A nuisance exists when the activities of one landowner interferes with the use and enjoyment of the property of another landowner or the community. Nuisances can be such things as bad smells, polluted air, or excessive noise. A court can issue an injunction to stop or get rid of the nuisance or can assess damages. The courts attempt to balance the social utility of the protection of a plaintiff with the social utility of the activity of the defendant. The mere fact that the plaintiff shows harm does not establish that the defendant’s conduct is a nuisance. When the community’s welfare outweighs the interest of the plaintiff, the activity of the defendant is not deemed a nuisance. For example, it has been held that smoke, fumes, and noise from public utilities and power plants were not nuisances, although they harmed the plaintiffs. The court believed that the interests of the community in the activity of the defendants outweighed the interests of the plaintiffs that were affected.
AIR POLLUTION REGULATION
The Clean Air Act of 1963 had not been a very effective Act until 1970 when some substantial amendments were adopted. This was the first legislation which had some authority for federal enforcement. The Environmental Protection Agency (EPA) was authorized to establish air quality standards and the states were required to implement these standards. These standards included such things as controlling the amount of certain substances in the air like carbon monoxide.
The 1977 Amendments to the Clean Air Act gave authority to the EPA to regulate business growth in order to achieve air quality standards. The EPA was given authority to designate nonattainment areas. These would be areas which had significant air quality problems. A new facility cannot be built in one of these areas unless the new plant has the greatest possible emission controls.
The Clean Air Act was again substantially amended in 1990. These amendments focused on such things as acid rain, smog, and chemicals that would deplete the ozone layer. Acid rain is rain that has acid in it from coal smoke. Other aspects of these amendments:
- Cities were given deadlines to meet antipollution standards.
- What constituted a source of pollution was tightened up so as to include many small businesses which had not been previously covered such as dry cleaners, paint shops and bakeries.
- Regulations on car emission control systems were tightened.
- Plants that have the potential of being major polluters now have to get operating permits from the EPA and are required to use what is called maximum achievable control technology (MACT) in their operations regarding toxic emissions. This is a standard for controlling air emissions that is stricter that the previous standards.
- This Act carries both civil and criminal penalties.
WATER POLLUTION REGULATION
The Federal Water Pollution Act of 1972 was the first meaningful and enforceable federal legislation in this area. This Act is now known as the Clean Water Act. Some highlights of this Act:
- Federal standards for discharges by factories into waterways, like rivers, are now enforced on an industry-wide basis.
- The EPA establishes a range of permissible discharge which differs depending on what kind of industry is involved. For example, the ranges for pulp mills are different than those for textile manufacturers.
- A business must obtain a permit from the EPA in order to discharge waste products into a waterway. This does not include discharges into sewer systems. Permits are difficult to obtain. The EPA may require the waste to be treated prior to release.
The Safe Drinking Water Act is a federal statute allows the EPA to establish national standards for contaminant levels in drinking water.
The Oil Pollution Act of 1990 was passed in response to huge spills like the Exxon Valdez. Pursuant to this Act, companies must either clean up the spill or pay the federal government its costs for the clean-up. This Act applies to all navigable waters up to 200 miles offshore. Those responsible for spills are liable for penalties of up to $25,000 per day or $1,000 per barrel spilled. If negligence or willful misconduct is involved, penalty is increased to $3,000 per day. Failure to report a spill can bring a $250,000 fine for an individual plus imprisonment. Corporations can be fined up to $500,000.
SOLID WASTE DISPOSAL REGULATION
The Toxic Substances Control Act of 1976 was passed by Congress in response to the dumping of chemicals by businesses. Pursuant to this Act, the EPA is authorized to control the manufacture, use, and disposal of toxic substances.
The Resource Conservation and Recovery Act of 1976 (RCRA) regulates the disposal of potentially harmful substances by requiring permits for storage or transfer of these substances. These permits tell the EPA where these substances are located.
CERCLA
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980
CERCLA authorizes the President to issue funds for the cleanup of areas that were once disposal sites for hazardous wastes. The funds are held in a trust fund often called the Superfund. If funds are expended from the trust fund to clean up a site, the company can be sued by the EPA for money to reimburse the fund. Seven hundred hazardous substances are now covered.
CERCLA is triggered when a hazardous substance has been spilled, leaked, pumped, poured, discharged, dumped, or disposed into the environment from a facility. A facility includes a building, structure, equipment, pipe, well, storage container or motor vehicle. CERCLA places liability on past and present owners and operators of a facility and transporters of a hazardous substance to a facility. To prove liability under CERCLA, a plaintiff seeking to recover clean-up costs only needs to prove that the site is a facility, that the defendant is a responsible party, that a release or threatened release of a hazardous substance has occurred, and that the release or threatened release caused the plaintiff to incur costs in response to the release or threatened release. Negligence of the plaintiff does not have to be proven.
A current property owner is liable under CERCLA, even though the owner did not contribute to the pollution. Prior owners are liable under CERCLA if they owned the site at the time of the disposal of the hazardous substance.
CERCLA does provide some defenses to a suit for cost recovery. The third party defense allows a defendant to avoid liability for releases caused solely by the act or omission of a third party unless the third party is an employee or agent of the defendant or where the act or omission occurs in connection with some sort of contractual relationship between the third party and the defendant.
Another defense is the innocent landowner defense. CERCLA was amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA). SARA defines the term contractual relationship to include a land transfer or deed unless the defendant acquired the property in question after the disposal or placement of the hazardous substance on, in, or at the facility. To take advantage of this defense, a property owner must establish either that when it acquired the property it did not know and had no reason to know that any hazardous substance had been disposed of on the land, or that it acquired the land by inheritance or bequest. To establish that he did not know or have reason to know, the landowner must show that at the time of acquisition, he made an appropriate investigation into the previous ownership and uses of the property. A relative high standard of investigation is required in commercial transactions.
ENVIRONMENTAL QUALITY REGULATION
The National Environmental Policy Act of 1969 requires federal agencies to file an environment impact statement for proposed actions that may affect the environment. The EIS is to contain:
- The proposed action’s environmental impact.
- Adverse environmental effects, if any.
- Alternative methods.
- Short term and long term effects.
- Any irreversible effects.
OTHER FEDERAL ENVIRONMENTAL REGULATIONS
Under the Federal Environmental Pesticide Control Act, the use of pesticides is controlled. Pursuant to this Act, all pesticides must be registered with the EPA before they can be shipped or distributed. They also can be classified by EPA according to their dangers.
Under the Asbestos Hazard Emergency Response Act, schools must inspect for asbestos and take containment or removal action. Asbestos is a toxic pollutant and any buyers or tenants of buildings must be informed of its presence pursuant to the Superfund Act. Employees also must be notified.
The Endangered Species Act was enacted to protect species that are in danger of extinction. The Secretary of Interior names non-marine species and the Secretary of Commerce names marine wildlife. Pursuant to this Act the habitat of endangered species cannot be disturbed.
Not only must businesses be aware of federal environmental laws, individual states have their own set of environmental laws.
ENFORCEMENT OF ENVIRONMENTAL LAWS
The Environmental Protection Agency is the main agency responsible for policing the major environmental problems of air and water pollution, solid waste disposal, toxic substance management, and noise pollution.
The Council on Environmental Quality is a part of the executive branch of the federal government and is responsible for formulating environmental policy and making recommendations to Congress.
Other agencies involved in enforcement of environmental issue include:
- The Atomic Energy Commission;
- The Federal Power Commission;
- The Department of Housing and Urban Development (HUD);
- The Department of Interior;
- The Forest Service;
- The Bureau of Land Management; and
- The Department of Commerce.
CRIMINAL SANCTIONS FOR VIOLATIONS
The Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act all have criminal and civil sanctions.
GROUP SUITS —- THE EFFECT OF ENVIRONMENTALISTS
Environmental groups can, and often do, bring law suits to enforce federal and state environmental laws. These groups often have the organizational structure and funding to handle these types of suits. Some of these groups include:
- the Sierra Club;
- the Environmental Defense Fund; and
- League of Conservation Voters.
INTERNATIONAL ENVIRONMENTAL ISSUES
By the end of 1992 the European Union (EU) had passed more than 200 environmental directives that focus on noise restrictions, protection of endangered species, energy efficiency and air and water quality. The EU created the European Environment Agency as a clearinghouse for environmental information and hope that this agency can eventually act like the EPA.
