defendant’s action is properly suited to the neighborhood where it takes place The values of both the plaintiffs and the defendant’s properties The cost that the defendant would have to incur to eliminate the nuisance The benefits of allowing the nuisance to continue Some courts will look at whether or not the nuisance existed before or after the plaintiff moved into his property Private Nuisance Example Case Study Coach builds a tannery in Paul’s neighborhood. The tannery gives off foul odors that Paul can smell from his property. Paul might have a viable action for nuisance against Coach. Paul has possessory interest in his land, the odor from the tannery is affecting the use and enjoyment of his property and, it is fair to say, the odors are a substantial and unreasonable interference with Paul’s enjoyment. (source: BC Law Society, 2001) Public Nuisance Public nuisance arises when there is an unreasonable interference with a right that the public shares, or when an act threatens the public health, safety, or welfare Public nuisance is often relevant in cases where environmental harms impact the broader community. Example: A company's discharge of pollutants into a waterway affecting multiple downstream users could be considered a public nuisance Public Nuisance In public nuisance cases, the focus is on harm to the public at large rather than harm to specific individuals. The plaintiff may be a public authority or a private individual acting in the public interest. Remedies for public nuisance may include injunctive relief, abatement orders, or civil penalties. Courts aim to prevent or stop the offending activity to protect the public interest Good to Know Information… Abatement orders are commonly used in environmental and public health contexts to address nuisances, pollution, or other conditions that may pose risks to the environment or public health. Legal directive issued by an authorized government agency or regulatory body to require the correction, cessation, or mitigation of a specific activity Public Nuisance Case Study Example An oil tanker belonging to Shell Oil Co. runs aground and causes a massive oil spill that damages several miles of the Massachusetts coastline. As a result, several public beaches are rendered unusable to the public. Pete makes his living giving wind surfing lessons at one of the beaches and his business has been destroyed as a result of the oil spill. While the closure of the beaches represents a public nuisance that only the state of Massachusetts can sue for, Pete may have a cause of action against Shell because he has suffered a particular kind of injury as a result of the public nuisance. Thus, although individual people usually cannot sue for a public nuisance, in this case Pete may have a viable cause of action (source: BC Law Society, 2001) Nuisance Law & Environmental Legislation In Canada, federal and provincial environmental regulations play a significant role in addressing and managing environmental issues. Nuisance law, on the other hand, is a common law concept that provides a legal remedy for individuals or entities adversely affected by environmental harms. The relationship between environmental regulations and nuisance law in Canada involves a dynamic interplay, with each influencing the other in various ways Complementary Aspects: Regulatory Frameworks: Federal and provincial environmental regulations establish comprehensive frameworks for managing pollution, emissions, waste disposal that may cause harm to the environment. These frameworks often set standards, permit requirements, and enforcement mechanisms. Permitting Process: The permitting process under environmental regulations involves assessing the potential environmental impacts of proposed activities. This process can help identify and mitigate potential nuisances before they occur, aligning with the preventative goals of both regulatory frameworks and nuisance law. Intersection Legal Aspects 1. Legal Standards: Environmental regulations often set legal standards for permissible levels of pollution and emissions Violations of these standards may give rise to regulatory enforcement actions Simultaneously, the same violations may form the basis for a private nuisance claim under common law 2. Enforcement Mechanisms: Both regulatory agencies & private citizens can enforce environmental regulations. Regulatory authorities can take enforcement actions against non-compliant parties Private citizens can use nuisance law to seek remedies for harms caused by environmental issues 3. Evidence in Nuisance Claims: Violations of environmental regulations can serve as evidence in nuisance claims Example: A plaintiff in a nuisance case may argue that a defendant's failure to comply with environmental standards is indicative of negligent or unreasonable behavior leading to the alleged nuisance Potential Tensions 1. Regulatory Compliance vs. Nuisance Claims: – *Compliance with environmental regulations does not necessarily shield a party from private nuisance claims – Regulatory compliance is a relevant factor - private citizens can still pursue legal remedies for damages or injunctive relief based on common law principles 2. Individual Rights vs. Public Interest: – Nuisance law often focuses on protecting individual property rights, while environmental regulations may be driven by broader public interest considerations. – Balancing these interests can lead to complex legal considerations, especially when private citizens seek remedies for environmental nuisances. Case-by-Case Court cases rely on common law principles and are “case-by-case” assessments on the following principles: 1. Factual Specifics: The application of both environmental regulations and nuisance law depends on the specific facts of each case Courts consider the circumstances, evidence, and legal principles applicable to determine liability and appropriate remedies 2. Jurisdictional Variances: Environmental regulations can vary between jurisdictions (federal and provincial), and so can common law principles The interplay between the two may vary based on the specific regulatory framework and legal traditions of a given jurisdiction Slaird v Klewers (1970) Who is the Plaintiff? Who is the defendant ? What is Plaintiff complaining about? What happened in the trail court? The court doesn't order and injunction or order even the payment of damages. Two things a court can do, when it finds there to be a nuisance: Order an injunction, or Order the payment of damages Note: Injunction is a court order requiring a person to do or cease doing a specific action Nuisance & Environmental Law Organic farmer and pesticide spraying? Elements of the Tort For Nuisance, there has to be Substantial interference with Plaintiffs peace and enjoyment of property The interference is unreasonable given background norms; not a function of Plaintiffs undue sensitivity Nuisance law Applying nuisance law to environmental dispute Cooper mining & air pollution Madison v. Ducktown Sulphur (Tenn. 1904) Madison v. Ducktown Sulphur (Tenn. 1904) Does the court find there to be a nuisance? What remedy do the P’s want? Does the court grant an injunction? Madison v. Ducktown Sulphur (Tenn. 1904) Mining company changed the landscape Given what the company did, is this nuisance? Money Damages Getting the price right – Who / what else is injured? – Harm caused for future generations Externalities There are effects felt beyond the boundaries of the company or the entity causing the problem. The damage is felt on property belonging to someone else - forcing defendants to pay for these damages felt by others. Internalizing the externality The idea is, if they cause more harm than it's worth, they'll have to either stop business or have an extra incentive to find a less harmful way to do things. So that even after they pay off all the harm, it's still worthwhile for them to continue Self Assessment Self-Assessment #1 Must a court, when it finds there to be a nuisance, always issue an injunction? a) Yes b) No Self-Assessment #1 Must a court, when it finds there to be a nuisance, always issue an injunction? a) Yes b) No Self-Assessment #2 In a residential neighborhood, James uses his backyard for his firewood business. During daylight hours on most days, James operates a loud chainsaw that cuts trees into sections which he then splits into pieces with a mechanical log splitter. He installs bright lights so he can work into the evening hours. Donald, who lives next door, is affected by the noise of James’ log splitting operation. Even with the windows closed, Donald cannot hear his television set or hear people on the telephone. If Donald sued James for nuisance: a) Donald will most likely lose because James has the right to do as he likes with his own property. b) Donald will most likely win, but receive only an award of damages, not an injunction against James, because courts never enjoin businesses for nuisance. c) Donald will most likely win. Self-Assessment #2 In a residential neighborhood, James uses his backyard for his firewood business. During daylight hours on most days, James operates a loud chainsaw that cuts trees into sections which he then splits into pieces with a mechanical log splitter. He installs bright lights so he can work into the evening hours. Donald, who lives next door, is affected by the noise of James’ log splitting operation. Even with the windows closed, Donald cannot hear his television set or hear people on the telephone. If Donald sued James for nuisance: a) Donald will most likely lose because James has the right to do as he likes with his own property. b) Donald will most likely win, but receive only an award of damages, not an injunction against James, because courts never enjoin businesses for nuisance. c) Donald will most likely win. Self-Assessment #3 In a suburban neighborhood, which of the following is least likely to be seen as a common-law nuisance? a) playing an extremely loud electric guitar in the backyard every night until 2 a.m. b) keeping an elephant in one’s backyard. a) keeping a dog in the backyard that occasionally barks at night. Self-Assessment #3 In a suburban neighborhood, which of the following is least likely to be seen as a common-law nuisance? a) playing an extremely loud electric guitar in the backyard every night until 2 a.m. b) keeping an elephant in one’s backyard. a) keeping a dog in the backyard that occasionally barks at night. Self Assessment #4 When economists refer to environmental protection as a “public good,” they mean: a) The environment has value for everyone, and therefore tends not to be something willingly paid for by any single individual. b) The public thinks that the environment is “good.” Self Assessment #4 When economists refer to environmental protection as a “public good,” they mean: a) The environment has value for everyone, and therefore tends not to be something willingly paid for by any single individual. b) The public thinks that the environment is “good.”