Brian Barton
Environmental pollution is a pressing issue that has gained prominence in recent times, with the world facing the harmful effects of climate change and global warming. While there are numerous international and national laws and regulations in place to curb pollution, the enforcement of these rules remains inconsistent. Common law offers a range of remedies to address environmental harm, including nuisance, trespass, negligence, and strict liability. Nuisance, which can be public or private, is the most widely used principle for environmental protection, with remedies such as damages, injunctions, or operational controls. Trespass requires an intentional physical invasion of property, while negligence involves a breach of the duty of care that causes reasonably foreseeable harm. Despite these established principles, the implementation of environmental laws has been mixed, with institutional weaknesses and inconsistent court orders hindering progress.
Common Law Remedies Available Against Pollution
| Characteristics | Values |
|---|---|
| Property Rights | Common law protects property rights, including the right to fish, and this translates to environmental protection. |
| Proof of Damages | Common law requires evidence of harm or the threat of harm and well-identified plaintiffs to obtain standing to sue. |
| Injunctions | Courts can issue temporary and permanent injunctions to control and abate pollution, as seen in the Derby case, where the borough was required to redesign its sewage system. |
| Nuisance Law | Nuisance law addresses acts or omissions that cause injury, annoyance, or danger to the public or individuals, and pollution falls under this category. |
| Statutory Authority | Common law can reject the argument that statutory authority to build something, like a sewage treatment plant, gives permission to pollute. |
| Environmental Statutes | Federal environmental statutes passed in the 1960s and 1970s gave standing to all citizens, harmed or not, to sue for environmental violations. |
| Criminal Liability | Introducing criminal liability for environmental violations could save court time and create a deterrent effect, addressing issues with inconsistent judicial implementation. |
| Safe Limits and Standards | Environmental laws set standards for emissions or discharges of pollutants and restrict areas where certain industrial operations can take place. |
| Handling of Hazardous Substances | Environmental laws regulate the handling of hazardous substances and provide procedures for accident prevention and response. |
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What You'll Learn
Common law protects property rights and environmental protection
The common-law concept of property rights, with its requirements for proof of damages and its associated rights and duties, formed the foundation for environmental protection in the United States for many decades. This concept was altered by the introduction of federal environmental statutes in the 1960s and 1970s, which gave standing to all citizens, regardless of harm. In contrast, common law requires identifiable plaintiffs and evidence of harm to obtain standing to sue.
Common law has been effective in protecting property rights, which can translate to environmental protection. For instance, in a British case, a court injunction required a borough to redesign its sewage system, protecting the right to fish and reducing water pollution. Similarly, before the Environmental Protection Agency (EPA) existed, firms knew that if they polluted neighbouring water sources, they would be held liable. As a result, water polluters installed pollution control devices to minimise liability.
Common law has also offered remedies in cases where environmental regulations have failed to act. In a case involving Southview, a farm operator in New York, neighbours sued, arguing that their common-law rights had been violated by manure runoff into a local creek. Despite the farm's exemption from Clean Water Act rules, the neighbours successfully used citizen-suit provisions of the Act to take action.
While legislative measures and administrative procedures now dominate environmental protection, common law rules and procedures remain relevant as alternate or supplementary mechanisms. Common law has demonstrated adaptability in addressing novel environmental threats and incentivising sustainable development. For example, property ownership rights can be reconceptualised under common law to include an inherent obligation to use land and resources sustainably for future generations.
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Injunctions and damages
There are several types of injunctions, including temporary restraining orders (TROs), preliminary injunctions, and permanent injunctions. TROs are short-term measures issued to preserve the status quo until a more formal hearing can be held. Preliminary injunctions are typically issued after notice and a court hearing, and they consider factors such as the likelihood of the plaintiff's success on the merits and the potential for irreparable harm to the plaintiff if the injunction is not granted. Permanent injunctions, on the other hand, are granted as part of a final judgment, and they require a higher standard of proof and consideration of equitable factors, such as the defendant's good faith and prior conduct.
Damages, on the other hand, refer to monetary compensation awarded to a plaintiff who has suffered harm due to pollution. In the context of pollution, damages can include compensation for loss of business opportunities, price erosion, loss of goodwill, and reputational damage. Damages are often sought in conjunction with injunctions to compensate for any harm suffered during the pendency of the trial or as a result of the pollution.
In some cases, courts may have to decide between granting an injunction or awarding damages. For instance, in the British case mentioned earlier, the borough requested that the court substitute damages for an injunction, as it would have been difficult for them to rebuild their sewage treatment plant. However, the court rejected this argument, noting that damages would not adequately address the angling club's right to fish.
It is important to note that the availability of common law remedies for pollution has been impacted by the introduction of federal environmental statutes. These statutes have broadened the standing to bring lawsuits, allowing any citizen to take legal action, regardless of whether they have been directly harmed by the pollution. Nonetheless, common law remedies, such as injunctions and damages, continue to play a crucial role in environmental protection, particularly in situations where there is clear and direct evidence of harm caused by pollution.
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Federal common law and interstate pollution
Federal common law and state laws have long been at the forefront of environmental protection in the United States. The common-law concept of property rights, which requires proof of damages and associated rights and duties, was the foundation for environmental protection in the country for many decades. However, this changed with the enactment of several federal environmental statutes in the 1960s and 1970s, such as the Clean Air Act (CAA) and the Clean Water Act. These statutes gave standing to all citizens, regardless of whether they were directly harmed, and provided for citizen-suit provisions.
The Clean Air Act, first enacted in 1963 and amended several times since, is the primary federal air quality law in the United States. It is administered by the Environmental Protection Agency (EPA), in coordination with state, local, and tribal governments. The Act authorizes the EPA to establish National Ambient Air Quality Standards (NAAQS) to protect public health and welfare and regulate emissions of hazardous air pollutants. The "'Good Neighbor' provision of the CAA requires upwind states to ensure that their air pollution does not affect downwind states' ability to meet the NAAQS. If a state's implementation plan is inadequate, the EPA must issue a Federal Implementation Plan (FIP). The Cross-State Air Pollution Rule (CSAPR) is one such FIP, requiring upwind states to reduce interstate pollution and ensure downwind states can meet air quality standards.
The Clean Water Act, on the other hand, addresses water pollution issues. In one case, Southview, a farm operator in New York, spread animal manure on agricultural land, leading to runoff that washed into a local creek and then into the Genesee River. While the EPA and state regulators refused to take action, citing a lack of evidence that Southview was a statutory polluter, Southview's neighbours sued, arguing that their common-law rights had been violated. This case demonstrates how common law can provide a remedy when statutory regulations fall short.
While federal common law and state laws play a crucial role in addressing pollution, the Supreme Court has ruled that federal environmental statutes, such as the Clean Air Act, take precedence in interstate pollution disputes. In one case, Oklahoma sued Arkansas for allowing polluted water to flow into Oklahoma, even though the water met EPA and Arkansas standards. The Supreme Court rejected Oklahoma's claim, affirming that Congress had granted the EPA broad jurisdiction over water quality. This highlights how federal environmental statutes and the EPA's authority have largely supplanted common-law remedies in interstate pollution disputes.
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Common law and statutory law differences
Common law and statutory law are the two main types of law within a legal system, and while they are both essential to how a legal system functions, they differ in origin and application.
Common law, also known as "case law", is uncodified and is not written out in statutes or books. It is based on precedent and relies on past judicial rulings from federal, state, or local courts to set a precedent for future legal decisions. It is created by judicial bodies such as the Fourth Circuit Court of Appeals or the Virginia Supreme Court. It is often referred to as "judge-made law" and is shaped by judges through an interpretive process. Common law is strict when there is evidence of harm and provides payment for damages to those harmed or enjoins polluters to stop their harmful actions. For instance, in the case of Southview, which operated a 1,100-acre farm in New York, common law was the primary remedy for neighbours who were harmed by water pollution.
On the other hand, statutory law is codified and written down, formally passed by a legislative body at the local, state, or federal level. It is also known as "civil law" and is much more rigid in its application. Judges apply statutory law as written, without relying on past cases to interpret it. Statutory law can be amended or repealed by lawmakers and is subject to change. It grants standing to all citizens, whether they are harmed or not, and allows for legal action based on evidence of a technical violation of a statute-based regulation. Statutory law calls for penalties and does not provide for payment for damages. For example, in a 1992 case, the Supreme Court reaffirmed that federal water-quality regulations governed, despite Oklahoma's claim that its water quality standard was being violated by Arkansas.
In conclusion, common law and statutory law serve complementary roles in the legal system, with common law focusing on precedent and interpretation, and statutory law providing a more rigid and broadly applicable set of rules.
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Common law and public nuisance
Common law is a legal framework that has been shaped by historical court rulings. It offers remedies for parties who have been harmed by pollution and provides a basis for environmental protection. While federal environmental statutes have superseded common law in many instances, common law still plays a significant role in addressing pollution and environmental concerns.
Public nuisance, as defined by common law, refers to actions or situations that interfere with the rights of the general public. It arises when an individual or entity engages in conduct that endangers the life, health, property, morals, or comfort of the public or obstructs them from exercising their common rights. A public nuisance can be considered a criminal offence and is actionable in tort.
For an act to be considered a public nuisance, it must unreasonably interfere with the rights shared by the general public. This includes situations where pollution affects public resources, such as air or water quality, and poses a risk to public health or safety. The determination of whether an action constitutes a public nuisance involves considering factors such as the length of the nuisance, the degree of unreasonableness, and the existence of any laws or regulations prohibiting the act.
In the context of pollution, common law provides remedies for public nuisance through various avenues. One approach is seeking an injunction, which requires the polluting party to take specific actions to address the nuisance. For example, a court may order a business to change its discharge practices or implement measures to reduce air or water pollution. In some cases, courts may opt for monetary damages, particularly when an injunction is not feasible or sufficient to address the harm caused by the nuisance.
It is worth noting that the availability of common law remedies for public nuisance may be influenced by federal and state environmental regulations. In certain cases, statutory provisions, such as the Clean Water Act or the Environmental Protection Act, may take precedence over common law claims. However, common law continues to provide a crucial framework for addressing pollution and protecting the rights of the public.
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Frequently asked questions
Pollution is the introduction of pollutants into the environment, causing adverse damage to the quality of land, air, or water.
Common law remedies are legal actions that can be taken to address environmental harm. Common law requires well-identified plaintiffs and evidence of damages to obtain standing to sue.
Nuisance, trespass, negligence, and strict liability are all common law remedies for environmental pollution. Nuisance, the most common principle, can be addressed through damages, injunctions, or operational controls. Trespass requires an intentional physical invasion of property, and negligence requires a duty of care and breach that causes reasonably foreseeable injury.
India has several legislative enactments to protect the environment, including the Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981; Environment (Protection) Act, 1986; and Indian Penal Code provisions for environmental damage.
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