Chapter 7-9 Public Nuisance

• Jurisdiction: United States

7-9 Public Nuisance

7-9:1 Overview

A public nuisance is an unreasonable interference with a right common to the general public. An individual or distinct class may bring a Public Nuisance Action for monetary damages only if the individual or class has suffered significant harm different in kind from that suffered by the general public. A representative of a state or political subdivision may bring a Public Nuisance Action on behalf of the general public. In this instance, recovery is limited to an injunction. Public Nuisance Actions are becoming increasingly popular methods of addressing global warming, which is allegedly caused by increased production of oil and gas. Recent case law in this area addresses numerous procedural issues. However, courts handling these cases have yet to reach final decisions on the merits.

7-9:1.1 Related Causes of Action

Private Nuisance, Trespass to Real Property, Conversion

MUST READ CASES

Comer v. Murphy Oil U.S.A., 585 F.3d 855 (5th Cir. 2009)¹⁷⁰

Comer v. Murphy Oil U.S.A., 839 F. Supp. 2d 849 (S.D. Miss. 2012), aff'd, 718 F.3d 460 (5th Cir. 2013)¹⁷¹

7-9:2 Elements

(1) An unreasonable interference by the defendant

• There must be an unreasonable interference by the defendant.¹⁷²
• Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

• Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience;¹⁷³
• Whether the conduct is proscribed by a statute, ordinance or administrative regulation;¹⁷⁴ or
• Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.¹⁷⁵

(2) With a right common to the general public

• The defendant must interfere with a right common to the general public.¹⁷⁶

7-9:3 Damages and Remedies

7-9:3.1 Special Damages

A plaintiff who successfully establishes the elements of a Public Nuisance Action and the existence of a particularized injury is entitled to monetary damages that proximately, naturally and reasonably result from the alleged injury.¹⁷⁷

• Special damages can encompass physical injury, property damage and pecuniary loss.¹⁷⁸
• Damages are the appropriate remedy if it is unreasonable to allow the defendant to engage in the conduct without paying for the harm done.¹⁷⁹

7-9:3.2 Injunction

When a representative of the state or political subdivision brings a Public Nuisance Action, the traditional remedy is an injunction.¹⁸⁰

• An injunction is the appropriate remedy if the activity itself is so unreasonable that it must be stopped.¹⁸¹

7-9:4 Defenses

7-9:4.1 Statute of Limitations

A Public Nuisance Action is governed by the two-year period of limitations.¹⁸²

The accrual of the period of limitations depends upon whether the nuisance is temporary or permanent.

• A nuisance is permanent if (a) it cannot be repaired, fixed, or restored, or (b) even though the injury can be repaired, fixed, or restored, it is substantially certain that the injury will repeatedly, continually, and regularly recur, such that future injury can be reasonably evaluated.¹⁸³

• An action for permanent damages accrues upon discovery of the first actionable injury and not on the date when the extent of the damages to the land are fully ascertainable.¹⁸⁴

• A nuisance is temporary if (a) it can be repaired, fixed, or restored, and (b) any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable, such that future injury could not be estimated with reasonable certainty.¹⁸⁵

• An action for temporary injury accrues upon each injury.¹⁸⁶

Limitations is not a defense to an action seeking to enjoin a continuing nuisance, as opposed to a suit for damages.¹⁸⁷

7-9:4.2 Standing

Federal Constitutional standing requires plaintiffs to demonstrate that:

• They have suffered an "injury in fact";¹⁸⁸

• A past causation link must lead to particularized damage without speculation as to the defendant's future actions.¹⁸⁹

• The injury is "fairly traceable" to the defendant's actions;¹⁹⁰ and

• The plaintiff must show that it is substantially probable that the challenged acts of the defendant, not of some absent third party, will cause the particularized injury of the plaintiff.
• The more indirect the chain of causation between the defendant's conduct and the plaintiff's injury, the less likely the plaintiff will be able to establish a causal link sufficient for standing.¹⁹¹
• However, the traceability requirement need not be as close as the proximate causation needed to succeed on the merits of a tort claim.¹⁹²

• The injury will "likely . . . be redressed by a favorable decision."¹⁹³

• State common-law tort claims in which plaintiffs allege that they sustained actual, concrete injury in fact to their particular lands and property can be redressed by the compensatory and punitive damages they seek for those injuries.¹⁹⁴

The test for constitutional standing in Texas requires:

• A real controversy between the parties;¹⁹⁵
• Which will be actually determined by the judicial declaration sought.¹⁹⁶

7-9:4.3 Political Question Doctrine

The political question doctrine excludes from judicial review those controversies which:

• Contain no judicially discoverable and manageable standards for resolving the issues presented;¹⁹⁷ and
• Require the court to make initial policy determinations that have been entrusted to Congress.¹⁹⁸

7-9:4.4 Preemption

A federal act preempts state common law when the language of the statute expressly or impliedly authorizes preemption.¹⁹⁹

• There is conflicting case law regarding

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