Keeping pigs out of parlors: using nuisance law to affect the location of pollution.

• Author: Heimert, Andrew Jackson

1. Introduction

   American pollution laws fail to attack directly the harms created by pollution. Instead, they primarily address emission levels. The Clean Air Act (CAA)(1) and the Clean Water Act (CWA)(2) implement regimes that seek to protect the environment by limiting the volume of pollutants emitted. These laws fail to directly protect people from pollution because they concentrate on apportioning allowable amounts of pollution among various emitters but minimize their concern over locational considerations. They therefore leave environmental protection incomplete.

   Justice Sutherland described a nuisance to "be merely a right thing in the wrong place, -- like a pig in the parlor instead of the barnyard."(3) So too with pollution, which often is a necessary byproduct of many useful things. If we want to limit exposure to pigs, we would not simply limit their number and allow them to roam freely. We would instead specify numbers and locations. Pollution laws concentrate primarily on how many pigs exist and who gets to own them. They fail, however, to consider where the pigs may roam, and how many may congregate in one slop pit.

   Nearly all commentators who have addressed the issue assert that pollution laws should not preempt nuisance law. Some find justification for the preservation of nuisance law in language of the pollution statutes,(4) others believe nuisance law advances the democratic legitimacy of pollution protection,(5) and still others contend that the inadequacies of the Acts justify retaining a supplemental remedy, which nuisance law provides.(6) None, however, has justified the use of nuisance law because of the interest it vindicates. None truly considers the problems that a dual scheme of regulation (through statute and common law) presents. Finally, none offers a coherent rationale for choosing which state's nuisance law to applies in an interstate dispute. This Article tries to perform each of these tasks that other commentators have yet to complete.

   This Article begins with an explication of nuisance law. Part II describes the balancing of utilities approach originally used to adjudicate nuisances in equity, and later in law. Next, it discusses the important role that location plays in determining whether an activity constitutes a nuisance. It then proceeds to establish the propriety of damages even when the polluting activity has net social utility. Finally, it argues that the legislative approval of an activity does not necessarily protect a polluter from actions in nuisance.

   Part III describes the legislative remedy to the collective action problem inherent in deterring pollution through nuisance law. It looks first at the requirements of the CAA, which focus on emission levels from various sources as well as ambient levels of pollution in air quality regions. Part III also describes the CWA, which, like the CAA, places its primary emphasis on the amount of pollution a source discharges.

   Part IV begins with a hypothetical that illustrates the rationale for preserving nuisance remedies even when there is a statutory scheme in place: that nuisance law is uniquely capable of creating incentives for choosing location carefully. Part IV then discusses situations in which a court will commonly allow a statute to preempt common law. It also explains the important policy rationales for preservation of nuisance law, grounded mainly in the common law's ability to consider more variables in assessing the value of an activity. The Part also raises the important compensatory capability of nuisance law, a role which the statutes cannot play. It concludes that the statutes do not and should not preempt nuisance law.

   Part V expands the scope of the Article's argument to address interstate pollution. It initially traces the history of the federal common law developed by the U.S. Supreme Court to adjudicate interstate nuisance disputes. It then explains the subsequent abrogation of this law, and its replacement by the CWA and CAA. The Part proceeds to describe the Supreme Court's decision to allow only the application of the source state's nuisance law to an interstate, pollution dispute. Finally, it compares the analogous approaches taken by the circuits that have addressed this issue under the CAA.

   Part VI argues that although federal nuisance law probably was not preempted by Congress, its preservation would create the same type of discrimination inherent in any federal common law when state common law is also available. The Part then argues that Congress did not intend to preempt state common law at all, and that other cases justify its maintenance even in the interstate pollution context. It concludes by suggesting that courts, to the extent they want to advance the purpose of nuisance law as argued by this Article, should apply the downstream state's law in interstate pollution disputes.

   This Article's goal is to demonstrate that while statutes make a very important contribution to the pollution reduction, they do not address every problem. Nuisance law still capably fills interstices in the statutes. By awarding damages, nuisance law encourages sources to locate so that their harms are minimized. Because the statutes do not adequately address this aspect of pollution control, use of nuisance law does not force a reconsideration of the balance already struck, but rather leaves a finger on the scale that has historically been there.

2. The Use Of Nuisance Law To Combat Pollution

   1. A Brief History of Nuisance

      Nuisance actions to abate interferences with an owner's interest in land have existed for over eight hundred years.(7) The pre-Revolutionary body of American nuisance law accepted the oft-repeated maxim, sic utere tuo ut alienum non laedes ("one should use his own property in such a manner as not to injure that of another"(8)). This proposition rejects on its face a utilitarian balancing of the actors' conduct.(9) The standard is absolute and admits no exonerating justifications for harmful behavior.

      Although the sic utere tuo doctrine's existence continued into the nineteenth century, the Industrial Revolution threatened its continued viability.(10) Increasing industrialization forced courts to acknowledge the tension between the absolute sic utere tuo doctrine and a landowner's right to put his property to beneficial use.(11) When agriculture dominated, rarely did a use of land affect others: an owner could, with little difficulty, use her property to its full capacity without creating a nuisance.(12) Entrepreneurs who operated industrial facilities, in contrast, were inherently less able to use their property without emitting smoke and other pollutants that infringed upon the property of others. Vast expanses of open land, however, allowed greater geographic separation between uses, forestalling many direct conflicts until late in the nineteenth century.(13) When disputes did arise, granting complete primacy to a land owner to enjoin all interferences with her land directly conflicted with other land owners' rights to beneficial use of their property.(14) The shift to mechanization forced courts to reconsider their conception of property rights in order to resolve the now conflicting claims of right.(15)

      The conflict between industrial and residential uses necessitated a judicial choice between a plaintiff-centered and defendant-centered theory of nuisance. The plaintiff-centered view assumed that property holders sacrificed "a portion of their rights when they entered into society so that all could enjoy their property without unreasonable interference."(16) The question that nuisance law answered was whether the polluter was asking the plaintiff to give up more than she had "bargained" for by her participation in this putative social contract. The defendant-centered view relied on more traditional tort doctrines emphasizing reasonableness -- in this case, of use.(17) Therefore, courts chose to focus either "on the reasonableness of the harm to the plaintiff or the reasonableness of the conduct of the defendant.(18) Either option required a court to constrain the previous absoluteness of right. The resulting principle, however, remained hopelessly circular a defendant's use is reasonable if it does not unreasonably interfere with the plaintiff's use of her land.(19)

      The Restatement of Torts divided nuisances into two categories.(20) In the first category were unintentional invasions of property, which courts adjudicated according to standard rules of negligence.(21) The second category comprised invasions that are "intentional and unreasonable."(22) Courts determined "reasonableness" by comparing the social utility of the actor's conduct with the gravity of the harm the plaintiff suffered.(23) A court measured the gravity of harm by reference to the harm's extent and character, the social value of the activity being harmed, the suitability of that activity to the locality, and the plaintiffs burden of taking precautionary measures to avoid the harm.(24) Similarly, the utility of the actor's conduct was determined by reference to the locale's suitability for the use and the impracticality of preventing the harm.(25) By the early twentieth century, then, nuisance law came to incorporate two important elements: first, a general balancing of the activities' values, and second, and central to this Article's argument, a recognition of the pollution's location through a comparison of prevailing uses in the area.(26)

   2. The Elements and Application of Nuisance Law

      1. Location, Location, Location

         Location is almost everything in nuisance law. Some activities by their very nature are nuisances, so called nuisances per se.(27) The vast majority of activities are lawful in the abstract, but become nuisances per accidens "by reason of their location, or by the reason of the manner in which they are constructed, maintained, or operated".(28) Needless to say, a polluting factory is almost...