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1 Approaches to Environmental Protection

2 Reserve Mining Co. v.

EPA

514 F.2d 492 (8th Cir. 1975)

3 Mining byproducts containing Asbestos

discharged into Lake Superior

4 Dist.Ct. ordered immediate halt to discharges

would have required facility to close

5 Issues: whether ingestion,

as opposed to inhalation

posed health hazard

6 whether hazard sufficient to justify permanent injunction

7 Lack of scientific evidence re risk

8 court concluded asbestos fibers "creates some health risk“

unable to conclude harm more likely than not

i.e., substantial evidence

9 Whether showing of harm sufficient

to satisfy Clean Water Act

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10 fed. govt authorized to abate discharges in interstate waters

which endanger the health & welfare of persons

11 Appeals Court found evidence satisfied Clean Water Act

danger to public health requirement satisfied

12 Appeals Court held plant closing unnecessary,

balancing equities

13 Reserve willing to spend $243 million for safer disposal

14 cost of harm to public & industry

15 Reserve given reasonable time

to stop discharging wastes into Lake Superior

16 In assessing probabilities of harm

it cannot be said that the probability of harm is more likely than not

17 level of probability does not readily convert

into prediction of consequences

18 Here, can not forecast drinking Lake water will result in cancer increase

19 Best can be said, asbestos contaminant in air & water

gives rise to reasonable medical concern for the public health

20 ergo, public exposure creates SOME health risk

contaminant should be removed

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21 FWPCA sec. 1160 "endangering"

22 Congress used term in a precautionary or preventive sense

23 ergo, evidence of potential harm as well as actual harm

within purview of statute.

24 Congress has generally geared national environmental policy

to allowing polluting industries reasonable time

to make efforts to conform to federal standards

25 Dist.Ct. abused its discretion by immediately closing plant

public risk potential,

but not imminent or certain

26 Reserve earnestly seeking practical abatement of pollution

27 Remedy should be fashioned which will serve ultimate public weal

by insuring clean air, clean water,

and continued jobs in industry vital to nation's welfare

28 Industrial Union Dept. AFL-CIO v.

American Petroleum Institute

448 U.S. 607 (1980)

29 OSHA regulation of benzene,

known carcinogen

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no known safe level of exposure

30 Occupational Safety and Health Act

more vague than Clean Water Act or Clean Air Act

provide safe, healthy place of employment

31 Secretary of Labor set permissible worker exposure

1 part per million (1 ppm)

considered lowest feasible level

32 OSHA estimate of compliance cost

$226 million capital investment

$200 million start-up cost first year

$34 million in annual costs

33 OSHA estimate 35,000 workers

would benefit from regulation

34 Industry: OSHA "reasonably necessary or appropriate“ for healthful employment

required cost-benefit analysis

35 Secy: required to impose standards to guarantee

workplaces free from any risk of material health impairment,

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however small as close as possible, without ruining entire industry

36 Appeals Court (5th Cir.) struck down reg.

OSHA statute implicitly required cost-benefit analysis by agency

37 Supreme Court 5 -4 (divided opinions)

only 1 member (Powell) adopted Cost-Benefit view of Circuit Court

38 Plurality on Court: section 3(8) of OSHA Act limited sec. 6(b)

OSHA required to make threshold finding of "significant risk of harm“

before issuing any regulation

39 Secy required to make threshold finding employment place unsafe

i.e., risks present & can be eliminated for lessened by changed

practices

40 Secy promulgate regs for TOXIC chemicals & HARMFUL physical agents

in workplace

NOT chemical & physical agents generally

41 Secy's view would give OSHA power to impose enormous costs

that might produce little, if any, discernible benefit

42 Sweeping delegation of legislative power to Secy might be Unconstitutional

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would give Secy unprecedented power over industry

43 Issue: define & allocate burden of proving significance of risk

where scientific knowledge imperfect & precise

quantification impossible

44 OSHA: substantial evidence on record

no absolutely safe level for carcinogen

45 OSHA: Industry burden to show beyond shadow of a doubt

there is a safe level for benzene exposure

46 Court: disagreed with OSHA,

burden on Agency,

basis of substantial evidence

47 More likely than not,

long term exposure to 10 ppm

presents significant risk of material health impairment

48 OSHA did not even attempt to carry burden of proof

found benefits lowering emissions from 10 ppm to 1 ppm "appreciable"

49 Industry est. reg would save 2 lives every 6 years

50 Court majority: 1 in 1 billion insignificant risk

1 in 1 thousand risk "might well" be considered significant

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51 No duty for Agency to calculate exact probability of harm

does have obligation to find significant risk present

before characterizing workplace as "unsafe"

52 Agency judgment involving policy considerations

What constitutes significant risk

53 Agency findings need NOT be supported

by anything approaching scientific certainty

54 When findings are made on the frontiers of scientific knowledge

Agency to be given some leeway

55 Agency free to use conservative assumptions

in interpreting data re carcinogens

56 Agency may risk erring on side of over protection rather than under protection

as long as supported by body of reputable scientific thought

57 Secy must retrace steps with greater care & consideration

58 Within scope of legitimate agency discretion

Secy make policy judgment

whether specific risk of health impairment is significant

in terms of policy objectives of statute

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59 Judicial function does NOT extend to substantive revision of regulatory policy

60 regulation must NOT strangle human activity

in search of the impossible, perfect safety

61 American Textile Manufacturers Institute, Inc.v.

Donovan

U.S. Supreme Court, 1981

62 OSHA standard regulating cotton dust

cause of byssinosis, "brown lung" disease

63 Amended OSHA Cancer Policy

consideration be given to significance of risk

in issuance of carcinogen standard

64 OSHA to consider all relevant evidence in making determination

65 Amended prior presumption NO safe exposure level for carcinogens

deleted automatic setting of lowest feasible level

without regard to risk significance

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66 Issue: whether Agency required to engage in COST-BENEFIT ANALYSIS

when issuing cotton dust regulation

67 Court: Feasibility analysis is all that is necessary

show performance is possible

but not analysis comparing cost of compliance

with benefits of regulation

68 OSHA expressly found "exposure to cotton dust

presents a significant hazard to employees"

25% suffered low level disease

69 OSHA: disease significantly reduced under reg.

12.5% would still have low level disease under reg.

70 Cost-benefit analysisas overriding requirement of OSHA 6(b) regs

re Toxic materials

no material impairment of health

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would eviscerate "to the extent feasible" requirement

71 Standards would inevitably be set at the level indicated by cost-benefit analysis

not at "no material impairment of health" standard specified by 6(b)

72 USING THE TORT SYSTEM TO ADDRESS

ENVIRONMENTAL ISSUES

73 State v.

VentronCorp.

Supreme Court

of

New Jersey, 1983

468 A2d. 150

74 Responsibility of various corporations

for cost of cleanup

75 removal of mercury pollution seeping from 40 acre tract into creek

tidal estuary of Hackensack River flowing through Meadowlands

76 Site saturated by 268 tons of toxic waste, primarily mercury

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77 mercury concentration in Berry Creek for several thousand feet highest in world

78 methyl mercury release continues due to interaction with other elements

79 Due to oxygen depletion

fish no longer inhabit creek

80 irreversibly toxified when swept into creek by tide

81 contamination resulted from mercury processing at site for almost 50 yrs.

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Trial Court; Berk & Wood jointly liable

for cleanup & removal of mercury

83 Velsicol & Ventron severally liable

for half of costs

84 Wood who purchased property from Ventron

not liable

85 Appeals Court affirmed and modifiedimposed joint & several liability for all costs on Ventron & Velsicol

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86 '29-'60 Berk leased then owned tract,

operated mercury processing plant

87 dumped untreated waste and allowed mercury laden effluent runoff

88 '60 sold assets to Wood Ridge,

ceased corporate existence

89 '60 Velsicol formed Wood Ridge

as wholly owned subsidiary

90 for sole purpose of purchasing & operating Berks mercury processing

91 '67 Wood subdivided tract, 33 acre dividend to Velsicol

92 Vesicol continued to permit Wood to dump on 33 acres

93 Wood continued to operate on remaining 7.1 acres '60-'68

94 Court: Velsicol operated Wood as division,

not independent subsidiary

95 Velsicol officers involved in day to day operation of plant

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96 '68 Velsicol sold Wood Ridge to Ventron

Ventronbegan to consider a course of treatment for plant wastes

97 mid '60s DEP began testing effluent on tract

but did not take any action against Wood Ridge

98 Court: Wood not liable under intentional tort or negligence theories

99 '70 Creek contamination came to attention of EPA,

tested Wood Ridge waste water

found 2 lbs of mercury per day into creek

100 Wood later installed system which abated but did not halt

101 '74 Wood Ridge merged into Ventron, plant operations continued

102 merger documents provided Ventron

would assume liabilities and obligations of Wood Ridge

103 Ventron terminated plant operations

sold movable operating assets

104 5/74 Ventron conveyed 7.1 acre tract

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to Wolfs

commercial real estate developer

105 Planned to demolish plant & construct warehousing facility

in demolition mercury-contaminated water used to wet down structures

and run into creek

106 DEP ordered halt to demolition,

pending adequate removal or containment of contamination

107 DEP proposed containment plan

Wolfs implemented another plan, & proceeded with project

108 DEP brought suitLower courts: imposed strict liability on Wood Ridge

under common law principles for causing a public nuisance

and for "unleashing a dangerous substance during non-natural use of

land."

109 Rylands v. Fletcher (1866) "Strict Liability"

1866 N.J. Supreme Court

Marshall v, Welwood

rejected Rylands v. Fletcher

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110 OVERRULEDLandowner Liability for Abnormally Dangerous

Restatement (Second) Torts sec. 520 comments (d) & (e)

111 landowner is strictly liable to others for harm caused by toxic wastes

that are stored on his property and flow onto the property of others

112 Those who use, or permit others to use, land for the conduct of abnormally dangerous activities

are strictly liable for resultant damages

113 Common Law Nuisance, Trespass to Land - unauthorized intrusion into land

continuing nature of interference was essence of harm

fault largely irrelevant

114 Rylands v. Fletcher: person who for own purposes brings on his land

and collects & keeps there anything likely to do mischief

if it escapes

must keep it at his peril

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115 answerable for all damages for natural consequences of escape

strict liability limited to "non-natural" uses of land

e.g., no strict liability for natural accumulation of water on land

116 Restatement (Second) of Torts Sec. 520

substituted "abnormally dangerous" for "ultrahazardous"

117 Sec. 520 "Abnormally Dangerous" case by case factors

high degree of risk of some harm to person, land, or chattels

likelihood resulting harm will be great

inability to eliminate risk by reasonable care

118 extent to which activity not matter of common usage

inappropriateness of activity in place where carrried on

extent to which value to community outweighed by dangerous

attributes

119 Sup.Ct.: approve trial court's finding Berk, Wood Ridge, Vesicol, & Ventron

liable under common law principles

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for abatement of resulting nuisance & damage

120 Wolfs did not pollute environmentdid not dump mercury

only liable for minimal aggravation of underlying hazardous condition

121 Affirm Trial court finding

Wolf not liable for cleanup costs

122 AYERS v.

TOWNSHIP OF JACKSON

Supreme Court of New Jersey

106 N.J. 557; 525 A.2d 287 (1987)

123 New Jersey Tort Claims Act

residents of Jackson Township against that municipality.

claims for damages sustained because plaintiffs' well water was

contaminated by toxic pollutants

124 from a landfill established and operated by Jackson Township

125 jury found "nuisance" and a "dangerous condition" by virtue of its operation of the landfill,

126 conduct was "palpably unreasonable," -- a prerequisite to recovery

127 jury verdict resulted in an aggregate judgment of $15,854,392.78,

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128 Appellate Division

proof quantifying the likelihood of disease

was insufficient to submit the issue to the jury

129 recent toxic tort cases rejecting liability for damages based onenhanced risk

130 recovery depends on establishing a 'reasonable probability' that the harm will occur.

131 plaintiffs failed to satisfy this threshold standard.

They had not quantified their alleged enhanced risk

132 Nothing in the present record indicates the magnitude of the increased risk

or the diseases which plaintiffs may suffer

133 Other courts have acknowledged the propriety of the enhanced risk cause of action,

but have emphasized the requirement that proof of future injury be

reasonably certain.

134 cause of action for unquantified enhanced risk claims

135 task of litigating vast numbers of claims for compensation

based on threats of injuries that may never occur.

136 compensability of the enhanced risk claim depends upon the likelihood of an event

that has not yet occurred and may never occur

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137 contracting of one or more diseases

the risk of which has been enhanced by defendant's conduct.

138 speculative nature of an unquantified enhanced risk claim,

the difficulties inherent in adjudicating such claims,

argue persuasively against the recognition of this cause of action.

139 claim for medical surveillance expenses

stands on a different footing from the claim based on enhanced risk.

140 if medical experts testify convincingly

that medical surveillance is necessary,

141 ability of courts to recognize that medical science may necessarily and properly intervene

where there is a significant

but unquantified risk of serious disease.

142 Compensation for reasonable and necessary medical expenses

is consistent with well-accepted legal principles.

143 we hold that the cost of medical surveillance is a compensable item of damages

where the proofs demonstrate, through reliable expert testimony

144 predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which

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individuals are at risk,

the relative increase in the chance of onset of disease in those

exposed,

145 and the value of early diagnosis,

that such surveillance to monitor the effect of exposure to toxic

chemicals

is reasonable and necessary.

146 We find that the proofs in this case were sufficient to support the trial court's decision

to submit the medical surveillance issue to the jury,

and were sufficient to support the jury's verdict.

147 indeterminate nature of damage claims in toxic-tort litigation suggests that the use of court-supervised funds to pay medical-surveillance

claims as they accrue,

rather than lump-sum verdicts, may provide a more efficient

mechanism for compensating plaintiffs.

148 court-supervised fund to administer medical-surveillance payments in mass exposure cases,

particularly for claims under the Tort Claims Act,

is a highly appropriate exercise of the Court's equitable powers.

149 we conclude that the use of a fund to administer medical-surveillance

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payments should be the general rule,

in the absence of factors that render it impractical or inappropriate.

150 we decline to upset the jury verdict awarding medical-surveillance damages in this case.

151 Such a result would be unfair to these plaintiffs, neither party requested the trial court to withhold from the jury

the power to return a lump-sum verdict for each plaintiff in order that

relief by way of a fund could be provided.

152 Environmental Protection and the ConstitutionScope of Federal Power

153 Missouri v. HollandU.S. Supreme Court, 1920

252 U.S. 416

154 State attempt to prevent U.S. game warden from attempting to enforce Migratory Bird Treaty Act

155 State argues Act unconstitutional interference with rights reserved to States by Tenth Amendment

156 Issue: whether treaty & statute are void as an interference with the rights reserved to the States

157 10th Amend reserves powers not delegated to U.S. to States

158 power to make treaties delegated expressly to U.S. under Constitution,

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supreme law of land

159 State may regulate killing & sale of birds by State's inhabitants

160 does not follow that State's authority is exclusive of paramount powers.

161 Valid treaties are as binding within the terrritorial limits of the Statesas they are elsewhere throughout the dominion of the U.S.

162 Hodel v. IndianaU.S. Supreme Court, 1981

163 Issue: whether surface mining statute exceeded federal govt'sconstitutional powers

164 Prime Farmland provisions of Act, required restoration to yield levels of non-mined land

165 Dist.Ct.: prime farmland provisions beyond Congress' power to regulate interstate commerce

166 directed at facets of surface mining which have no substantial &adverse effect on interstate commerce

167 Rpt: .006%, 21.8K acres disturbed annually of total prime farmland in Nation

168 Dist: disturbance in In. by mining "infinitesimal effect or trivial impact on interstate commerce

Presumption of Constitutionality for legislative Acts

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adjusting the burdens & benefits of economic life

169 Courts will invalidate legislation enacted under Commerce Clause

Only if Clear that there is NO RATIONAL BASIS for Congressional

Finding

170 No rational basis regulated activity affects Interstate Commerce

Or, no reasonable connection between the regulatory means selected

& the asserted ends.

171 Congress entitled to find protection of prime farmland

is federal interest

that may be addressed through Commerce Clause legislation

172 Judicial inquiry under RATIONAL BASIS TEST

is NOT

the volume of commerce actually affected by the regulated activity

173 Congress adopted Act to ensure that production of Coal for Interstate Commerce

would not be at the expense of agriculture, environment, public health,

safety,

174 injury to any would have negative impact on Interstate Commerce

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175 Tenth Amendment note:

Court held political process is primary shield of states against

Congress

176 Tenth Amendment seems unlikely barrier to environmental regulation

177 Enviro laws at risk only if they impose affirmative duties on state officers

rather than regulating individuals

or offering state governments an incentive to adopt certain regulations

voluntarily

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