Fall 1999
Law School Course # M290 ( Urban Planning M264) Environmental Law

4 units
T,Th 11-12:15 & W 11-12
Rm. 1337, Law School

Professor Freeman
Office 2435
Tel. # (310) 206-2611
Office Hrs: W 3-5
Freeman@Law.UCLA.Edu

The casebook for the course is Plater et al., Environmental Law and Policy: Nature, Law and Society (referred to in the syllabus as CB). The other assigned text is West's Selected Environmental Law Statutes (referred to in the syllabus as Stat). If you prefer not to buy the statute book, you may photocopy relevant sections of the assigned statutes from the copy on reserve in the library. I believe, however, that it is far better to own your own statute book for easy reference and because the statutes in it are complete. From time to time, you will also receive additional photocopied materials (referred to in the syllabus as PM) at no cost. I have also required that you read a work of non-fiction entitled, A Civil Action, which is now a major motion picture starring John Travolta. Some of you have already read this book for other classes. If so, review it. If not, start reading it immediately so that you have finished it by the time we begin the section on Toxic Torts.

I make a genuine effort to keep the reading assignments reasonable with the expectation that you will in fact do them. Your understanding of this course will be greatly enhanced by your pre-class preparation. In the interests of full disclosure: this is a difficult and highly technical course. There is no substitute for reading environmental statutes closely. I cannot stress this enough. It will help you immeasurably to skim them as a whole for general structure, and then to read the relevant, assigned sections very carefully, numerous times.

I expect each of you to come to class prepared to discuss the assigned materials. I will seek participation from you on a regular basis. My practice is to call on people, rather than assign you to panels to be "on" only on a given day. In other words, you are potentially "on" all the time. If this poses any difficulty for you, please feel free to come and see me. While I will not penalize you by adjusting grades down, participation may affect your grade positively up to a half grade (from, say, B to B+). In addition, participation will be relevant to the extent that there are discretionary judgments to be made (if you are a borderline B+ but have made no effort in class, you will receive a B).

If you require any accommodation in the classroom due to any kind of disability, please feel free to let me know. I will be happy to do whatever I can to enhance the learning environment. I am also happy to hold separate sessions for non-law students in order to go over basic legal concepts that we cannot take up in class. In addition, non-law students will be graded as a separate pool.

The syllabus below describes what the course will cover and in what order, but is subject to change. I will keep you advised so that you can plan ahead. I will also provide a more detailed syllabus for the later sections as we move along.

I. Introduction

1. A Legal Process Approach to Environmental Law: the way the legal system works

2. Regulatory Tools for Approaching Environmental Problems

3. Common Law and Statutes

Charts of Federal Environmental Laws, and Executive Agencies

PM: 1-4

 

II. Commons, Externalities and Economic Analysis

CB: 16-20; 24-31; 36-38; 97-106; 114-117

 

III. Risk and Uncertainty

CB: 124-136; 141-148; 595-598

 

IV. Common Law Foundations of Environmental Law

Private Nuisance

CB: 157-163; 166 (sec.2 -170)

Public Nuisance

CB: 178-187

Trespass, Negligence, Strict Liability

CB: 187-197

Remedies: equitable remedies, compensatory damages, permanent damages, punitive damages, indirect economic injuries, natural resource remedies

CB: 205 (Sec. 2)-212; 216 (d)-218

 

V. Toxic Torts

Jonathan Haar, A Civil Action

CB: 255-269; 292-297

 

VI. RCRA (The Resource Conservation and Recovery Act amendments to the Solid Waste Disposal Act): Cradle to Grave Regulation

Note: All references to particular sections are denoted in the statute book as SWDA (Solid Waste Disposal Act) sections, not US Code sections.

CB: 317-321; 763-776

Stat: §§1002, 1003, 1004(3), 1004(5), 1004(27), 1004(33), 1004(34)

CB: 776-786

Stat: §§3001(a), 3001(b)(1), 3002, 3003, 3004(a)

CB: 788-794

Stat: §3004(d)

CB: 798-802

Stat: §7002

 

VII. CERCLA (The Comprehensive Environmental Response, Compensation and Liability Act): Strict Liability

Again, all references to sections are to the original CERCLA statute, rather than to the U.S. Code. (For example, on p.1122 of the statute book, you find §107 of CERCLA, which is also §9607 of the Code.)

(1) Basic Liability Rules

CB: 803-823

Stat: §§107(a) and (b) -- liability section; §§101(1), 101 (9), 101(14), 101(22), 101(32), 101(35)(a)---definitions

 
(2) More Liability Rules: Lender Liability; Private Litigation; EPA Administrative Orders

CB: 826 (start at section 4) - 829 (stop at note 3); 835-841

Stat: §§101(20)(a); §101(35)(E)---lender liability; §§106 (a) & (b)---administrative orders


(3) Site Remediation (Clean up)

CB: 841-849

Stat: §105(a)---National Contingency Plan; §§121(a) & (b)---clean up

 
(4) Cost Recovery, Settlement and Strategic Behavior

CB: 857-866

Stat: §§113(f)(1) & (2)---contribution; §§122(g)(1), 122(h)(4)---settlement

 

VIII. The Constitutional Law of Environmental Law

(1) Public Trust Doctrine

CB: 988-994 (through note 2); 996-1011


(2) Public Powers and Private Property Rights: Takings

CB: 1039-1040; 1045-1051; 1064 (section 2) - 1087 (through note 4); 1095-1097 (stop at commentary)


(3) Federal Pre-emption

CB: 323-335


(4) Dormant Commerce Clause

CB: 344 (start at C)-350 (through note 4)


(5) Commerce Clause, Tenth Amendment and Eleventh Amendment

CB: 356-374

 

X. The Administrative Law of Environmental Law

(1) Arbitrary and Capricious review

CB: 377 (Begin at B.)-393 (stop at note 5)


(2) Citizen Enforcement

CB: 397 (Begin at Stewart Excerpt) - 408 (stop at Bennet v. Spear)


(3) Judicial Deference

CB: 418-424; 427-430

 

XI. NEPA: Information Disclosure and Stop and Look

CB: 611-615; 619-621; 624-633 (stop mid-page before last two paragraphs);

639-642; 644 (begin at section 2)-652 (stop at Scoping)

Stat: §§2, 101, 102

 

XII. The Clean Air Act

To begin, skim §§107, 108, 109, 110, 111 and 112 for the basic architecture of the Act, and read p. 442 of the text for an introduction. As you move through the reading assignments in this section of the syllabus, the cases and notes will refer to sections of the statute. Simply consult the relevant sections of the statute as you go to help clarify the text. In the syllabus below, I list the sections of the statute on which we will focus the most. Because this is a highly technical statute, reading the relevant statutory sections numerous times in conjunction with the assigned text will be crucial.

(1) Harm-Based Standards

CB: 441-455

Stat: §§108 (a) (1); §109 (a) and 109 (b);


(2) Implementation

CB: 458-473

Stat: §110 (a) in entirety; §110 (c) (1) (A) and §110 (c) (1) (B)


(3) Permitting and Environmental Justice

CB: 473 (section 3) - 481


(4) Non-attainment zones

CB: 483-493

Stat: §171 (1), (2) and (3); §172 (a); §172 (c) (1) and (2); §173 (a); §173 (c); skim

§181 (a) for classification scheme and time limits


(5) New Source Performance Standards

CB: 489 (note 5)

Stat: §111 (a); §111 (e)


(6) Prevention of Significant Deterioration

CB: 493 (begin at section 1) - 495

Stat: §160; §161; skim §§162 and 163 for classification scheme and limits

 

XIII. The Clean Water Act: Technology-Based Standard-setting

This is another technical statute. Again, the text refers to important sections of the statute and you should consult the statute as you read. Again, I have listed the most important sections below.

(1) Technology-Based Emission Limits

CB: 501-515 (through note 5)

Stat: §402 (a) (1)-(3)


(2) Implementation

CB: 516 (begin at c) - 523 (through note 3); 528 (Atlantic States case) - 531 (stop at commentary)

Stat: §301 (b) (1) (A) and §301 (b) (2) (A) - (E); §402 (b) and (c)


(3) Water quality based permits and the non-point source problem

CB: 533 (section d) - 538 (stop at commentary); 545-548

Stat: §303 (d); §304 (l); §319 (a)

 

XIV. Command and Control Regulation and the Alternatives

CB: 587-592; 600 (start at B.) - 606; 979-982