Chapter 3: The common law in Modern Environmental Law.( big common law, small EPA)
1. A citizen participating:
· tort law is a citizen enforcement.
· Cause of action: private/public nuisance, trespass and negligence
2. Tort law Purpose: Social engineers.
Torts law :
· liability shifting: negligence; nuisance; intentional or not; strict
1) nuisance: nuisance can be described roughly as use of property by one party so as to (a) interfere substantially with the reasonable use, enjoyment, or value of another’s property; (b) injure life and health; (c) offend the senses or violates principles of decency; or (d) obstruct free passage and use of highways, navigable streams, public parks and beaches, and other public rights. There are two distinctive branches: public nuisance(public rights) and private nuisance( private individuals’ property rights)
A. Boomer case:
a. Boomer is not an environmentalist.
b. private nuisance[UMKC1] : a cause of action for most non-statutory environmental cases; unreasonable interference of the use, enjoyment of the property.
c. the cement facilities: the knowledge of possible pollution constitutes the intentional tort.(permits and EIS or EA)
d. No injunction granted[UMKC2] , conflicted with precedents:
I. The dissenting opinion: the nuisance in current case is not only damaging to the plaintiffs, but also is decidedly harmful to the general public.
ii. licensing a continuous wrong
iii. the inverse condemnation should be allowed only for the public
iv. no servitude on land without the consent of the land owners
v. the cement company should develop new devices because since its establishment, it is aware of the influence on the plaintiffs
e. the threshold of the case: the separation of power
f. why choose to litigate in common law rather than trusting the official public law system?
I. Most effective, better control; damage recoveries.
II. The large amount of investment; the public health instead of private small individual claims; the politics and economic concern of public law; permit shileds
B. Public nuisance:
a. American Electric Power Company, Inc v. Connecticut
a) Standing issue:
Public nuisance[UMKC3] : Individual parties could not bring public nuisance normally[UMKC4] , always government—governments have special solicitude based on parens patriae
CAA standing: statutory standing according to procedural rights to protect relative rights
CAA preemption: congress preempt state common law public nuisance against power plants for the release of GHG emissions. This blocked state governments and others from going to federal court to file a claim of “public nuisance” in order to get judicial limits imposed on electric power plants’ release of “greenhouse gases” that may warm up the earth.
b. New York v. Schenectady Chemical company
I. Hired a third party to dispose highly dangerous waste water where the third party just dumped or buried in its own site, but the site has loose surface soil and underground water is the main water resource in the area and also drained into two other water sources. Contamination 17.8%, refuse to pay. Sued by the state agency.
II. Public nuisance: often used when there is no such remedies in the statutes.
III. the waste from the site had migrated into neighboring surface and ground water
IV. state of art defense: Even the company has satisfied the administrative regulation, its conduct has hurt the public
V. vicarious duty: the chemical company is still liable because :1) it is negligent to hire an incompetent contractor;2) it failed, with the knowledge thereof, to prevent or remedy the unlawful dumping or bury; 3) its own emission of wastes is illegal; 4)its own manufacturing was inherently dangerous; 5) its own work involved the nuisance.[UMKC5]
C. Possible defenses in environmental torts:
a. permit defense: useless unless the permit system has expressly recognized the defense or the statute is interpreted to have implied to reveal the common law remedies.
b. Primary jurisdiction
c. Statute of limitations
d.Coming to the nuisance: self-inflicted; no right to insist(plaintiffs have better rights; not purchasing but use)
e.Releases from liability: the shares
2) strict liabilities
A. Definition: one exercise abnormally dangerous activity is subject to the liability for harm to person, land or chattels, although he has exercise utmost care.[UMKC6]
How to evaluate “abnormally dangerous”:
a. Whether extremely risk of harm?
b. Whether the harm is likely to be great?
c. Whether the risk cannot be eliminated by the exercise of reasonable care?
d. Whether not common usage?
e. Whether the location is not appropriate?
f. The value of the activity to the community?
B. Branch v. Western Petroleum Inc.
a. Branches’ property was adjacent to Western Petroleum’s disposing site of combination waste water of oil, salt and chemicals, not fit for culinary and agricultural uses. Western just dumped with the intention of seeping into underground to dissipate. Contaminated well of Branches, rejecting to quit.
b. Whether abnormal is to see whether unduly dangerous and inappropriate to the place where it is maintained. (inappropriate in the location)
Should know the hydrological situation, the porous information when opera
expert witness.
2) There is a nuisance just without physical injuries. As the subject of equity jurisdiction, as long as there is a dangerous possibility that the threatened or potential damage would occur, the court does not need to wait for the real occurred damage to grant a relief.[UMKC10]
Dissenting: as long as there is a dangerous possibility that the threatened or potential damage would occur, the court does not need to wait for the real
[UMKC1]Most sued upon as “intentional” torts: not malice but with the knowledge of “substantially certain to happen”
[UMKC2]Fully agreed to avoid that immediate drastic remedy(economic comparison): Grant the injunction conditioned on the payment of permanent damages to plaintiffs which would compensate them for the total economic loss to their property present and future caused by the defendant’s operations.
[UMKC3]Common law!!thus must apply Luhan case three requirements for standing:
• Concrete injury with immediacy
• Injury traceable to defendant
• Favorable decision will redress the injury
[UMKC4]If they have special interests which are different in kind and not just in degree from the public as a whole.
[UMKC5]Two ways to overcome the independent contractor defense:
1) the party negligent in hiring that particular contractor.
2) non-delegable doctrine: if the duty surrounding the task turned over to the contractor is sufficiently important and risk-laden for the community, non-delegabke duty.
3) collusion: the party who hired the contractor was cooperating in the wrongful act.
[UMKC6]The advantages: even without foreseeability.
[UMKC7]A single injury
[UMKC8]Shifting Burden of Proof to Defendants to show divisible harm
[UMKC9]Foreseeability of the cause of action; affordable costs of transactions.
[UMKC10]Nuisance is just a right thing in a wrong place.
