1. Common Law Environmental Liability
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2. What Is Common Law? A set of principles, customs and rules Of conduct
Recognized, affirmed and enforced
By the courts
Through judicial decisions.
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3. In Short…. Judge-made law from previous court cases 12/7/2018
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4. Basis of Common Law Historic usage and custom
NOT legislative enactment's
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5. 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
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6. Common Law Actions Civil suits By private plaintiffs Seeking remedy
For violation of a right
From a defendant
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7. “Torts”
A common law civil wrong for which a court will provide a remedy
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8. Environmental Common Law Actions
Negligence
Strict Liability
Nuisance
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9. Saving Clauses
Many state and federal statutes contain express provisions recognizing common law actions
Example: CWA
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10. 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”
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11. Bottom Line In most private environmental disputes
There are common law claims
AND
Statutory claims
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12. Common Law Environmental Liability
Negligence
&
Strict Liability
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13. 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.
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14. Elements of A Negligence Action
Duty of care [reasonable man test]
Breach of that duty
Actual and proximate cause
Damage
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15. Duty of Care To exercise that degree of care
That an ordinarily reasonable person would
Under similar circumstances
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16. “Negligence Per Se” Violation of a statute
Designed to protect persons or property
Is on its face a breach of duty of care
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17. Example Schlitz discharges wastewater to POTW
In violation of POTW’s ordinance
Wastewater passes through POTW untreated
Kills fish in Plaintiff’s stream
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18. Elements of A Strict Liability Action
Absolute duty to make safe
Liability without fault
Breach of that duty
Actual and proximate cause
Damage
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19. 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
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20. Common Law Environmental Liability
Nuisance and Trespass
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21. Nuisance Defined
Substantial and unreasonable interference with a landowner’s use or enjoyment of property
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22. Substances Held To Be Nuisances
Noise
Odors
Dust
Smoke
Airborne Pollutants
Water pollutants
Hazardous Substances
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23. 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
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24. 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
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25. Unreasonable Interference
Depends on the circumstances
To be determined by jury
Would reasonable persons generally consider it unreasonable
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26. “Substantial Interference”
Petty inconveniences or annoyances Not enough
Would it affect an ordinarily reasonable man?
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27. Remedies Two Types of Relief
Abatement of the nuisance
Damages
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28. Remedies for Nuisance Damages
Usual remedy is $$$$ to compensate for loss of use of property
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29. Remedies for Nuisance Abatement ---Injunctive Relief
Appropriate where nuisance can be corrected
Appropriate where $$ are inadequate
irreparable injury
Courts have wide discretion
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30. Abating a Nuisance
A balancing test
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31. 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
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32. 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”
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33. 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
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34. Possible Defenses to Nuisance
Zoning or Permit allows the activity
Contributory Negligence
Coming to the Nuisance
State of the Art
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35. North Carolina’s Right-to Farm Act
NCGS § & §
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
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36. Trespass Defined
Intentional interference with a landowner’s exclusive possession of property
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37. Elements of A Trespass Action
Any Physical invasion
Of the property of another
With the intent to enter
Invasion causes
Harm (damage)
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38. “Physical Invasion” In person Allowing “thing” to invade property
Water
Soot
Gas
Oil
Chemicals
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39. 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
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40. Nuisance vs Trespass Often difficult to distinguish
Generally both claims are made in an environmental dispute
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41. Remedies For Trespass Damages Injunctive Relief 12/7/2018
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42. 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.
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