The Law of Torts and Environmental Protection
| Author | Winston Anderson |
| Pages | 145-169 |
Page 145
8. The Law of Torts and
Environmental Protection
The law of torts can be used to furt her envi-
ronmental protection. A landowner may
bring an action in trespa ss against another
party to prevent harmful environmental incursions
onto his or her property. Or actions may be brought
by others to prevent a landowner from passing
on to them the negative environmental eects of
using his or her land by, for ex ample, committing
a nuisance.
Most common law tort actions are concerned
with reconciling competing uses of property and
are thus, to that extent, consistent with a sustainable
development ethos. W here damages are awarded or
the environmental costs other wise internalized to
the actor, there is reinforcement of the “polluter
pays” principle. Where an injunction is awarded,
it could have the eect of preventing pollution or
of ensuring that certain precautionary measures
are taken. e ability of the individual to bring an
action is consistent with the notion of public par-
ticipation in environmental management.
A distinction may be drawn bet ween imple-
menting pollution control and ma naging natu-
ral resource exploitation. Pollution may easily be
the subject of tort litigation because there is gen-
erally no right to pollute. e law of torts thus
could address “air and noise pollution”, which was
identied a s one of the 14 areas for urgent reme-
dial action in the 1989 Port of Spa in Accord.1 By
contrast, the destruction of nature for economic
progress is not regarded as a “wrong” per se.2 e
1. Port of Spain Accord on the Management and Conservation
of the Caribbean Environment, First CARICOM Ministerial
Conference on the Environment, June 2, 1989, (1989). For
text, see W A, C I
I L 501 (1994).
2. For a discussion of the view that the common law of property
is more a tool for economic manipulation of resources than it is
a strategy for environmental preservation, see chapter 7 above.
law of torts may be ill equipped to deal with most
of the other 13 priority problems and issues listed
in the Port of Spain Accord dealing with resource
utilization issues, such as preser vation of genetic
resources, forest and watershed management, and
preservation of cultural and historical resources.
But there is a deeper problem with using tort
law to engineer environmental protection, and this
problem relates to courts’ reluctance to expand tra-
ditional tort law to achieve environmenta l aims.
Although acknowledging t hat protection and pres-
ervation of the environment are “now perceived
as being of crucial importance to the future of
mankind,”3 the courts have balked at the invitation
to develop the trad itional rules of tort law to bet-
ter sa feguard the environment. “On the contrary,
given that so much well-informed and well-struc-
tured legislation is being put in place for the pur-
pose, there is less need for the courts to develop a
common law principle to achieve the same end and
indeed it may well be u ndesirable that they should
do so.”4 In a similar vein, common law courts have
expressly ref used to apply the precautionary prin-
ciple in the absence of clear statutory provisions.5
is conservative approach is based on the per-
ceived function of the common law to settle dis-
putes between parties rather t han be a purposeful
mechanism to achieve public policy objectives.6
Equally import ant, the narrow anthropocentric
3. Cambridge Water Co. v. E. Counties Leather Plc. [1994] 2 A.C.
264; [1994] Env. L.R. 105 (Eng.).
4. Id.
5. R v. Sec’y of State for Trade & Industry, ex parte Duddridge,
[1995] 7 J. Env. L. 224 (H.C.); [1996] Env L. R. 325 (C.A..)
(Eng.); Fishermen & Friends of the Sea v. Envtl. Mgmt. Auth.,
CV 2148-2003, XXpage numberXX (judgment Oct. 22, 2004)
(High Ct.) (Trin. & Tobago), a’d [2005] UKPC 30-2004 (ap-
peal taken from Trin. & Tobago) (U.K.).
312, 257 N.E.2d 870 (1970).
Page 146 Principles of Caribbean Environmental Law
assumption of the common law stresses resource
ownership and wealth maximization and prefers
economic development to environmental aesthet-
ics. It thus follows that the primary function of
the law of torts is to protect interests in land and
other propert y. It may be that as a by-product of
that f unction components of the environment are
preserved or even enhanced. But the central objec-
tive is protection of the proprietary interests in the
environment, rather than protection of the envi-
ronment itself. In the absence of the adoption of
a concept such a s the U.S. public trust, there does
not seem any likelihood that this perspective will
change in the near future.
Tort Actions
e tort actions of greatest relevance to environ-
mental protection are probably those based in nui-
sance, Rylands v. Fletcher, trespass, and negligence.
ese torts, together with their relevance to the
environment, are considered in turn.
Nuisance
In modern parlance, the tort of nuisance is that
area of the common law that provides the most via-
ble mea ns for securing environmenta l protection
and preservation. e classical example of the law
of nuisance being used in the context of damage to
the environment is provided by St. Helen’s Smelt-
ing Co. v. Tipping,7 where an action was brought in
private nuisance in respect of toxic vapors exhaling
from the defendant’s copper-smelting operations
causing damage to the plainti’s trees and shrubs.
In Alcoa Minerals of Jamaica Inc. v. Broderick8 the
defendants were held liable in nuisance for damage
caused by the emission of sulfates and other cor-
rosive dusts f rom their bauxite mining plant. And
in Halsey v. Esso Petroleum Co. Ltd.9 the plainti
succeeded in nuisance against a neighboring opera-
tor of an oil-distributing depot, where it wa s held
that the nuisance included (a) noise at night caused
by tankers arriving at and leaving the depot; (b) the
“nauseating smell” esc aping from the depot; and
(c) damage caused by acidic smuts escaping from
the depot onto laundry hung out to dry.
7. St. Helen’s Smelting Co. v. Tipping, [1865] XI HL Cas 642
(Eng.).
8. Alcoa Minerals of Jam. Inc. v. Broderick J.M., 1980 CA 37;
(App. Ct. 1996) (Jam.); (2000) 56 WIR 433 (JCPC, on appeal
from C.A., Jamaica).
9. Halsey v. Esso Petroleum Co., [1961] 2 All E.R. 145 (Eng.).
ese and other cases conrm t hat an action
may be maintained in nuisance to redress activ ities
that pollute the air, contaminate the water, cause
unreasonable noise, or dump wastes on land or sea.
e truth is, however, that the genera l use of nui-
sance for environmental protection may be disap-
pointing in actual application. e reasons for this
become apparent when the requirements for estab-
lishing an action in nuisa nce are looked at closely.
ere are three dierent c ategories of nuisance:
private nuisance, public nuisance, and statutory
nuisance. Private nuisance protects a landowner
against unreasonable interference with the use or
enjoyment of his or her land. Public nuisance is a
crime that prohibits interference with public rights;
however, exceptionally, an individual may bring
an action in respect of a public nuisa nce if he or
she has suered damage over and above that suf-
fered by the public generally. A statutory nuisance
is mainly concerned with the protection of public
health and is usually controlled throug h the health
agencies of the government.
Private Nuisance
e tort of private nuisa nce was developed as a
mechanism to reconcile t he competing rights of
neighboring landowners to use their propert y as
they pleased. Here, the broader question of the pub-
lic interest arose only indirectly. e courts came to
a fundamental position: not each or every interfer-
ence with another’s proprietar y interest suces to
constitute a private nuisance. Liability would be
found only for unreasonable interference,10 and the
reasonableness of the defendant’s activity must be
balanced against its eect on the plainti’s use and
enjoyment of his or her land. In deciding where to
draw the line, the following considerations of inter-
est to environmental protection were frequently
taken into account.
Locality
e locality rule emerged when the industrial rev-
olution in Britain g ave rise to a conict between
traditional feudal agrarian land use and that of
industrial activity. e politics of the time favored
10. e requirement of being a reasonable user is said to be a major
limitation on the use of nuisance in the environmental context:
Gerry Cross, Does Only the Careless Polluter Pay? A Fresh Exami-
nation of the Nature of Private Nuisance, L. Q. R. 445
(1995).
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