APA with inline citation and reference.
Nuisance Versus Official Standards
-Discuss the relation between common law doctrines of private nuisance and public nuisance on the one hand, and modern legislation such as the Clean Air Act on the other. Laws such as the Clean Air Act, the Clean Water Act, and the Endangered Species Act call upon government agenciesmainly the Environmental
Protection Administration--to set uniform standards.
-Does this go further than common-law public nuisance doctrine? If so, how?
State and Local Regulation
Under many of the federal environmental
laws, the states have a substantial role to play, particularly in developing local plans to meet federal standards. But federal law permits state enforcement under statutes such as the Clean Water Act only if that enforcement equals federal standards. This point was reinforced by the 2004 Supreme Court ruling in Alaska Dept. of Environmental Conservation
v. EPA,57 in which the Court upheld an EPA order directing Alaska to withhold permits for the expansion of a zinc mine, which the state had approved. The EPA had determined the expansion would violate the Clean Air Act because it did not require the use of best available technology to limit air pollution.
In addition to their powers and obligations under federal environmental
laws, state and local governments have the right to impose various controls on citizens to protect and maintain public health, safety, and general welfare. In constitutional law, these powers are referred to as a state?s police power.
State and local governments have become increasingly aggressive in pursuing environmental
concerns, particularly with respect to carbon dioxide and other greenhouse gas emissions in light of global warming concerns. Viewing the federal government as having seriously failed in its leadership role, states and even more local governments are attempting to fill the void. To give a few examples, a consortium of northeast states is planning to hold the nation?s first auction of greenhouse gas emission permits in 200858 as part of their joint agreement to stabilize emissions at 2002?04 levels by 2015 and then reduce those levels another 10 percent by 2020. On another front, California is leading an effort that includes 16 other states to set state standards for carbon dioxide emissions from new automobiles. California has routinely been granted waivers by the EPA from the Clean Air Act to set more stringent standards than the federal standards with regard to other auto emissions, after which other states are allowed to piggyback on California?s waiver. California established state standards for carbon dioxide in 2004 and then sought a waiver from the EPA. After delaying the ruling for years, at the end of 2007 the EPA denied California?s request. California intends to go to court to contest the decision.59 In another arena, at least 22 states have set standards for utility companies on the percentage of energy that must come from renewable sources by 2020. In October 2007, Kansas became the first government in the United States to refuse a permit for a proposed coal-fired electricity generating plant on the basis of carbon dioxide emissions.60
Another joint initiative was started by Seattle?s mayor in 2005. Over 500 mayors have now joined the U.S. Mayors Climate Protection Agreement by pledging to have their cities meet the Kyoto Protocol?s standard of cutting greenhouse gas emissions by 7 percent below 1990 levels by 2012. The approaches cities are taking to accomplish this goal are quite varied; in Austin, Texas, by 2015 all new single family homes must use 60 percent less energy than today?s standards; Boulder, Colorado has imposed the first ?carbon tax? on electric bills to encourage more efficient power use and fund a switch to alternative fuels; Chicago is distributing compact fluorescent light bulbs and encouraging the creation of rooftop gardens, which can cut summer rooftop temperatures in half from as high as 160 degrees and help keep the buildings cooler; Denver plans to plant an average of 140 trees a day for the next 20 years; Fargo, North Dakota is selling methane produced at its landfill to run the boilers of a soybean processing plant; New York City has ordered the city?s 13,000 yellow cabs to go green within five years; in Portland, Oregon the water flowing through the city?s drinking system is being used to generate hydroelectricity.61 The Mayors are partnering with the American Institute of Architects to reach a goal by 2010 to halve the fossil fuels used to construct and operate both commercial and residential buildings. The energy used to heat, cool and light buildings, and in the construction phase, generates more greenhouse gas emissions than either the transportation or industrial sectors.62 [For more on the Mayors Agreement, see www.coolmayors.org]
Part Four?Common Law Remedies
Long before the federal government became actively involved in environmental
issues, courts were grappling with the problem. As early as the 1500s, city officials were ordered by a court to keep the streets clean of dung deposited by swine allowed to run loose; the air was said to be ?corrupted and infected? by this practice. Legal arguments have typically revolved around the extent of a person?s right to use and enjoy private property if such usage causes harm to a neighbor?s property or the use of public property. More recently, tort actions of negligence and strict liability have been pursued by injured individuals. Successful plaintiffs may recover monetary damages for the harm suffered or obtain an injunction to prevent similar conduct (and therefore harm) by the defendant in the future, or both.
A private nuisance is a substantial and unreasonable invasion of the private use and enjoyment of one?s land; a public nuisance is an unreasonable interference with a right common to the public. Harmful conduct may be both a public and private nuisance simultaneously; the case law distinctions between the two are often blurred. A classic nuisance dispute is a 1970 New York case, Boomer v. Atlantic Cement Co.63 Neighboring landowners sued the operator of a cement plant for injury to their properties from the plant?s dirt, smoke, and vibration. The court recognized the wrong done and ordered the operator to pay damages. In a more recent Rhode Island case, the state sued various manufacturers of lead paint, under a public nuisance theory as well as several other theories, for injuries to itself (medical costs) and to its lead-poisoned residents. The trial resulted in a hung jury.64
A trespass occurs and liability is imposed with any intentional invasion of an individual?s right to the exclusive use of his or her own property. For example, in a 1959 Oregon case, Martin v. Reynolds Metals Co., the plaintiffs successfully sued in trespass for damages caused by the operation of an aluminum reduction plant, which caused certain fluoride compounds in the form of gases and particulates to become airborne, settle on the plaintiffs? land, contaminate their forage and water, and poison their cattle.65
The elements of a negligence case have been previously discussed in. In the environmental
area, a negligence claim may be based on such occurrences as carelessly fouling a neighbor?s water, flooding another?s land, or causing damage through the emission of excessive noise, smell, or particulate matter. A claim might also be based on the failure to correct a pollution problem where the necessary technology and resources were available to do so, where the defendant owed a duty to the harmed individual. Particularly troubling cases arise where a plaintiff claims injury from a toxic substance manufactured or otherwise supplied by defendant. Plaintiffs may have significant problems establishing causation. For example, does smoking cause lung cancer? Did the use of DES by pregnant women cause birth defects? Does DES cause infertility in daughters born to mothers who took DES during their pregnancy?
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