The Facts: - Nc State University
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Transcript The Facts: - Nc State University
Common Law Environmental
Liability
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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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In Short….
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Judge-made law from previous court
cases
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Basis of Common Law
Historic usage and custom
NOT legislative enactment's
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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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Common Law Actions
Civil suits
By private plaintiffs
Seeking remedy
For violation of a right
From a defendant
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“Torts”
A common law civil wrong for which a
court will provide a remedy
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Environmental Common Law
Actions
Negligence
Strict Liability
Nuisance
Strict Liability
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Saving Clauses
Many state and federal statutes contain
express provisions recognizing common
law actions
Example: CWA
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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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Bottom Line
In most private environmental disputes
There are common law claims
AND
Statutory claims
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Common Law Environmental
Liability
Negligence
&
Strict Liability
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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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Elements of A Negligence Action
Duty of care [reasonable man test]
Breach of that duty
Actual and proximate cause
Damage
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Duty of Care
To exercise that degree of care
That an ordinarily reasonable person
would
Under similar circumstances
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“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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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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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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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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Common Law Environmental
Liability
Nuisance and Trespass
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Nuisance
Defined
Substantial and unreasonable
interference with a landowner’s
use or enjoyment of property
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Substances Held To Be
Nuisances
Noise
Odors
Dust
Smoke
Airborne Pollutants
Water pollutants
Hazardous Substances
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Two Types of Nuisances
Private
– 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
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Example: blocking a public highway
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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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Unreasonable Interference
Depends on the circumstances
To be determined by jury
Would reasonable persons generally
consider it unreasonable
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“Substantial Interference”
Petty inconveniences or annoyances Not
enough
Would it affect an ordinarily reasonable
man?
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Remedies
Two Types of Relief
Abatement of the nuisance
Damages
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Remedies for Nuisance
Damages
– Usual remedy is $$$$ to compensate for
loss of use of property
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Remedies for Nuisance
Abatement ---Injunctive Relief
– Appropriate where nuisance can be
corrected
– Appropriate where $$ are inadequate
irreparable injury
– Courts have wide discretion
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Abating a Nuisance
A balancing test
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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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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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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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Possible Defenses to Nuisance
Zoning or Permit allows the activity
Contributory Negligence
Coming to the Nuisance
State of the Art
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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
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Trespass
Defined
Intentional interference with a
landowner’s exclusive possession of
property
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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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“Physical Invasion”
In person
Allowing “thing” to invade property
– Water
– Soot
– Gas
– Oil
– Chemicals
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Nuisance vs Trespass
Trespass
– physical invasion of the land
In person
By tangible object [e.g. water, rocks]
Nuisance
– interference with use or enjoyment
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By intangible invasion
– Noise
– Odor
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Nuisance vs Trespass
Often difficult to distinguish
Generally both claims are made in an
environmental dispute
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Remedies For Trespass
Damages
Injunctive Relief
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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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