Private Nuisance – use of property that interferes with your neighbor’s use and enjoyment of her property – defenses include failure to demonstrate causation failure to demonstrate injury balancing of the equities – coming to the nuisance

Public nuisance – unreasonable interference with a right common to the general public – significant interference with the public health, safety or comfort – defenses include failure to show causation failure to demonstrate harm balancing of the equities

Trespass interference with the possession of property (chattels or land) – must prove: invasion; ownership; disturbance in the property – need not demonstrate physical harm – need not prove wrongful motive – need not be a person

Negligence failing to do something that a reasonable person, guided by ordinary considerations, would do – defendant under a duty to conform to a standard of conduct – defendant breached that duty – “proximate cause” : injury would not have occurred but for that action – plaintiff suffered loss

Negligence per se violation of an environmental law, which is the proximate cause of the injury, may be seen as negligence “per se” and therefore render the defendant liable in a civil action

Strict liability – assessment of liability for damages without a showing of negligence – person engaged in ultrahazardous activity is liable for any harm that results, regardless of the care exercised to prevent that harm

Exercises Sue Jones stores gasoline in a 55 gallon drum in her yard. A prankster throws a lit match into the drum. The explosion damages the neighbor’s garage. Cause(s) of action? Does Sue have any defense? Michael Jackson comes into your yard and starts singing. What can you do? Paula Jones, after winning a big lawsuit, buys a condo near the airport. She brings a nuisance action, arguing that the airplanes make too much noise. What are her chances?

Why not rely on common law?

Solid waste

RCRA Subtitle D (HSWA 1984) – EPA required states to designate open dumps (those that posed a risk to public health/safety; 1979) – required EPA to establish criteria for sanitary landfills most provisions effective 1993 location and operation liners, caps and collection systems required groundwater monitoring closure and post-closure guarantees

Solid waste is primarily a state program landfills must have a state permit EPA approves the state’s permitting system

Result? increased the cost of managing solid waste, decreased the number of landfills Number of landfills declined 62% between 1988 and 1995 Wisconsin lost 717 landfills; New York went from 1600 to 38

Effect on capacity: crisis? Overall, no. —why?

Waste management strategies recycling (about 28%) incineration siting of regional landfills interstate transport of waste

Recycling in Wisconsin: Act 335 (1989) bans lead acid batteries, waste oil, yard waste, aluminum containers, corrugated paper, glass, newspaper, plastic containers, steel containers from the landfill local governments become responsible units 36% recycling rate funded by a 5% surcharge on businesses

For Tuesday CERCLA introduction Writing assignment is due Hand out case studies

RCRA subtitle C (quick review) Two-step determination (solid; hazardous) – Listed or characteristic Threshold determination – Over 220 lbs. in any month (2.2 lbs of acutely haz) makes you a SQG; over 2,200 lbs. a LQG Cradle to grave and universal tracking manifest Generator determines waste

Interstate transport of waste 49 states are exporting waste (24% of all municipal solid waste; 39 million tons) percentages are increasing over time – NY: 8.2 million tons – Fresh Kills landfill (27% of all NY garbage) some states don’t want to be “dumping grounds” (especially PA, VA and Michigan)

END OF THE ROAD: Mangled cars from the World Trade Center site at Fresh Kills landfill in New York

States v. the Commerce Clause Version One: states seek to ban waste importation Version Two: local governments seek to control the flow of waste Discussion questions

In groups What has been the Court’s position/rationale on restricting the movement of interstate waste? (flow control and out-of-state waste) What are the arguments for and against restrictions? What is your opinion and why?