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The analysis it dictates requires courts to engage in the sort of risk assessment that is more appropriate to legislatures. Legislatures not only have the technical and scientific expertise readily at hand to enable them to consider such problems, but they are also called upon to make value judgments about what risks to human life and health society is willing to accept. Furthermore, if a decision is going to be made that the public has to bear the risks of a certain pollution-generating activity, 'it is more appropriate for legislatures than courts to assign such risk. Also, some regulation sets tolerable risk levels through "technology forcing standards" that require industry to develop technologies that will minimize or eliminate risks altogether. While courts may be theoretically capable of bringing about such desirable technological innovation in their adjudication of nuisance actions by, for example, issuing an increasingly stringent pollution abatement schedule, they lack the technical expertise needed to construct and supervise such regulatory regimes effectively. 20 For all these reasons, judicially fashioned nuisance law has not developed sufficiently to cover many of the problems addressed by modern regulatory programs. This limitation of nuisance is magnified when it comes to cumulative and long term impacts. Frequently, the action of an individual polluter does not cause harm, but if several people take similar action, the combined effect can be devastating. In the typical nuisance case, though, a court will only have one defendant before it; namely, the party alleged to be creating a nuisance by the use of its property. In this traditional twoparty context, the problem of cumulative impacts cannot be adequately addressed. All of the above problems of proof are, understandably, even more difficult in cases of long-term harm, where the ill effects of toxics and pollution may not appear for many years.

Preemption of Nuisance by Federal Regulatory Law Sometimes conduct that would have been a nuisance is no longer a nuisance because courts hold that the very existence of a regulatory regime has, and was intended to, displace common law remedies like nuisance. This situation could result in a most

Courts themselves have not hesitated to point out the limitations of nuisance in addressing modern environmental harms and have expressed diffidence about their own capacity to protect the public from such harms through the adjudication of nuisance actions. See, e.g., Boomer v. Atlantic Cement Co., 257 N.E.2d 870, 871 (N.Y. Ct. App. 1970); O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 642, 658 n. 40 (E.D. Pa. 1981); Adkins v. Thomas Solvent Co., 487 N.W.2d 715, 717 (Mich. 1992).

ironic outcome under the bills now before Congress where noncompensability under the regulatory regime may depend on the existence of a common law nuisance. Radio signals in Michigan: Residents of Oak Park, Michigan sued in nuisance, complaining that the defendant radio station's signals were interfering with operation of their home electronic equipment. Their case was dismissed on the ground that the Federal Communications Act preempted state nuisance law in the area of radio frequency interference. The residents were able to get the FCC to intervene, and it ordered the station to take costly measures to eliminate the problem. Had s. 605 been law, the FCC action could have been compensable because the nuisance exception might not have been available. Airport Noise in Chicago: Landowners near airports can't bring nuisance actions concerning the number of flights per hour, aircraft technology, or takeoff angle of planes because such subjects are the exclusive province of the FAA. 22

Preemption and Interstate Nuisance

Interstate pollution is peculiarly a subject for Federal law. Bills like s. 605 seem not to take account of this fact. For example, interstate water pollution was traditionally governed by a Federal common law of nuisance. The Supreme Court has now held that the clean Water Act preempted the Federal common law of nuisance. 2?

24

While state nuisance law still exists, the Supreme Court has ruled that only the law of the state that is the source of the pollution is applicable. This ruling potentially presents a quite troublesome situation. For example, under the clean Water Act, the EPA can (and perhaps must) refuse to issue a discharge permit if the discharge would violate a downstream state's water quality standards. 25 Under section 204 (d) (1) of s. 605, however, compensation may be required for such a refusal unless

2. Broyde v. Gotham Tower, Inc., 13 F.3d 994, 997-98 (6th Cir. 1994), cert. denied 114 S.Ct. 2137 (1994).

22 Bieneman v. City of Chicago, 864 F.2d 463, 473 (7th Cir., 1988), cert. denied 109 S.Ct. 2099, 2100 (1989).

23

Illinois v. Milwaukee, 101 S.Ct. 1784 (1981).

International Paper Co. 812 (1987).

v. Ouellette, 107 S.Ct. 805, 809,

29 Arkansas v. Oklahoma, 112 S.Ct. 1046, 1056 (1992).

the discharge constitutes a nuisance in the state "in which the property is situated" (the source state). In such circumstances, the discharger seeking a permit is unlikely to be violating its own (source) state's law. s. 605 could thus interfere with the administration of interstate pollution law under the clean Water Act.

Nuisance and the Background Principles of Nuisance

26

27

So far this memo has assumed that the nuisance exception in the bills before Congress would require a showing that a regulated activity meets all the technical standards of nuisance in order for the exception to be triggered. That seems to be the standard of H.R. 925; it is less certain as to s. 605 which refers to the background principles of nuisance and property law. It is possible that the bills (and particularly S. 605) intend to impose a less technically rigorous standard, and that it would be enough to show 'nuisance-like' conduct to avoid the compensation requirement. If so, a problem of a quite different sort is presented. The issue would no longer be whether conduct meets the many technical requirements of nuisance, but rather the vague and open-ended question: What is the scope of the phrase "a nuisance as commonly understood and defined by background principles of nuisance and property law?" Should this be the question presented by the bill, all hope of a bright-line, simple, and straightforward compensation law will quickly evaporate. It would be hard to imagine a standard more prone to produce extensive litigation and uncertainty, precisely the goal the proponents of the bills say they want to avoid.

20

Perhaps the best way to illustrate what is likely to be in store is by looking back to the Supreme Court's decision in the 1987 case, Keystone Bituminous Coal Association v. DeBenedictis.? The case involved a state law regulating coal mining in order to prevent surface subsidence. The Justices divided 5-4. In effect the question before them was whether the state was engaged in

26 As noted above, whether a regulated activity falls within the limited section 5 (a) hazard or damage exceptions is a question that will have to be answered as well.

• However, section 501(6) speaks about compliance "with current riuisance laws," which seems more directed to technical nuisance.

:

107 S.Ct. 1232 (1987).

abating activity "akin to a public nuisance."29 Justice Stevens and four of his colleagues found that Pennsylvania was merely restraining "uses of property that are tantamount to public nuisances "jo and that it is not necessary to "weigh with nicety the question whether (the activity) constitute (s] a nuisance according to common law." Chief Justice Rehnquist and three of his colleagues insisted, on the contrary, that "[t]his statute is not the type of regulation that our precedents have held to be within the 'nuisance exception' to takings analysis. "32 If the Justices of the United States Supreme Court have to struggle so much to determine where to draw the line over the nuisance principle, one can only imagine what the claims process would look like under an enacted s. 605.

Public and Private Nuisance

Public and private nuisance are two quite different legal wrongs. Neither H.R. 925 nor S. 605 distinguishes between them, and presumably the use of the term nuisance in both bills is meant to embrace both public and private nuisance. While most of the discussion above is directed to private nuisance, the same basic point applies to both public and private nuisance. That is, both have certain technical requirements that have to be met, or a nuisance claim will be dismissed by a court.

Public nuisance interferes with the exercise of public rights (rather than private property rights). Widely disseminated water and air pollution can be public nuisances, and classic public nuisances are keeping a house of prostitution, storing explosives in the midst of a city, making loud and disturbing noises, and blocking public thoroughfares. This distinction means that pollution making water unusable for many downstream landowners in the use of their land is not a public nuisance because it only interferes with private rights. But pollution that interferes with the public right to fish in a river, or the public right of navigation, is a public nuisance. Thus, many harms--even widespread ones--are not public nuisances because they don't interfere with rights one has as a member of the general public. There has, however, been a resurgent and sometimes successful modern application of public nuisance

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actions by state prosecutors, especially in hazardous waste cases.

Federal Law Encroachment on State Jurisdiction

While nothing in either H.R. 925 or s. 605 directly preempts state authority to define state nuisance law, one potentially undesirable consequence of the bills, if enacted, would be to engage Federal agencies and courts in an ongoing process of defining the boundaries and rationale of nuisance law in all 50 states. It seems inevitable that this process will bring a significant Federal influence to bear on the interpretation and content of an area of state law that has always been the special domain of the states. The Federal influence could be especially strong in influencing nuisance law, where state-law development has not been extensive in recent years, having been largely displaced by extensive regulatory statutes.

-end

Sevinsky, Public Nuisance: A Common Law Remedy Among the Statutes, 5 Natural Resources and Environment 29 (1990).

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