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Common Law Environmental Liability

Common Law Environmental Liability. What Is Common Law?. A set of principles, customs and rules Of conduct Recognized, affirmed and enforced By the courts Through judicial decisions. In Short…. Judge-made law from previous court cases. Basis of Common Law. Historic usage and custom

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Common Law Environmental Liability

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  1. Common Law Environmental Liability ARE 309-Common Law

  2. What Is Common Law? • A set of principles, customs and rules • Of conduct • Recognized, affirmed and enforced • By the courts • Through judicial decisions. ARE 309-Common Law

  3. In Short…. Judge-made law from previous court cases ARE 309-Common Law

  4. Basis of Common Law • Historic usage and custom • NOT legislative enactment's ARE 309-Common Law

  5. 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 ARE 309-Common Law

  6. Common Law Actions • Civil suits • By private plaintiffs • Seeking remedy • For violation of a right • From a defendant ARE 309-Common Law

  7. “Torts” • A common law civil wrong for which a court will provide a remedy ARE 309-Common Law

  8. Environmental Common Law Actions • Negligence • Strict Liability • Nuisance • Strict Liability ARE 309-Common Law

  9. Saving Clauses • Many state and federal statutes contain express provisions recognizing common law actions • Example: CWA ARE 309-Common Law

  10. 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” ARE 309-Common Law

  11. Bottom Line • In most private environmental disputes • There are common law claims • AND • Statutory claims ARE 309-Common Law

  12. Common Law Environmental Liability Negligence & Strict Liability ARE 309-Common Law

  13. 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. ARE 309-Common Law

  14. Elements of A Negligence Action • Duty of care [reasonable man test] • Breach of that duty • Actual and proximate cause • Damage ARE 309-Common Law

  15. Duty of Care • To exercise that degree of care • That an ordinarily reasonable person would • Under similar circumstances ARE 309-Common Law

  16. “Negligence Per Se” • Violation of a statute • Designed to protect persons or property • Is on its face a breach of duty of care ARE 309-Common Law

  17. Example • Schlitz discharges wastewater to POTW • In violation of POTW’s ordinance • Wastewater passes through POTW untreated • Kills fish in Plaintiff’s stream ARE 309-Common Law

  18. Elements of A Strict Liability Action • Absolute duty to make safe • Liability without fault • Breach of that duty • Actual and proximate cause • Damage ARE 309-Common Law

  19. 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 ARE 309-Common Law

  20. Common Law Environmental Liability Nuisance and Trespass ARE 309-Common Law

  21. NuisanceDefined Substantial and unreasonable interference with a landowner’s use or enjoyment of property ARE 309-Common Law

  22. Substances Held To Be Nuisances • Noise • Odors • Dust • Smoke • Airborne Pollutants • Water pollutants • Hazardous Substances ARE 309-Common Law

  23. 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 • Example: blocking a public highway ARE 309-Common Law

  24. 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 ARE 309-Common Law

  25. Unreasonable Interference • Depends on the circumstances • To be determined by jury • Would reasonable persons generally consider it unreasonable ARE 309-Common Law

  26. “Substantial Interference” • Petty inconveniences or annoyances Not enough • Would it affect an ordinarily reasonable man? ARE 309-Common Law

  27. RemediesTwo Types of Relief • Abatement of the nuisance • Damages ARE 309-Common Law

  28. Remedies for Nuisance • Damages • Usual remedy is $$$$ to compensate for loss of use of property ARE 309-Common Law

  29. Remedies for Nuisance • Abatement ---Injunctive Relief • Appropriate where nuisance can be corrected • Appropriate where $$ are inadequate • irreparable injury • Courts have wide discretion ARE 309-Common Law

  30. Abating a Nuisance • A balancing test ARE 309-Common Law

  31. 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 ARE 309-Common Law

  32. 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” ARE 309-Common Law

  33. 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 ARE 309-Common Law

  34. Possible Defenses to Nuisance • Zoning or Permit allows the activity • Contributory Negligence • Coming to the Nuisance • State of the Art ARE 309-Common Law

  35. 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 ARE 309-Common Law

  36. TrespassDefined Intentional interference with a landowner’s exclusive possession of property ARE 309-Common Law

  37. Elements of A Trespass Action • Any Physical invasion • Of the property of another • With the intent to enter • Invasion causes • Harm (damage) ARE 309-Common Law

  38. “Physical Invasion” • In person • Allowing “thing” to invade property • Water • Soot • Gas • Oil • Chemicals ARE 309-Common Law

  39. Nuisance vs Trespass • Trespass • physical invasion of the land • In person • By tangible object [e.g. water, rocks] • Nuisance • interference with use or enjoyment • By intangible invasion • Noise • Odor ARE 309-Common Law

  40. Nuisance vs Trespass • Often difficult to distinguish • Generally both claims are made in an environmental dispute ARE 309-Common Law

  41. Remedies For Trespass • Damages • Injunctive Relief ARE 309-Common Law

  42. Statute of LimitationsTrespass • 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. ARE 309-Common Law

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