Lesson Plan 1/17/2012 Intro (20 minutes) 1.

Review Exercise for Tragedy of the Commons: On Tuesday, we talked about Garrett Hardins concept of the tragedy of the commons. You did a great job of thinking through the concept. To cement that understanding, lets do a quick exercise. Weve picked three recent environmental disasters from the ones you identified as issues of interest in your notes to us. Choose one of these to discuss with your partner and try to answer the following questions about it: o What is the commons? o Is it a problem of putting in or taking out? o Whats the carrying capacity? o What are the externalities? o Who do the externalities affect? o Who is the actor who is not internalizing the costs? o What law could be used to make the actor internalize the cost? Issues: Global Climate Change; Fukushima Nuclear Disaster, Florida Everglades What questions or problems did you face, if any, in answering these questions, or what did you find interesting? (e.g. how do we determine what temperature rise is too much (climate change)?) Intro to Reading a Case 1. Cases are tough Poll: How many were reading a case for the first time? Reactions? Scott Turow, who wrote 1L, said that reading a case for the first time was like stirring cement with his eyelashes 2. Pass out handout for briefing a case. In law school, it is helpful to brief cases by writing out the facts, issue, holding, and reasoning. Cases especially enviro cases can be dense, and the important elements are not always presented in a straightforward way, so it helps for understanding and review to write it out for yourself. As we go through Boomer today, filling out this form (or writing on your computer using this format) will help you review later. Going forward, you will want to brief the cases as you read them.

Boomer v. Atlantic Cement - Drawing (10 minutes)

Boomer Choose Your Own Adventure Powerpoint (35 minutes)

Lets start with the facts. (One of us is drawing, and they are recording on their briefing sheets/computers.) (Remind them to think: Whats the tragedy of the commons here?) o Facts: Near Albany; cement plant causing dirt, smoke, vibration; neighbors (Boomer) bring suit and win temporary damages but denied an injunction in the lower court. Now this is the opinion on appeal (notice what court its in: New York Court of Appeals). What relief did Boomer seek? (Damages, Injunction); What institution did he go to for relief (Court) (This is called bringing litigation.) What legal claim did he use? (Nuisance.) What type of law is a nuisance claim? (common law claim). Common law claim facts + formula (Formula: A private nuisance is an unreasonable interference with ones use and enjoyment of land.) What other options were available besides litigation? Why did Boomer choose litigation? Then: SLIDE #1 o Administrative process: This avenue did not seem to be great for Boomer because of his lack of access to and influence in the decisional process. Zoning: Cement plant already got support of community through local zoning regulations, and most people besides immediate neighbors wanted such a plant. State pollution control system: This highly complex govt org. is probably more concerned with general business of pollution control, not discrete local remedies for small individual claims. This is a process over which the individual citizen usually has little control. http://www.state.nj.us/dca/divisions/dlgs/p rograms/au_docs/40_37c_1.pdf o Litigation: Litigation seems like the best opportunity for the Boomers. Can hire a contingent fee lawyer; seek relief at a local courthouse where one can win damages and injunction; and there is a flexible scope of remedies and broad, familiar theories for the judge to apply, without the need to enter quagmire of admin. system. Litigation can also have

psychological benefits creating a definitive end to the problem/ vindication. o Environmental tort remedies: Tort law usually looks to community standards of appropriateness, and since you have a jury deciding the case, actual decision makers are member of the local community. This helps demystify the technicalities of environmental cases. Additionally, under environmental tort law, if successful, plaintiff can always get compensatory damages. The question of injunction in all modern courts is, like in Boomer, no longer automatic, but requires a balancing of the equities. Based on the formula, do you think the Boomers qualify for relief? What did the court think? What was the issue (for briefing sheet)? SLIDE #2 o Issue: What relief is Boomer entitled to on his nuisance claim? SLIDE #3 What was the holding (for briefing sheet)? o Holding: Boomer gets an injunction which shall be vacated upon payment of damages by defendant o What does this mean? SLIDE #5-6 What was the reasoning? SLIDE #7, 8 o Mr. Bergan decides that the problems associated with air pollution are beyond the circumference of one private lawsuit. Thus, the court carved away the larger public issues raised by the case, and trimmed it down to a dispute between neighbors, not much different in kind from a quarrel between homeowners about an overhanging treelimb. o The judge balances the equities doesnt want to shut down this important industry, which has economic benefits for the community. Dissent: SLIDE #9 o Judge Jason stressed the seriousness of the air pollution problem and the contribution of dust from cement plants to that problem. He also argued that the majority was in effect, licensing a continuing wrongIt is the same as saying to the cement company, you may continue to do harm to your neighbors so long as you pay a fee for it. The Aftermath: SLIDE #10 o As it turns out, the proceedings on remand suggest

that the Court of Appeals decision was actually more favorable in its ultimate effect on the plaintiffs than one might have expected. Taking advantage of the Court of Appeals open-ended invitation to reconsider damages, the lower courts were generous in their appraisal of the plaintiffs claims. Success? SLIDE #11 o The plaintiffs were not completely satisfied with the outcome. To this day, Boomer and Millious believe that the judge should have shut the plant down entirely. Millious complains that he ended up with a smaller house on less land with a bigger mortgage. Even though he now lives four or five miles from the plant, there is still occasionally dust in the air. Boomer sold his land to the company at a price negotiated by his lawyer. He then moved his business a few miles away. He still believes that the judge should have taken the bull by the horns and issued the injunction. In contrast, David Duncan, the lawyer who represented all but one of the plaintiffs, is more favorable in his assessment of the outcome of the case. He feels that upon reflection, it was fair. Overall, he thinks virtually all of the plaintiffs got very good settlements for the value of their land. He was particularly happy with the outcome for one family, the Kenleys, who were able to get nearly the entire value of their house in exchange for an equitable easement that was never properly filed by the company. His recollection is that the case actually led the state to pursue an enforcement action against the company that resulted in some improvements in pollution control. Reading for Tuesday: Were going to talk about the

Wrap-Up/Segue (10 minutes)

limits of nuisance law. Can it solve global problems?

Possible answers to review exercise: o 1) global climate change (Janice) commons: global air putting in carrying capacity: some tipping point of global temp? Who decides what that is?

externalities: rising sea level, floods, drought . . . affect everyone on earth but third worlds more, coastal areas more, desert areas more, etc. cars, powerplants common law? (well see this next class); Clean Air Act? (well get to this) o 2) Fukushima Nuclear Disaster (Rajit) area around Fukushima, Japan putting in carrying capacity: very low externalities: cancer, sickness right away affect those in the area nuclear plant safety regulations o 3) Florida Everglades (Zach Frank) wetlands area both putting in and taking out? pollution (agricultural runoff) and depletion of resources carrying capacity ? . . .)