Common Law Environmental Liability 12/7/2018 ARE 309-Common Law

What Is Common Law? A set of principles, customs and rules Of conduct Recognized, affirmed and enforced By the courts Through judicial decisions. 12/7/2018 ARE 309-Common Law

In Short…. Judge-made law from previous court cases 12/7/2018 ARE 309-Common Law

Basis of Common Law Historic usage and custom NOT legislative enactment's 12/7/2018 ARE 309-Common Law

Characteristics of Common Law Flexible & adaptable Will change over time Will differ from state to state Will differ based on the facts of the case 12/7/2018 ARE 309-Common Law

Common Law Actions Civil suits By private plaintiffs Seeking remedy For violation of a right From a defendant 12/7/2018 ARE 309-Common Law

“Torts” A common law civil wrong for which a court will provide a remedy 12/7/2018 ARE 309-Common Law

Environmental Common Law Actions Negligence Strict Liability Nuisance 12/7/2018 ARE 309-Common Law

Saving Clauses Many state and federal statutes contain express provisions recognizing common law actions Example: CWA 12/7/2018 ARE 309-Common Law

Clean Water Act “Nothing in this section shall restrict any right which any person may have under statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief” 12/7/2018 ARE 309-Common Law

Bottom Line In most private environmental disputes There are common law claims AND Statutory claims 12/7/2018 ARE 309-Common Law

Common Law Environmental Liability Negligence & Strict Liability 12/7/2018 ARE 309-Common Law

The Basic Rule of Common Law There is a generalized legal duty to avoid causing harm to others, through acts of omission, as well as of commission. 12/7/2018 ARE 309-Common Law

Elements of A Negligence Action Duty of care [reasonable man test] Breach of that duty Actual and proximate cause Damage 12/7/2018 ARE 309-Common Law

Duty of Care To exercise that degree of care That an ordinarily reasonable person would Under similar circumstances 12/7/2018 ARE 309-Common Law

“Negligence Per Se” Violation of a statute Designed to protect persons or property Is on its face a breach of duty of care 12/7/2018 ARE 309-Common Law

Example Schlitz discharges wastewater to POTW In violation of POTW’s ordinance Wastewater passes through POTW untreated Kills fish in Plaintiff’s stream 12/7/2018 ARE 309-Common Law

Elements of A Strict Liability Action Absolute duty to make safe Liability without fault Breach of that duty Actual and proximate cause Damage 12/7/2018 ARE 309-Common Law

Strict Liability In NC North Carolina recognizes common law absolute or strict liability For “ultrahazardous activities” Limited in NC to blasting and use of explosives 12/7/2018 ARE 309-Common Law

Common Law Environmental Liability Nuisance and Trespass 12/7/2018 ARE 309-Common Law

Nuisance Defined Substantial and unreasonable interference with a landowner’s use or enjoyment of property 12/7/2018 ARE 309-Common Law

Substances Held To Be Nuisances Noise Odors Dust Smoke Airborne Pollutants Water pollutants Hazardous Substances 12/7/2018 ARE 309-Common Law

Two Types of Nuisances Private Public An act that interferes with a individual landowner Example: Odors from hog farms Public An act that interferes with the health, safety, or property rights of the community Example: blocking a public highway 12/7/2018 ARE 309-Common Law

Elements of Private Nuisance Claim Substantial Interference Offensive to an average person Unreasonable Interference Injury must outweigh the utility With Plaintiff’s property Resulting in substantial injury and loss of value to plaintiff’s land 12/7/2018 ARE 309-Common Law

Unreasonable Interference Depends on the circumstances To be determined by jury Would reasonable persons generally consider it unreasonable 12/7/2018 ARE 309-Common Law

“Substantial Interference” Petty inconveniences or annoyances Not enough Would it affect an ordinarily reasonable man? 12/7/2018 ARE 309-Common Law

Remedies Two Types of Relief Abatement of the nuisance Damages 12/7/2018 ARE 309-Common Law

Remedies for Nuisance Damages Usual remedy is $$$$ to compensate for loss of use of property 12/7/2018 ARE 309-Common Law

Remedies for Nuisance Abatement ---Injunctive Relief Appropriate where nuisance can be corrected Appropriate where $$ are inadequate irreparable injury Courts have wide discretion 12/7/2018 ARE 309-Common Law

Abating a Nuisance A balancing test 12/7/2018 ARE 309-Common Law

Example Holbrook Construction builds a 350 home subdivision in Wilson Installed 54-inch pipe under public road to drain water away from the subdivision Water ran through the pipe and on to. Hines’s land Hines wants an injunction to halt drainage 12/7/2018 ARE 309-Common Law

Can You Sue Gov’t For Nuisance? General the government cannot be sued without its permission “Sovereign Immunity” May sue for nuisance on a theory of “Inverse Condemnation” 12/7/2018 ARE 309-Common Law

Statute of Limitations A time prescribed by law within which a person must file suit or lose the claim. For Nuisance actions Three (3) years 12/7/2018 ARE 309-Common Law

Possible Defenses to Nuisance Zoning or Permit allows the activity Contributory Negligence Coming to the Nuisance State of the Art 12/7/2018 ARE 309-Common Law

North Carolina’s Right-to Farm Act NCGS §106-700 & §106-701 No agricultural operation Can be a nuisance By any changed condition in or about the locality After one year of operation if it was not a nuisance when it started operation 12/7/2018 ARE 309-Common Law

Trespass Defined Intentional interference with a landowner’s exclusive possession of property 12/7/2018 ARE 309-Common Law

Elements of A Trespass Action Any Physical invasion Of the property of another With the intent to enter Invasion causes Harm (damage) 12/7/2018 ARE 309-Common Law

“Physical Invasion” In person Allowing “thing” to invade property Water Soot Gas Oil Chemicals 12/7/2018 ARE 309-Common Law

Nuisance vs Trespass Trespass Nuisance physical invasion of the land In person By tangible object [e.g. water, rocks] Nuisance interference with use or enjoyment By intangible invasion Noise Odor 12/7/2018 ARE 309-Common Law

Nuisance vs Trespass Often difficult to distinguish Generally both claims are made in an environmental dispute 12/7/2018 ARE 309-Common Law

Remedies For Trespass Damages Injunctive Relief 12/7/2018 ARE 309-Common Law

Statute of Limitations Trespass Three (3) years from date of discovery of the original invasion Each day constitutes a new invasion Damages only for losses within the three year period immediately prior to the filing of the action. 12/7/2018 ARE 309-Common Law