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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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what is common law
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

in short
In Short….

Judge-made law from previous court cases

ARE 309-Common Law

basis of common law
Basis of Common Law
  • Historic usage and custom
  • NOT legislative enactment's

ARE 309-Common Law

characteristics of common law
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

common law actions
Common Law Actions
  • Civil suits
  • By private plaintiffs
  • Seeking remedy
  • For violation of a right
  • From a defendant

ARE 309-Common Law

torts
“Torts”
  • A common law civil wrong for which a court will provide a remedy

ARE 309-Common Law

environmental common law actions
Environmental Common Law Actions
  • Negligence
  • Strict Liability
  • Nuisance
  • Strict Liability

ARE 309-Common Law

saving clauses
Saving Clauses
  • Many state and federal statutes contain express provisions recognizing common law actions
  • Example: CWA

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clean water act
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
Bottom Line
  • In most private environmental disputes
  • There are common law claims
  • AND
  • Statutory claims

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common law environmental liability1

Common Law Environmental Liability

Negligence

&

Strict Liability

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the basic rule of common law
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

elements of a negligence action
Elements of A Negligence Action
  • Duty of care [reasonable man test]
  • Breach of that duty
  • Actual and proximate cause
  • Damage

ARE 309-Common Law

duty of care
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
“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
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
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
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 liability2

Common Law Environmental Liability

Nuisance and Trespass

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nuisance defined
NuisanceDefined

Substantial and unreasonable interference with a landowner’s use or enjoyment of property

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substances held to be nuisances
Substances Held To Be Nuisances
  • Noise
  • Odors
  • Dust
  • Smoke
  • Airborne Pollutants
  • Water pollutants
  • Hazardous Substances

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two types of nuisances
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

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elements of private nuisance claim
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
Unreasonable Interference
  • Depends on the circumstances
  • To be determined by jury
  • Would reasonable persons generally consider it unreasonable

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substantial interference
“Substantial Interference”
  • Petty inconveniences or annoyances Not enough
  • Would it affect an ordinarily reasonable man?

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remedies two types of relief
RemediesTwo Types of Relief
  • Abatement of the nuisance
  • Damages

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remedies for nuisance
Remedies for Nuisance
  • Damages
    • Usual remedy is $$$$ to compensate for loss of use of property

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remedies for nuisance1
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
Abating a Nuisance
  • A balancing test

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example1
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
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
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
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
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
TrespassDefined

Intentional interference with a landowner’s exclusive possession of property

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elements of a trespass action
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
“Physical Invasion”
  • In person
  • Allowing “thing” to invade property
    • Water
    • Soot
    • Gas
    • Oil
    • Chemicals

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nuisance vs trespass
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

nuisance vs trespass1
Nuisance vs Trespass
  • Often difficult to distinguish
  • Generally both claims are made in an environmental dispute

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remedies for trespass
Remedies For Trespass
  • Damages
  • Injunctive Relief

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statute of limitations trespass
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.

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