AN ANALYSIS OF THE LAW OF NUISANCE AND ENVIRONMENTAL PROTECTION

AN ANALYSIS OF THE LAW OF NUISANCE AND ENVIRONMENTAL PROTECTION

All societies attempt to protect its citizens through laws, rules and regulations that would prevent an individual’s right or person from being violated. This violation could occur in two dimensions; first where it is criminal, it attracts the wrath and punishment of the state and where it is civil, it amounts to what in law is called a Tort. A Tort is essentially a civil wrong against a person which might not necessarily attract punishment from the state like a crime would do. A Tort however attract damages against the wrongdoer with the victim being compensated.

One major Tort or civil wrong is nuisance. Nuisance is a very old tort which seeks to protect persons or the society from acts that they would consider inimical to their peace and safety. Nuisance has been defined as:

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

The elaboration and refinement of nuisance law took place at the height of laissez-faire, roughly speaking the period between 1850 and 1900, when increased industrialization created new sources of pollution from factories, steamships and railroads that exceeded in scope and intensity over the stench whenever a farmer burnt weeds on his land. Those major and mobile pollution sources called for an immediate response because pollution shows no favorites. Air and water pollution are highly mobile and are carried by wind and tide, so that no one is immune to their adverse consequences.

The paradigmatic or typical tort was trespass, which involved the direct application of force against the person, chattels, or land of another individual. Nuisance, as defined above was the close analogy. The usual remedies against these forms of pollution was stringent as it related to both land and water. With respect to past harms, the defendant had to make good the losses caused. With respect to future harms, the first line of defense was the injunction that could be invoked for nuisances in process or for those which were imminent. Any relief prior to that time was generally disfavored on the ground that it could unduly stop productive activities that did not cause harm. The injunction, when issued, did not have to shut down the defendant’s activities entirely. Its primary objective was to stop the pollution with as little collateral dislocation to the defendant’s operations as possible.

In practice, English and American judges adopted a two-fold strategy. First, impose an injunction, subject if need be to appropriate conditions, to deal with the major threat. Then supplement the injunction with damages to “clean up” the losses that remained behind. The basic rule observes standard marginalist principles. The injunction is allowed up to the point until any dislocations on the other side become massive. Unlike the law of trespass generally, nuisance law has always tolerated low-level background interferences under a live-and-let-live principle, which recognizes the simple fact that moving to a pollution-free environment is too costly.

The most famous articulation of that live-and-let live principle is by the staunch libertarian, Baron George Bramwell, who defended the result as early as 1860 in explicit welfarist terms. He stated that low levels of pollution in high transaction costs situation should be tolerated on the ground that each party was better off with the right to inflict some low level pollution even at the cost of having to endure similar pollution himself. The theory on which this rested was that: “The public consists of all the individuals of it, and a thing is only for the public benefit when it is productive to the good of those individuals on the balance of loss and gain to all. So that if all the loss and all the gain were borne and received by one individual, he on the whole would be a gainer.”

The theory of strict liability in tort for harms to strangers holds a party responsible for the harm that it causes by way of trespass or nuisance, regardless of the level of precaution taken. But a common strand of negligence law injects some uncertainty into the situation. Then as now, there is much sentiment for the proposition that the defendant that takes some due level of care should not be held responsible for any harm that ensues and the argument is thus made that compliance with the statute constitutes good care, and thus excuses the defendant from harm. The implicit argument is that so long as the defendant has taken the optimal level of care, no further action is needed.

It is instructive to see how this system of private enforcement broke down with public nuisances, which typically involved either pollution of public waters or the blocking of public roads. In these cases, the facts of each individual case involve conduct that is a wrong under the nuisance law. But the transaction costs of getting a remedy are prohibitive relative to the costs of a private suit. So an ingenious compromise was developed as early as 1536, which illustrate the transaction from private law to environmental law. Some public body was tasked with two responsibilities. One was to remove or abate the nuisance in question. The second was to fine or otherwise punish the wrongdoer for the offense. The rules in question explicitly recognized the key role that transaction costs played in the overall analysis. Where these costs were small relative to individuated injury, then the private tort remedy survived. Those were typically cases of serious property damage or bodily injury. Where the transaction costs overwhelmed the cost of the suit, public enforcement was put into place, but only in those cases where the live-and-let-live rule was not satisfied—i.e. where the consensus was that the reciprocal harms caused exceeded the parallel benefits to all concerned.

In the typical case, the general damages were delay from blockage on a public road, where the appropriate response was public action that removed the obstacle and fined the defendant for the inconvenience caused to others. The link between compensation and deterrence which is a common feature of most private actions was broken. The role of public regulation was to enforce the common law rules on damages and injunctions where the private costs of enforcement were prohibitive. But the purpose here was to have the public law imitate and backstop the private rules of entitlement, but not to reverse them, as modern environmental statutes have done.

In Arkansas Game & Fish Commission v. United States, the United States Army Corps of Engineers authorized the upstream release of water that caused flooding of Arkansas lands that caused serious damage to the roots of downstream trees owned by the Arkansas Commission, which promptly sued for damages. The tort liability in this case for ordinary parties should be established under the rule that it is not permissible to damage the property of A in order to protect one’s own property, without compensating for the loss. But the Supreme Court rejected a clear application of that principle and remanded that case for further hearing. In the Supreme Court, the government had argued that “Whether the damage is permanent or temporary, damage to downstream property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore does not qualify as an occupation compensable under the Takings Clause.” In making that statement, the government insisted, in line with past case authority, that only an occupation of lands, not its destruction, is the source of tort liability—itself a distinction that is never applied to private defendants. The Supreme Court sidestepped that decision, and remanded the case for determination under a squishy and formless balancing test ‘the takings inquiry’ that among other things, found relevant to the takings inquiry “the degree to which the invasion is intended or is the foreseeable result of authorized government action” without ever explaining why it mattered.” The want of a clear rule can only weaken the connection between public and private law that is so essential in this area.

The most significant decision in this area, however, is probably Mildenberger v. United States. There the United States undertook an extensive project on the Okeechobee Waterway, which diluted the salt concentration, which killed off downstream oyster beds, leading to further damage of other forms of marine life, including crabs, sponges, fish, and birds. The Court rebuffed the claimant’s right of action for the damage that the government action caused to their riparian interests, when the runoff from Lake Okeechobee carried many nutrients from agricultural activity that damaged the ecosystem. The liability of any private party for that kind of conduct is beyond down, given the extensive defense of riparian rights against private nuisances, applicable in both riparian and prior appropriation principles. The common law covers cases in which pollution turns a fresh-water stream into a salt-water stream. But not when the government engages in that conduct, at which point the Federal Circuit, speaking through Judge Arthur J. Gajarsa held that riparian rights did not include the right to not have your water fouled from upstream pollution coming from above. Because plaintiffs could not show that the law recognized “their compensable interest in having the water adjacent to their properties free of pollution.” The reversal of expectations is now complete. Governments may pollute in ways that private parties may not.

At the core of nuisance is the disturbance or degradation of the environment. What then is the environment? According to B.K Sharma in his book “Technology of Truth”, the environment is defined as the life support system given to mankind by the creator. The three major elements or components of the environment are air, water and soil which in their original state were pure and undisturbed. Sadly and unfortunately though, the progress in science and technology has led to environmental degradation and an imbalance in the ecological system which if goes unchecked will in the long run be disastrous for mankind, animals and the environment as a whole. Due to human, industrial, agricultural, technological, etc. advancement, the environment has become contaminated, foul and harmful even to humans for which the environment was made.

To protect the environment from the adverse effects of pollution and environmental degradation, nations and jurisdictions around the world have enacted legislations to regulate environmental activities and therefore curb pollution and degradation. In Nigeria, the Federal Environmental Protection Agency (FEPA) was established in 1988 Cap 131 LFN 1990 by the Environmental Protection Act of 1988 and the Ministry of Environment was established in 1999. Other environmental legislations in force in Nigeria are:
1. The Harmful Waters (Special Criminal Provisions) Act
2. Oil Pipeline Act 1958
3. Mineral Oil (Safety) Regulations Act 1963
4. Petroleum Regulations Act 1967
5. Oil in Navigable Waters Act 1968
6. Exclusive Economic Zone Act 1988

Also, section 20 of the Constitution of the Federal Republic of Nigeria 1999, provides that the State is empowered to protect and improve the environment and safe guard the water, air and land, forest and wildlife of Nigeria.

In the same vein, most countries have laws and regulations that seek to regulate environmental activities in their individual jurisdictions. Some of these laws are:
A. The UK Clean Air Act of 1956
B. The US Electronic Waste Recycling Act, 2003

The European Union and United Nations have played a crucial role at the international level by patterning environmental related global policies. The Rio Declaration of 1992 affirms the will of the international community to implement and prioritize the protection of the environment. Also, the UN Conference on Environment and Development (UNCED) held in 1992 in Brazil, produced the document referred to as Agenda 21 which provides guidelines and regulations for environmental protection. The Bruntland Commissions Report of 1986 underlines the importance of environmental protection.

Under Part III of the UK Environmental Protection Act 1990 (which is similar to the provision of the Environmental Acts of most other jurisdictions), certain matters are declared to be ‘statutory nuisances’ and therefore disturb the environment. They include the following:
a. any premises in such a state as to be prejudicial to health or a nuisance
b. smoke emitted from premises so as to be prejudicial to health or a nuisance
c. fumes or gases emitted from premises so as to be prejudicial to health or a nuisance
d. any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance
e. any accumulation or deposit which is prejudicial to health or a nuisance
f. any animal kept in such a place or manner as to be prejudicial to health or a nuisance
g. noise emitted from premises so as to be prejudicial to health or a nuisance.

Relatively, few circumstances will be regarded as prejudicial to health or even the environment but nuisance encompasses and covers both public and private nuisances. Broadly, a public nuisance is any act which, without specific legal authority for it, results in an unreasonable reduction in amenity or environmental quality in a way common to several people at once. A private nuisance consists of damage arising from a substantial and unreasonable interference with another’s use of their land or some right over it but in both cases, the context requires there to be something of a public health degradation and risk in the consequences.

To constitute a statutory nuisance, the act(s) in question must present a health risk or a nuisance. Generally speaking, if something is unreasonable to an average person, a court might decide that it is a nuisance. Some common examples of statutory nuisance might include dust or smells coming from a local factory or industry, smoke caused by a neighbour who regularly burns rubbish, unreasonable noise from a barking dog or even continuous foul smells emanating from animal farms such as pigsty or poultries. Many other things could be dealt with as nuisances and aggrieved persons are adviced to seek redress from a law court or from the environmental department or ministry as the case may be.

It is often said that “we are only caretakers of the earth as the future generations are the true owners of the earth” it would be for the benefit of mankind as a whole to make environmental protection a priority. Governments around the world should therefore take up this responsibility and deal severely with persons who perpetrate evil against the earth.

Sokombaa Alolade