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Environmental Law

Common Law

Under the COMMON LAW, environmental litigation revolves around six doctrines: NUISANCE, TRESPASS, NEGLIGENCE, STRICT LIABILITY, prior appropriation, and riparian rights.

Nuisance Modern environmental law traces its roots back to the common-law TORT of nuisance. A nuisance is created when an owner or occupier of land unreasonably uses that land in a way that substantially interferes with the rights of others in the area. A nuisance is sometimes referred to as the right thing in the wrong place, like a pig in a parlor instead of the barnyard.

Nuisances can be public or private. A public nuisance interferes with a right or interest common to the general public, such as the public's interest in healthful drinking water. A private nuisance interferes with a right or interest of a private individual, such as a homeowner's right to the QUIET ENJOYMENT of her land.

The primary practical difference between the two types of nuisance is that a government department, such as a state or federal environmental agency, traditionally brings suit to enjoin a public nuisance, whereas only private citizens and organizations may sue to stop a private nuisance. The two concepts can also overlap. A nuisance that interferes with a private use of property can simultaneously interfere with a public interest. For example, factory smoke that diminishes the value of neighboring property is a private nuisance, and it is at the same time a public nuisance if it also endangers surrounding wildlife.

Courts engage in a BALANCING test to determine whether a particular activity amounts to a public or private nuisance. A particular activity is declared a nuisance when its usefulness is outweighed by its harmfulness. The harmfulness of an activity is measured by the character and severity of the harm imposed, the social value of the jeopardized interest, the appropriateness of protecting the interest in a particular locality, and the burden to the community or individual in avoiding the harm. An activity's usefulness is measured by the activity's social utility, its suitability to a particular community, and the practicality or expense of preventing the harm it inflicts. Because there is no exact or universally agreed-upon value for each of the competing interests, it is often difficult for judges to apply the balancing test in a consistent fashion.

Gravity of the injury Although courts apply the balancing test for nuisance actions on a case-by-case basis, judges generally follow certain principles. The injury in question must be real and appreciable; the law does not concern itself with trifles. An occasional whiff of smoke, a temporary muddying of a well, a modest intrusion by roots or branches, and intermittent odors of sauces and stews will not rise to the level of a nuisance.

Courts also consider whether the alleged nuisance is of a continuing nature or has produced permanent or long-lasting effects. Nuisance law may excuse an isolated invasion of drifting pesticides, a single overflow of a sewer outlet, or a debris-burning incident lasting only a few days, and some courts have held that recurrence is a necessary prerequisite to a nuisance determination. For example, one court denied a prison inmate's nuisance claim that he was poisoned by pesticide delousing, because it occurred on only one occasion. In such cases, plaintiffs may have a viable claim for trespass or negligence (discussed later in this article) but not for nuisance.

In suits over POLLUTION, courts also consider which party arrived first in the particular community, the polluter or the landowner alleging harm. The law has permitted polluters to escape liability by proving that a landowner alleging harm moved next to a preexisting nuisance with knowledge of its harmful activities. The rationale for this defense is that the landowner who "comes to the nuisance" generally pays less for the property because the nuisance has reduced its value. If such a landowner were then permitted to remove the nuisance, a windfall would inure to her or his benefit. Increasingly, however, courts place less weight on priority of arrival when evaluating a nuisance claim.

Nuisance claims have traditionally been evaluated from an objective point of view. If an "average" or "normal" person in the relevant community would be offended or annoyed by a certain intrusion, then the intrusion is considered real and appreciable. The idiosyncracies of a hypersensitive plaintiff are generally discounted. Persons with extreme personal tastes and aesthetic sensitivity are usually denied relief under this objective standard. Persons with abnormal physical vulnerabilities, such as those with heart conditions, breathing problems, and tender eardrums, are usually denied relief as well.

In recent years, however, nuisance law has offered greater protection to society's vulnerable members. People are not necessarily abnormal, courts have held, merely because they enjoy spending time outdoors, sleeping with the windows open, or cultivating crops near smoke-billowing smelters. These activities are increasingly viewed as normal activities deserving protection. Many courts are also becoming more sympathetic to plaintiffs with preexisting health conditions or genetic frailties.

Two cases illustrate this trend. In the first, Lunda v. Matthews, 46 Or. App. 701, 613 P.2d 63 (1980), a cement plant was held liable for emitting debris, dust, and fumes that encompassed a landowner's house and aggravated his bronchitis and emphysema. The court reached this determination despite arguments that the landowner's illness made him more vulnerable to debris and dust than would be persons of ordinary health. The court also held that the cement plant could not escape liability merely because it was complying with state pollution standards.

In the second case, Kellogg v. Village of Viola, 67 Wis. 2d 345, 227 N. W. 2d 55 (1975), a landowner was permitted to recover for the loss of mink kittens who were eaten by their skittish mother after being frightened by noises and odors from a nearby dump. The court was not persuaded that the mink were abnormally squeamish or that the landowner was primarily responsible for their death because he had chosen to move next to the dump with full knowledge of its activities.

Aesthetic nuisances are another area where courts have produced inconsistent results. On June 25, 1927, a Pennsylvania court wrote that "[i]n this age, persons living in a community or neighborhood must subject their personal comfort to the necessities of carrying on trade or business," and when an "individual is affected only in his tastes, his personal comfort, or pleasure, or preferences, these he must surrender for the comfort and preferences of the many" (Pennsylvania Co. for Insurance on Lives & Granting Annuities v. Sun Co., 290 Pa. 404, 138 A. 909, 55 A.L.R. 873).

This attitude was expressed more recently when a federal court denied the U.S. government's request that the court enjoin (prohibit) the construction of high-rise office buildings on the Virginia side of the Potomac River—even though the buildings would blight the Washington Monument, Lincoln Memorial, and other national landmarks (United States v. County Board, 487 F. Supp. 137 [E.D. Va. 1979]). These cases reflect judges' reluctance to hold themselves out as standard-bearers for good taste.

Yet aesthetic nuisances are still recognized by courts as viable claims when the extent of the injury is more serious. Judges distinguish between minor vibrations and bone-shaking tremors, normal barnyard smells and sickening stenches, and puffs of dust and blizzards of topsoil. An activity that overcomes extreme defensive measures taken by neighboring properties will be declared a nuisance. Nocturnal noises interfering with sleep can also sound the death knell for a particular activity, especially when there is evidence of widespread community dissatisfaction and not just a single complaint.

Utility of the activity An environmental injury will not be declared a nuisance unless it outweighs the utility of the activity. Determining the weight of a particular harm is often difficult for courts. Judges are human, and humans disagree on just about everything, including nuisance law. The easiest type of case for a judge involves an injury inflicted solely for the purpose of causing harm. A fence constructed with the intent to obstruct a neighbor's view will always be declared a nuisance. No socially redeemable value is assigned to animus and hostility.

Most cases, however, do not involve a nuisance created by adverse motivations. For instance, polluters usually produce useful products integral to a local economy, and the market value of an injured property is rarely greater than the business investments made by the polluter. But dollar figures are not always of paramount importance to judges.

Two leading cases illustrate the different results reached by courts in weighting utility. In the first, Madison v. Ducktown Sulfur, Copper, & Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904), the court denied a landowner's requested relief, stating,

In order to protect by injunction several small tracts of land, aggregating in value less than $1,000, we are asked to destroy other property worth nearly $2,000,000, and wreck two great mining and manufacturing enterprises…. The result would be practically a confiscation of the [polluter's] property … for the benefit of the [landowner]—an appropriation without compensation.

In the second case, Hulbert v. California, 161 Cal. 239, 118 P. 928 (1911), the court granted the landowner's request for an injunction, over the polluter's claim of greater hardship, saying, "If the smaller interest must always yield to the larger, all small property rights, and all small and less important enterprises … would sooner or later be absorbed by the large and more powerful few."

Some environmentalists maintain that the law must protect the environment at any cost, whereas extreme advocates of the free market believe that business must be allowed to expand unhindered by governmental regulation. Certain results reached by particular judges may appear unreasonable to both extremes, but courts have attempted to strike a moderate balance over the long run.

Technology has often provided the means to moderation. Requiring businesses to shut down and relocate, or homeowners to endure a nuisance or move, are remedies not favored by the law. Courts avoid such remedies by exerting pressure on companies to develop technologies to make their operation safer for the environment. For example, one court ordered a smelting business to install specific arsenic control measures to abate a nuisance, instead of closing down the business as requested by the landowner (American Smelting & Refining Co. v. Godfrey, 158 F. 225 [8th Cir. 1907]).

Many nuisances can be remedied without state-of-the-art technology. For example, airports have been forbidden to authorize low-level flights over certain residences, and farmers have been ordered to confine foul odors to particular buildings. Other nuisances can only be abated by the best available technology. Sometimes, however, it is economically impractical or prohibitively expensive for a polluter to use such technology.

Courts disagree about what should be done when a polluter can do nothing short of ceasing operations to lessen an injury. Many courts deny injunctive relief if the polluter is already using the most modern pollution control methods available. Some courts grant an injunction ordering the polluter to shut down when state-of-the-art controls hold no further promise of relief. Other courts award damages for a nuisance that occurs despite the use of the best available technology.

Trespass and Negligence Nuisance actions deal primarily with continuing or repetitive injuries. Trespass and negligence actions provide relief even when an injury results from a single event. A polluter who spills oil, dumps chemicals, or otherwise contaminates neighboring property on one occasion might avoid liability under nuisance law but not under negligence or trespass law.

Trespass involves an intentional interference with the property interest of an owner or occupier of land. Negligence occurs when a defendant fails to exercise the amount of care that would be exercised by a reasonably prudent person under the circumstances. Whereas trespass requires the injury to result from deliberate misconduct, negligence results from the accidental and inadvertent.

Under nuisance law, liability is based on an unreasonable and substantial interference with the legal interests of a landowner's property. Conversely, trespass is proved by evidence of any tangible invasion of a landowner's property, however slight. Similarly, pollution resulting from negligence need not produce a substantial injury in order for a landowner to recover. However, a landowner who suffers only minor injuries from the negligence or trespass of a polluter will receive only nominal damages.

Strict Liability The doctrine of strict liability for abnormally dangerous activities provides a fourth remedy for those suffering environmental harm. To recover under this doctrine, the landowner must demonstrate that a condition or activity qualifies as abnormally dangerous and was in fact the cause of the environmental injury. Many common activities have been decreed abnormally dangerous, including collecting large quantities of water in hydraulic power mains, storing gas in large amounts, and transmitting high-powered electricity under city streets.

Courts sometimes struggle in determining when something rises to the level of abnormally dangerous, and liability generally also attaches for extraordinary, abnormal, exceptional, and nonnatural activities or conditions. Examples of such activities are oil well drilling, crop dusting, pile driving, and blasting.

Prior Appropriation and Riparian Rights A riparian proprietor is the owner of land abutting a stream of water or river and, as such, has a qualified right in the soil to divert the stream as permitted by law. Generally, a riparian owner has the right to all the useful purposes to which a stream passing through the land may be put. Specifically, the rights of riparian owners have been divided into two discrete categories.

The first category is known as prior appropriation. Under the principles of prior appropriation, the law provides that whoever first appropriates stream water for a beneficial purpose acquires a vested right to the continued diversion and use of that water against all claimants who might later do the same. Courts often describe prior appropriation as the principle "first in time is first in right."

Prior appropriation places downstream owners at a distinct disadvantage because it permits upstream owners to completely divert or contaminate stream water so long as they do so for a beneficial purpose. Early cases suggested that no beneficial purpose was served when water was diverted for reasons other than commerce or profit, such as for mere personal pleasure. Today, however, courts permit riparian owners to appropriate water for almost any aesthetic, recreational, preservational, or pollution control purpose.

Prior appropriation principles are followed in many western states where water is scarce, and efficient and economic uses for streams and rivers are necessary. In the eastern states, the doctrine of riparian rights is followed. This doctrine has two strains. The first provides that each riparian owner has an absolute right to the flow of stream water uninterrupted by any unnatural (i.e., human) causes. The second strain provides that each riparian proprietor has a right to any reasonable use of the stream water passing through his or her land, and is protected from unreasonable uses upstream. This doctrine does not encourage the economically efficient use of water, as does the doctrine of prior appropriation—but water is not scarce in the eastern states where riparian rights theory is applied.

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