“…causes which concern the life, or inheritance, or goods, or fortunes of his Subject; they are not to be decided by naturall reason but by the artificiall reason and judgment of Law” “It appears in our books that in many cases the common law will control acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.” 10/31/11 ESPP-78 1
Transcript
“…causes which concern the life, or inheritance, or goods, or fortunes of his Subject; they are not to be decided by naturall reason but by the artificiall reason and judgment of Law”
“It appears in our books that in many cases the common law will control acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.”
10/31/11 ESPP-78 1
1610: William Aldred’s case A person may not “maintain a structure upon
his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants.”
2007: Environmental Defense v. Duke Energy The Clean Air Act’s Prevention of Significant
Deterioration (PSD) program can interpret what counts as a plant “modification” differently from earlier definition for new source review; this means that plants increasing pollution through longer hours of operation need permits.
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Who is entitled to sue? Cases and controversies (Constitution, Article III) Standing requirement (injury, causation,
redressability) Citizen suits (authorized by law, disfavored by
Supreme Court) What (environmental) values are protected?
Interpretations of “injury” Land subordinated to human labor and
consumption Property interests favored
Which (discretionary) judgments are entitled to deference? How much?
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Not always “progressive” (pro-environment, pro-public interest)
Corporate legal strategies Challenges to rules and standards Challenges to information ▪ E.g., “Six Cities,” PM 2.5 , American
Trucking, Data Quality Act Failures of compliance (TSCA)
Assertion of property rights Constitutional mandate against
“takings”10/31/11 ESPP-78 4
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• US Constitution, 5th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Dolan v. Tigard (1994: mandated land-use)▪ Target: urban environmental planning, conditions on
Tahoe-Sierra Preservation Council (2002: delayed development)▪ Target: declaration of temporary moratorium on
development for land-use planning purposes▪ Rationality of planning decisions requires moratoria, for
more informed decisionmaking
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Physical occupation for public use E.g., highway or railroad construction
Regulatory takings Impose conditions that deprive property
of all reasonable value of land E.g., declare wetland, demand
conservation for endangered speciesUnconstitutional conditions
Conditions unrelated to the purpose being furthered
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Dolan v. Tigard Nexus between legitimate public purpose
and conditions satisfied “Rough proportionality” needed between
conditions imposed and impact of development
Tahoe-Sierra Preservation Council Moratorium on development is not a per se
taking “Moratoria are an essential tool of
successful development.” Blanket time limit for planning would lead
to worse, more hurried decisions.10/31/11 ESPP-78 9
Change the politics: appointments Reversing the 5-4 split
Change the law: doctrinal or strategic innovation Massachusetts v. EPA
Change the influence of SCOTUS and courts: bypassing the law Partnerships between NGOs and private
sector, including businesses and landowners
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The center (1) designs and implements model projects
that demonstrate how incentive-based strategies can benefit natural resources and biodiversity and foster private lands stewardship;
(2) works to improve federal and state conservation incentive policies to make them more effective both in protecting ecosystems and in rewarding landowners who do so;
(3) undertakes research and analyses to help shape both conservation incentive policies and the allocation of incentive funds; and
(4) works to build broad public awareness and support for private land conservation and incentive programs.
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Wholly market-based thinking Can environmental stewardship be combined with
profits based on extraction and development? Is that sort of stewardship adequate for
sustainability? Alternatives?
Private charity (e.g., ex-Patagonia CEO Kristine Tompkins helps create Chile’s Patagonia National Park)
