Public Nuisance Law: Definition, Standing, and Liability in Environmental Litigation, Slides of Law

Download Public Nuisance Law: Definition, Standing, and Liability in Environmental Litigation and more Slides Law in PDF only on Docsity! Ecology Law Quarterly VOL. 2 SPRING 1972 No. 2 Public Nuisance, the Restatement (Second) of Torts, and Environmental Law John E. Bryson* Angus Macbeth* * The law of public nuisance as a tort is increasingly being used in environmental litigation. In this Article the authors review the posi- tion of the American Law Institute with respect to the tort of public nuisance as it is represented in the Tentative Drafts leading to the Re- statement (Second) of Torts. The development of the American Law Institute's position is an- alyzed by considering the various elements of public nuisance actions. The case law is evaluated to identify the trends that the Restatement (Second) emphasizes and to expose some weaknesses in the conclu- sions reached by the drafters. Finally, the use of public nuisance theories in various types of en- vironmental litigation such as water, air and noise pollution is scruti- nized and those areas identified where public nuisance law may most appropriately be used. In the last three years the American Law Institute (ALI), in its Restatement (Second) of Torts, has, for the first time, addressed itself to the tort of public nuisance.' Public nuisance has long been a quagmire * Staff Attorney, Natural Resources Defense Council; B.A. 1965, Stanford University; LL.B. 1969, Yale University; member of the California and District of Columbia Bars. ** Staff Attorney, Natural Resources Defense Council; B.A. 1964, LL.B. 1969, Yale University; member of the New York Bar. 1. RESTATEMENT (SECOND) OF TORTS ch. 40, at 2 (Tent. Draft No. 16, 1970) [hereinafter cited as Tent. Draft No. 16]. The first Restatement failed to deal ECOLOGY LAW QUARTERLY in the law,2 and the drafting of sections for the Restatement (Second) which both accurately reflect the background of the law and take account of its present movement has been difficult. In 1970 the ALI published Tentative Draft No. 161 covering public nuisance; after comments by the members of the Institute it was revised and a second version, Ten- tative Draft No. 17,4 was issued in 1971. Tentative Draft No. 17 has now received the approval of the ALI and, with minor changes proposed in Tentative Draft No. 18' this year, probably will become part of the Restatement (Second) of Torts. There are important changes between the first two ALI drafts which take account of the forward movement of the law in this area. One principal purpose of the changes was to reflect developments in environmental law. 6 This Article analyzes the ALI position and dis- cusses the direction in which the law of public nuisance should move. The discussion falls naturally into three sections: the definition of the tort of public nuisance; the question of who has the right to recover for, or standing to sue in, public nuisance; and the circumstances governing the imposition of liability and the award of relief against those committing public nuisances. In conclusion, the Article dis- cusses the significance for environmental lawyers of a liberalized law of public nuisance. I THE DEFINITION OF PUBLIC NUISANCE A. Tentative Draft No. 16 Tentative Draft No. 16 took an historical approach to the defini- tion of public nuisance, proposing a simple and clear definition: "A public nuisance is a criminal interference with a right common to all members of the public."' 7 Members of the ALI Council were not en- tirely satisfied with the definition and the focal point of the dissatisfac- with public nuisance because of confusion in the areas of the law to be covered by the various groups developing the Restatement. "Nuisance" was assigned to the property drafting group which included only one expert on torts. Not surprisingly, the drafters concentrated on private nuisance which involves the invasion of rights in land. When the chapter on nuisance was transferred to the Restatement of Torts, public nuisance, involving the invasion of rights which one possesses as a member of the public, was omitted. 2. W. PROSSER, THE LAw OF TORTS § 88 (4th ed. 1971). 3. Tent. Draft No. 16, supra note 1. 4. RESTATEMENT (SECOND) OF TORTS (Tent. Draft No. 17, 1971) [hereinafter cited as Tent. Draft No. 17]. 5. RESTATEMENT (SECOND) OF ToRTs (Tent. Draft No. 18, 1972) [hereinafter cited as Tent. Draft No. 181. 6. Tent. Draft No. 17, supra note 4, §§ 821B & 821C, notes to Institute. 7. Tent. Draft No. 16, supra note 1, § 821B. [Vol. 2:241 1972] PUBLIC NUISANCE AND THE RESTATEMENT 245 test: whether the element of criminality in the definition of public nui- sance was the deciding factor in whether or not a tort action would lie. This is the case of Kernan v. Gulf Oil Corp.6 Kernan was a suit for damages for wrongful death involving a fire on a tug which killed two crew members. The plaintiff main- tained that the defendant had committed a public nuisance in permit- ting the escape of gas into the river. Although the theory was initially barred because it was not raised at the trial, the court went further, saying that a public nuisance is a crime and citing 66 C.J.S., Nuisances § 2. It pointed out that crimes have an element of intent, citing 22 C.J.S. Criminal Law § 30. The court found that in the case at bar the escape of gas was accidental and involuntary. 7 Having no element of intent, the act complained of was not a crime, and therefore not a tortious public nuisance. No recovery could be allowed.' By relying on the requirement of a criminal element in public nuisance, the court in Kernan did destructive violence to the tort law of public nuisance. Cases have long held that liability for nuisance may be based on negligence as well as intent, and in a number of cases there is strict liability. 9 Tentative Draft No 16 itself makes clear that the definition of public nuisance has not been read to require that all the elements of criminal liability be present before a defendant is liable in tort.20 In light of the unanalytic quality of statements supporting the in- clusion of a criminal element in the definition of public nuisance, what reason is there to yoke the tort of public nuisance to criminal activity? What effect does such a fusion have on public nuisance tort law? The classic justification for binding the tort of public or common nuisance to a criminal offense is found in Blackstone: [C]ommon nuisances are such inconvenient offenses as annoy the whole community in general, and not merely some particular per- son and therefore are indictable only, and not actionable, as it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow-subjects. 2' 16. 231 F. Supp. 339 (E.D. Pa.), alf'd, 341 F.2d 920 (3d Cir. 1964). 17. 231 F. Supp. at 345. 18. Id. 19. Beckwith v. Town of Stratford, 129 Conn. 506, 29 A.2d 775 (1942); Denny v. Garavaglia, 333 Mich. 317, 52 N.W.2d 521 (1952); McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391 (1928) (per Cardozo, C.J.). See also HARPER & JAMES, supra note 12, § 1.23; Prosser, Private Action for Public Nuisance, 52 VA. L. REv. 997, 1003 (1966). 20. Tent. Draft No. 16, supra note 1, § 821B, comment e. 21. 4 W. BLACKSTONE, COMMENTARIES * 167. ECOLOGY LAW QUARTERLY This language is repeatedly used in the cases. 22 The requirements for standing to sue and the mechanism of class actions provide two devices by which courts may discourage an unrea- sonable multiplicity of suits. 23 There is no longer any need to add a notion of criminality to what is essentially a tort action in order to pro- duce a rational judicial procedure. The major historical explanation for including the criminal element in the definition of the tort of public nuisance is no longer relevant or compelling. Furthermore, the broad dicta of the cases and the treatises hide other historical developments which have gradually moved tortious public nuisance out of the realm of the criminal law. The growing reliance on the use of injunctions in public nuisances cases24 is an ob- vious example of the increasing separation between the crime and the tort of public nuisance. Equity's power to restrain a public nuisance has been consistently upheld.25 The standard of proof in the tort causes has been a pre- ponderance of the evidence rather than beyond a reasonable doubt.2" In tort actions and even in some criminal actions for public nuisance it has not always been necessary to show criminal intent.27 All of these characteristics distinguish public nuisance torts from criminal acts. Two other historical developments also deserve attention. The first has been the increase in the number and types of crimes explicitly defined by state statutes. Most states now have specific statutes covering causes which 150 years ago might have been swept under the heading of criminal public nuisances. 28 One result of this specifi- 22. See, e.g., State v. Everhardt, 203 N.C. 610, 617, 166 S.E. 738, 742 (1932); State v. Turner, 198 S.C. 487, 496, 18 S.E.2d 372, 375 (1942). In White v. Town of Culpeper, 172 Va. 630, 1 S.E.2d 269 (1939) the court uses Blackstone's language but not exactly as quoted in the text here. 23. See part II infra. 24. A quick and inconclusive demonstration of this broad development can be made by comparing the relative space devoted to equitable and criminal remedies in 37 AMERICAN DIGEST 1658-1896 (Century ed. West 1903) and 24 SEVENTH DECENNIAL DIGEST 1956-1966 (West 1968). In the early volume slightly more space was de- voted to criminal than to equitable remedies; in the later volume criminal remedies are given approximately one-eleventh of the space occupied by equitable remedies. 25. Try-Me Bottling Co. v. State, 235 Ala. 207, 178 So. 231 (1938); State ex rel. Williams v. Karston, 208 Ark. 703, 187 S.W.2d 327 (1945); Weis v. Superior Court, 30 Cal. App. 730, 159 P. 464 (2d Dist. 1916); Commonwealth v. McGovern, 116 Ky. 212, 75 S.W. 261 (1903); State ex rel. Att'y Gen. v. Canty, 207 Mo. 439, 105 S.W. 1078 (1907). 26. Lawson v. State, 226 Ark. 170, 228 S.W.2d 585 (1956). 27. "The necessity of intent in public prosecutions for nuisance depends on the nature of the case." 66 C.J.S. Nuisances § 10 (1950); see also cases and materials cited note 19 supra. 28. E.g., CAL. PENAL CODE, § 311.6 (public obscenity), §§ 314-318.6 (indecent ex- posure and disorderly houses), §§ 330-337s (gaming), § 374e (littering bodies of wa- [Vol. 2:241 19721 PUBLIC NUISANCE AND THE RESTATEMENT 247 cation of criminal statutes is that the legal concept of public nui- sance has lost some of its adaptability as a criminal charge. Its flexibility as a tort concept has remained and so there has been a slowly growing division between the criminal and tort aspects of pub- lic nuisance. The result has been to leave damages and injunctions as the primary remedies for what are now termed public nuisances, while the grounds for many criminal prosecutions have been set out in cate- gories separate from public nuisance.29 Second, the criminal actions for public nuisance that remain are themselves changing and losing much of their criminal character. This development is discussed in the Practice Commentary to the criminal nuisance section in New York's Penal Code: Subdivision 1 of the revised section deals with the . . . cate- gory formerly covered by a provision penalizing one who "annoys, injures or endangers the comfort, repose, health or safety of any con- siderable number of persons" (§ 1530[1]). One difficulty with this offense has been that, frequently entailing fine questions concerning the relative rights of plant operators or business people on the one hand and residents of the vicinity on the other, prosecutions therefore have been boiled down to issues having a distinctly civil flavor.30 This is undoubtedly an accurate commentary. From this history it can be argued that public nuisance is an ac- tion which never developed many typically criminal characteristics and is now growing away from its broad criminal sources toward, on the one hand, increasingly specific definition as a criminal offense and, on the other, toward a broad cause of action in tort which has fewer criminal aspects. This is not an unusual evolutionary development in tort law. Products liability is an obvious parallel example. The arche- typal area in products liability is the sale of food and drink, an area originally covered by criminal statutes but one in which tort remedies have come to be overwhelmingly predominant.8' The development of the products liability doctrine is significant for that of tortious public ter), § 412-414a (boxing), § 415 (noise, public disorder) (West 1970); N.Y. PENAL LAW H9 225.00-225.40 (gambling houses), § 230.00-230.40 (prostitution offenses), § 235.00-235.30 (obscenity and related offenses), § 240.00-240.50 (offenses against the public order, including criminal public nuisance), §§ 265.00-265.35 (firearms and other dangerous weapons), §§ 270.00-270.15 (other offenses relating to the public safety) (McKinney 1967). 29. Borough of Verona v. Shalit, 92 N.J. Super. 65, 222 A.2d 145 (1966), aff'd on other grounds, 96 N.J. Super. 9, 232 A.2d 431 (1969); see City of Milwaukee v. Milbrew, Inc., 240 Wis. 527, 3 N.W.2d 386 (1942). This may serve as an effective goad to the State's Attorney to move on the civil side rather than on the criminal side. 30. DENZER & MCQUILLAN, PRACTICE COMMENTARY ON N.Y. PENAL LAW § 240.45 (McKinney 1967). 31. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer) 69 YALE L.J. 1099, 1103 (1960). ECOLOGY LAW QUARTERLY ment (Second) clarifies what the cases have failed to state explicitly: the tort of public nuisance may be employed to protect from invasion those rights which we hold in common as members of the public and is, despite its tortured history, clearly distinguished from criminal law concepts. II STANDING IN PUBLIC NUISANCE ACTIONS The traditional rule is that public nuisance actions may be brought by private citizens only when they have suffered "particular dam- age."' 38 The particular damage39 required is an injury different in kind from that suffered by other affected members of the public.40 Where an entire community is injured in the same manner by the nui- sance, public officials have been held to be the only proper parties to seek redress. "Anything which annoys or disturbs one in the free use, possession, or enjoy- ment of his property, or which renders its ordinary use or occupation physi- cally uncomfortable, is a 'nuisance' and may be restrained." [Citations omitted]. No doubt the instant litigation is representative of an entire assault by the people of this nation in response to the "crimes against the environment" which have been perpetrated by the users of our amassed technologies. Recognition of the public's right to pure air, soil, and water has been forth- coming from a vast segment of the governmental agencies entrusted to protect these interests for our country's people ... Id. (footnotes omitted). The second case is Department of Health and Mental Hygiene v. Galaxy Chemical Co., Inc., Civil No. 243-4 (Md. Cir. Ct., decided Sept. 17, 1970) 1 ERC 1660. Here plaintiff, the Air Quality Control Division of the Department of Health, sought to en- join defendant from emitting gas, vapors and odors beyond its property lines. In modi- fied form, the injunction was granted. This is a classic public nuisance action. The court dealt with the notion of nuisance in the following manner: The legal definition of a nuisance is anything that unlawfully annoys or does damage to another, and it includes everything that endangers Ffe or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property. Traditionally, it is a thing or condition on the premises or adjacent thereto, offensive or harmful to those who are off the premises. I ERC at 1668. 38. This notion has been alternately expressed in the definition of the tort or as a special rule of standing for the tort. Although Prosser has expressed it in the defini- tion, i.e., a certain action is a tort as to an individual only when it imposes particular damage on that individual [W. PROSSER, supra note 2, § 88], the rule appears to derive from traditional standing considerations such as multiplicity of suits and lack of suffi- cient damage to impart concrete adversity. Moreover, expressing the limitation in the definition of the tort has the awkward consequence of making a certain activity a public nuisance if a public official files against it but not a public nuisance if a citizen sues. The more straight-forward conceptual approach is to view the particular damage rule as a standing limitation. This is the approach taken by Tent. Draft No. 17, supra note 4, § 821C. 39. "Particular damage" is often referred to in the cases as "special damage." The concepts are the same. 40. HARPER & JAMES, supra note 12, § 1.23; W. PROSSER, supra note 2, § 88. 250 [Vol. 2:241 1972] PUBLIC NUISANCE AND THE RESTATEMENT 251 While the course of the law generally has been away from the vesting of exclusive authority to sue in public officials and from other restrictive rules of standing, the tort of public nuisance has, until re- cently, been untouched by these trends. This relative neglect may be understood, in part, as a consequence of a general lack of concern for rights which the public holds in common.4 In the last ten years, how- ever, the principal reason for the neglect is that plaintiffs have been deterred by the restrictive standing rule. Few public nuisance suits have been brought by private citizens and, as a consequence, the par- ticular damage rule has had little opportunity for re-examination in the courts. There are, however, signs of change. A few recent decisions have departed from the old rule, and in the most recent revision of the Re- statement (Second) of Torts, the ALI has moved toward bringing stand- ing for public nuisance injunction proceedings into conformity with the general law of standing.42 A. The Particular Damage Rule of Tentative Draft No. 16 At its worst, the particular damage rule has been interpreted to deny standing to private plaintiffs whenever a nuisance affected a whole community on the theory that since many persons were affected, none had suffered unique injury.4" In addition, the requisite injury was traditionally found only in cases of monetary or physical damage.44 Even where clear economic injury exists, courts have sometimes found the injury not to be different in kind from that suffered by the public in general. Thus, in Kuehn v. City of Milwaukee,45 a professional fisherman sued to enjoin the dumping of garbage into Lake Michigan. The court, however, denied standing on the ground that the plaintiff was asserting a public right with respect to which he was not uniquely injured-anyone could fish in the lake.4 6 Section 821C of Tentative Draft No. 16, did little to discredit these rulings and set out the particular damage rule in its harshest form: 41. J. SAX, DEFENDING THE ENVIRONMENT 59 (1970). 42. Tent. Draft No. 17 supra note 4, § 821C; see text accompanying note 75 inf ra. 43. Willard v. City of Cambridge, 3 Allen (85 Mass.) 574 (1862) (closing of a drawbridge affects commerce of area); Swanson v. Mississippi & Rum River Boom Co., 42 Minn. 532, 44 N.W. 986 (1890) (the blocking of a river forces town to import its coal and supplies by a more expensive route); Bouquet v. Hackensack Water Co., 90 N.J.L. 203, 101 A. 379 (1917) (a navigable stream's being made less pleasant for water sports not an injury peculiar to riparian owner). 44. Prosser, supra note 19, at 1011-16. 45. 83 Wis. 583, 53 N.W. 912 (1892). 46. Contra, Columbia River Fishermen's Protective Union v. City of Saint Helens, 160 Ore. 654, 87 P.2d 195 (1939). ECOLOGY LAW QUARTERLY For a public nuisance there is liability in tort only to those who have suffered harm of a kind different from that suffered by other mem- bers of the public exercising the public right.47 Relying largely on late nineteenth and early twentieth century cases, the section rejected the position of some commentators4 8 that an in- jury of greater severity, albeit of the same kind, was sufficient to secure standing. The comments, however, did note that physical and mone- tary damage would generally be seen as "different in kind." 9 Un- fortunately, no guidance was provided as to when such damage is dif- ferent in kind and when not.50 Although ameliorating some of the worst consequences of the par- ticular damage rule, section 821, thus formulated, remained a bar- rier to justice. Persons who are injured or threatened with sub- stantial injury should be able to seek redress in the courts. Experience has shown that public officials, because of inertia, lack of resources, political pressures, or vested interests in the nuisance, cannot always be relied on to seek redress for a community.51 An injured person should not be denied access to court simply because others in the community are injured in the same way he is. Moreover, although actual, physical injury would normally ground standing,5" the courts should be open to persons before they incur seri- ous physical harm. The law should afford a means to challenge threatened harm. Take a community where, due to extreme air pollu- tion, the incidence of low-level respiratory difficulties is widespread among the citizens. Illustration 12 of the Restatement (Second) com- ments suggested, by analogy, that a person with a persistent cough and frequent lung congestions could not sue the polluter for abatement of the public nuisance.5 3 The only recourse would evidently be to wait for ac- 47. Tent. Draft No. 16, supra note 1, § 821C. 48. Smith, Private Action for Obstruction of Public Right to Passage, 15 COL. L. REV. 1, 15-23 (1915); J. FLEMING, TORTS 367-69 (3d ed. 1965). 49. Tent. Draft No. 16, supra note 1, comments d at 34 and h at 38. 50. These comments regrettably were not changed in the revised draft. Tent. Draft No. 17, supra note 4, comments d at 15 and h at 17. 51. The value of citizen suits to supplement efforts of public officials has been explicitly recognized by the President's Council on Environmental Quality. "Private litigation before courts and administrative agencies has been and will continue to be an important environmental protection technique supplementing and reinforcing govern- ment environmental protection programs." Council on Environmental Quality, Reso- lution of Legal Advisory Committee, reprinted at 1 ENV. RPT.-CuRR. DEV. 746 (1971). 52. Tent. Draft No. 16, supra note 1, § 821C, comment d at 29. 53. In that illustration a bridge is destroyed causing economic loss to an entire community. Even a person who suffers four times as much economic damage as the others in the community is said to be barred from suit by section 821C. Cf. Apple- baum v. St. Louis County, 451 S.W.2d 107, 1 ERC 1125 (Mo. 1970) (nuisance suit charging that incinerator will produce dirt, smoke, noise, odors denied injunction). "[Miere apprehension of future damage or injury cannot be the basis for issuance of [Vol. 2:241 1972] PUBLIC NUISANCE AND THE RESTATEMENT 255 fendant. Class litigation would often be the appropriate procedural device for citizen action against a public nuisance since, by definition, the tort affects a class and, by pooling its resources, the class might better be able to finance the suit. Even if plaintiffs do not bring a class action, defendants may ask to have the suit so designated.65 Class actions provide for an examination of whether the plaintiff is a proper and adequate representative of the class, 6 and in most jurisdictions, a class action may not be settled without court approval. 67 Both these provisions safeguard against strike suits where the interest is a lucrative settlement for the nuisance value of the suit. Finally, the resolution of a class suit is binding on the entire community; no member of the class may thereafter bring a separate action. 68 In the recent Sierra Club v. Morton decision,69 the Supreme Court discussed the "representative of the public" cases and stated that plain- tiffs who act as private attorneys general must themselves have been injured. 70 Although this raises some question as to the vitality of cer- tain environmental standing decisions, it presents no problems for pub- lic nuisance where the citizen-plaintiff will have been injured by the nuisance. In fact, the decision affirms that parties adversely affected may properly represent the public. In one respect denying citizens the right to sue the perpetrator of a public nuisance might generate duplicative litigation. The only legal resort to the denied citizen would be a citizen mandamus action 71 against a public official to force the official to sue for relief from the nuisance. It is this sort of wasteful circumvention that modem pro- cedural reforms have sought to eliminate from the old common law forms of action. B. Tentative Draft No. 17 In 1971, the Reporter proposed and the Institute adopted a re- vision of the public nuisance standing rule which, though aspects of it may be criticized, is a substantial step toward liberalization. Although the old rule is retained for damage actions, section 821C(2) now pro- vides: In order to maintain a proceeding to enjoin or abate a public nuisance, one must 65. See, e.g., Sierra Club v. Hardin, 325 F. Supp. 99, 104, 2 ERC 1385, 1387 (D. Alas. 1971). 66. See, e.g., FED. R. Civ. P. 23(a)(4). 67. See, e.g., id. 23(e). 68. See, e.g., id. 23(c)(3). 69. 405 U.S. 727, 3 ERC 2039 (1972). 70. Id. at 738, 3 ERC at 2043. 71. L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 470-71 (1965); Jaffe, The Citizen as Litigant in Public Actions, 116 U. PA. L. Rev. 1033 (1968). ECOLOGY LAW QUARTERLY (C) Have standing to sue as a representative of the general public, or as a citizen in a citizen's action, or as a member of a class in a class action. 72 Comments accompanying the section provide some background on the revision. The former rule immunizing from private suit defendants who managed to injure alike all in the community was regarded as too restrictive and the revision was intended to "afford opportunity for de- velopment in the area of environmental protection."7 " In addition, the Institute was influenced by developments in related fields of the law: "[s]tatutes allowing citizens' actions or authorizing an individ- ual to represent the public and extensive general developments regard- ing class actions and standing to sue are all pertinent."74 More precise guidelines as to the meaning of the new section, however, are not pro- vided for the reasons that standing is a procedural matter not fully ap- propriate to a restatement of the substantive law of torts, and, with the law of standing in flux, the ALI does not wish to impose a categoric rule which would restrict developments. The single most important aspect of this change is that standing for public nuisance is linked with the general law of standing. This is a persuasive position-no sound reason exists for treating public nui- sance standing as distinct from standing elsewhere in the law. In fact, it appears that when private actions for public nuisance were first al- lowed in the sixteenth century, the court simply adopted the then- prevailing rules regarding standing.75 But while standing evolved else- where in the law, the courts, in the few private actions for public nui- sance brought before them, adopted without analysis the old formula. Now, the ALI has put its authority behind bringing the law of public nuisance, at least as to injunctive actions, into harmony with the general body of procedural law. The three specific situations in which the Restatement (Second) indi- cates that standing for injunctions may be appropriate are also significant. 1. Representatives of the General Public Although the courts do not seem yet to have gone this far,76 it is persuasive that private citizens in public nuisance actions should be able to sue as representatives of the general public. Increasingly, 72. Tent. Draft No. 17, supra note 4, § 821C(2). 73. Id. § 821 C, note to the Institute. 74. Id. comment i at 18. 75. Y.B. 27 Hen. VIII, Mich. pl. 10 (1536). 76. But see New Mexico ex rel. Norvell v. Arizona Public Service Co., Civil No. 17994 (San Juan Cty. Dist. Ct., N.M., decided Jan. 5, 1972), 3 ERC 1617, where the lead plaintiff in the suit against the Four Corners Power Plant appears to be the Sierra Club. 256 [Vol. 2:241 19721 PUBLIC NUISANCE AND THE RESTATEMENT 257 courts and legislatures are recognizing the utility of the plaintiff who acts as "private attorney general. ' 77 The Legal Advisory Committee to the President's Council on Environmental Quality has praised the private environmental suit as an important adjunct to public enforce- ment of environmental legislation. 78 A number of states have pro- vided that "any person" may sue to enjoin unreasonable harm to the environment,79 and Congress in the Clean Air Amendments of 197080 provides that any citizen may sue to enforce duties or standards imposed under the Clean Air Act. In determining whether persons adversely affected may bring pub- lic nuisance actions as representatives of the public, courts may be guided by the principles enunciated, in an FCC license renewal chal- lenge case, by Chief Justice (then Judge) Burger: The theory that the Commission can always effectively represent the listener interests in a renewal proceeding without the aid and partici- pation of legitimate listener representatives fulfilling the role of pri- vate attorneys general is one of these assumptions we collectively try to work with so long as they are reasonably adequate. When it be- comes clear, as it does to us now, that it is no longer a valid assumption which stands up under the realities of actual experience, neither we nor the Commission can continue to rely on it. The gradual expan- sion and evolution of concepts of standing in administrative law at- tests that experience rather than logic or fixed rules has been ac- cepted as the guide. 81 Since pollution in some form is the typical contemporary public nuisance, the many recent cases in which courts have granted conser- vation organizations standing to challenge environmental degradation are particularly relevant to the interpretation of sections 821C(2). The concept that the environmental groups will act as representatives of the public interest is at the heart of these decisions. The landmark 77. Compare Associated Industries v. Ickes, 134 F.2d 694, 700 (2d Cir., 1943) with Sierra Club v. Morton, 405 U.S. 727, 3 ERC 2039 (1972) where the Supreme Court discusses the "representative of the public" or "private attorney general" concept of standing and states that the plaintiff who represents the public must himself have suffered some injury economic or otherwise. Id. at 736-38, 3 ERC at 2042-43. 78. Letter from CEQ Chairman Russell E. Train to IRS Commissioner Randolph Thrower, Sept. 30, 1970, reprinted at I ENv. RPT.--Cua. DEv. 745 (1971); see note 51 supra. 79. See, e.g., MICH. CoMp. LAws ANN. §§ 691.1201-07 (Supp. 1972). See also note 185 infra. 80. Clean Air Amendments of 1970, 42 U.S.C. §§ 1857-58a (1970), amending 42 U.S.C. § 1857-571 (1967). 81. Office of Communication of United Church of Christ v. FCC, 359 F.2d 994, 1003-04 (D.C. Cir. 1966). In Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 869 (D.C. Cir. 1970), the court of appeals stated that "we think it time that such doubts [as to standing] were resolved in favor of hearing cases in which the public interest demands a hearing on the merits." ECOLOGY LAW QUARTERLY The revised section 821C of the Restatement (Second), then, offers substantial opportunity for citizens to employ public nuisance actions to seek redress for wrongs to the public. Since a multiplicity of suits is not a problem in injunction proceedings, limiting the relaxation of standing requirements to injunction cases has some logic in the dubious rationale of the particular damage rule. In any event, the great ma- jority of public nuisance cases ask for injunctive relief. Damages are often difficult to recover in such actions because it is hard to measure the injury and because courts may require plaintiffs to prove the ex- tent of injury caused by a particular defendant among many polluters.93 In addition, there is some fear that the possibility of damage awards may encourage frivolous suits. The retention of the particular damage rule for suits to recover damages may nevertheless be criticized. 94 The concept that parties might have standing to sue for an injunction but not for damages is unknown to the common law or to any of the recent cases, Supreme Court or otherwise, dealing with the law of standing. Nor is there any sound reason for denying compensation to persons injured by the ac- tivity of another simply because others are similarly injured. Likewise, there is no good reason for exempting polluters whose operations, be- cause of their social significance, will not be enjoined95 from having to pay for the external costs of their activities. 96 Rather than accept- ing the Restatement distinction between injunction and damage ac- tions, courts would do better to look to the general law of standing and make their decisions as to the appropriateness of damage awards on a case-by-case basis. C. The Case Law While the Restatement (Second) leaves room for development in the case law, the courts in the few private actions for public nuisance brought in the last several years have likewise moved in the direction of liberali- zation. In Karpisek v. Cather & Sons Construction, Inc.,97 the court, in a nuisance action against emissions from an asphalt plant, rejected the argument that the action could not be maintained because of the number of parties affected. The court relied on the proximity of plain- 93. See Note, 45 N.Y.U. L. REV. 919 (1970). 94. The authors submitted a memorandum to the Reporter criticizing the in- junction-damage distinction. The memorandum recommended that section 821C be dropped altogether and that standing be treated instead in a Comment to section 821C which disapproved the particular damage rule, noted that representative actions might be appropriate, and left standing to developments in the law of procedure. 95. See text accompanying notes 155-56 infra. 96. See text accompanying note 160 infra. 97. 174 Neb. 234, 117 N.W.2d 322 (1962). [Vol. 2:241 1972] PUBLIC NUISANCE AND THE RESTATEMENT 261 tiffs to the asphalt plant to distinguish their injury from others, observ- ing that: "If the holding urged were the rule, any nuisance affecting more than a small part of a community would have to be borne without injunctive remedy on behalf of those materially injured unless the pub- lic authorities act.""8 Likewise, Wade v. Campbell" indicates that proximity alone to the source of the nuisance may constitute sufficient damage on which to base standing.' ° In a separate development, a New York court has upheld stand- ing where the plaintiff had not actually proved special injury but was particularly threatened by the nuisance challenged. The plaintiff in Stock v. Ronan,101 a man with a diseased lung, was allowed to main- tain a public nuisance suit against the exhaust from idling motors in a bus terminal. The greater willingness of the courts to hear claims of unreasona- ble interference with the rights of others may also be seen in private nuisance actions. Deterred by the several snares of public nuisance law, plaintiffs whenever possible have sought to fit their actions within the rubric of private nuisance. Private nuisances are nuisances which unreasonably harm persons in the use and enjoyment of their property. While at one time courts were inclined to count the number of parties affected by a nuisance, and, where a considerable number were af- fected, to deny the action on the grounds that the nuisance was pub- lic, 0 2 there is now a much greater receptivity to private nuisance ac- tions brought by a whole group of plaintiffs. Thus, in Ozark Poultry v. Gorman,'0 3 nine homeowners in the vicinity of a rendering plant sought injunctive relief contending that the odors from the plant were so offensive that the plaintiffs and others in the area were often unable to sleep or eat without nausea. The chancellor found the plant to be a public nuisance and ordered it closed unless the conditions were corrected within a reasonable fixed time.' On appeal, the defendant argued that plaintiffs had not been specially damaged and therefore lacked standing. The Supreme Court of Arkansas affirmed, finding that the plant was, in addition, a private nuisance, which plaintiffs as affected property owners could properly challenge. 98. Id. at 241, 117 N.W.2d at 326-27. 99. 200 Cal. App. 2d 54, 60, 19 Cal. Rptr. 173, 176 (5th Dist. 1962). 100. See also Strickland v. Lambert, 268 Ala. 580, 109 So. 2d 664 (1959) (flies and odors from poultry plant). 101. 63 Misc. 2d 735, 313 N.Y.S.2d 508 (Sup. Ct. 1970). 102. See, e.g., People v. Rubenfeld, 254 N.Y. 245, 247, 172 N.E. 485, 486 (1930); Gibbons v. Hoffman, 203 Misc. 26, 28, 115 N.Y.S.2d 632, 634 (Sup. Ct. 1952). 103. 472 S.W.2d 714, 3 ERC 1545 (Ark. 1971). 104. Id. at 716, 3 ERC at 1546. ECOLOGY LAW QUARTERLY Similarly, in Urie v. Franconia Paper Corporation,"0 5 a number of real estate owners in the Pemigewasset River Valley, only some of whom were riparian owners, sued for an injunction against pollution of the river by a paper mill. They contended that offensive odors from the pollution affected them all and that sludge and organic matter made the river unsightly and left foul deposits on the riparian owners' lands. The defendants contended that the pollution was, if anything, a public nuisance which should be left to public officials to deal with. The river was in fact subject to a ten-year abatement plan set by the legislature. The court, however, upheld the right of all the plaintiffs to maintain the private nuisance action.' 06 Plaintiffs and courts have found that private nuisance doctrine more readily allows the litigation of nuisance harm to numbers of peo- ple. 1°7 This derives from the common law concern for property rights and the fiction in the common law that each piece of land is unique. When the central problems posed by substantial pollution are the health, sanity, comfort, or beauty of an entire community, however, it does not serve the stature of the law well for access to courts to depend on the existence of an affected realty interest willing to sue. Nor should the focus of the cases be the type and extent of injury to a landowner's enjoyment of his property rather than the injury to all members of the public. It seems likely that increasingly courts will share the view expressed in Stock v. Ronan:0 s "it would appear to the court to be an invidious distinction to confine the right to a cause of 105. 107 N.H. 131, 218 A.2d 360 (1966). 106. Id. at 135, 218 A.2d at 363. 107. Jurgensmayer, Control oj Air Pollution Through Assertion of Private Rights, 1967 DuKE L.J. 1126; Porter, Role of Private Nuisance Law in the Control of Air Pollution, 10 ARiz. L. REv. 107 (1968); Schuck, Air Pollution As A Private Nuisance, 3 NATURAL RES. LAw. 475 (1970); Note, Private Remedies for Water Pollution, 70 COLUM. L. REV. 734 (1970); Note, Equity and the Ecosystems, 68 MICH. L. REV. 1254, 1270 (1970); Note, Water Quality Standards in Private Nuisance Actions, 79 YALE L.J. 102 (1969). The desire of the courts to get around the particular damage rule may also be seen in a case in which one of the authors represented a conservation organization. The Hudson River Fishermen's Association sought to intervene in a nuisance action brought by the Attorney General of New York for damages and an injunction against fish kills caused by a Consolidated Edison nuclear plant on the Hudson River. Al- though the court denied intervention, for the traditional reasons, it allowed full participation as an amicus. Hudson River Fishermen's Ass'n v. Consolidated Edison Co. of N.Y., New York Law Journal, June 7, 1971, at 2, col. 2. Another means of avoiding the snares of public nuisance law is an action in inverse condemnation. Thus, owners of 581 parcels of residential property have recently been granted in an inverse condemnation action the right to receive damages for a reduction in property value due to noise from aircraft at the Los Angeles International Airport. Aaron v. City of Los Angeles, Civil No. 837,799 (Los Angeles Cty. Super. Ct., de- cided Dec. 15, 1971) 3 ERC 1798. 108. 63 Misc. 2d 735, 738, 313 N.Y.S.2d 508, 512 (Sup. Ct. 1970). [Vol. 2:241 1972] PUBLIC NUISANCE AND THE RESTATEMENT 265 negligent or reckless conduct, or for abnormally dangerous conditions or activities. 11 4 Since most continuing nuisances are "intentional," the crucial word in this passage is "unreasonable." Unreasonableness is discussed in section 826 which states that an intentional invasion of another's interest is unreasonable if "the gravity of the harm outweighs the utility of the actor's conduct" or "the harm caused by the conduct is substantial and the financial burden of compensating for this and other harms does not render infeasible the continuation of the conduct." 1 5 Sections 827 and 828 lay out the factors which are con- sidered important in determining whether or not a defendant's activity has utility and a plaintiff has been caused harm.116 In addition sec- tions 829 through 831 contain illustrations of how the rules should operate. 117 These sections cover the multiple aspects of public nuisance, but do very little to clarify the maze of confused problems which have plagued the courts in dealing with the basis on which liability will be imposed for the tort of public nuisance. The clearest indication of this failure to develop a satisfying theory for liability is the frequent as- sertion by the courts that every case must be decided on its own pe- culiar facts." 8 "The law of nuisance affords no rigid rule to be ap- plied in all instances. It is elastic. It undertakes to require only that which is fair and reasonable under all circumstances."'"19 This is little more than an admission that there are few recognized principles which govern the courts in nuisance cases. The final draft of the Restatement (Second) accepts the failure to develop a satisfying theory by stating: "Fundamentally, the unreasonableness of intentional invasions is a 114. Id. § 822; Tent. Draft No. 18, supra note 5, § 822. This section and the others that deal with the utility/harm balancing process are written in terms of private nuisance and constantly make reference to the invasion of interests in land which is pertinent to private but not to public nuisance. The comments to these sections, how- ever, make it clear that the principles and rules stated apply to both private and public nuisance. See, e.g., Tent. Draft No. 17, supra note 4, § 822, comment a; Tent. Draft No. 16, supra note 1, § 826, comment a & note to Institute. The cases also do not recognize a distinction in dealing with the remedies for the two types of nuisance. Therefore the distinction between private and public nuisance will be ignored throughout the text in this section and cases dealing with causes in private nuisance will be assumed to be equally applicable to public nuisance. 115. Tent. Draft No. 17, supra note 4, § 826. 116. Id. § 827, 828. 117. Id. §§ 829-83 1; Tent. Draft No. 18, supra note 5, § 829A. 118. Cities Service Oil Co. v. Roberts, 62 F.2d 579, 581 (10th Cir. 1933) ("Since every case depends largely on its own facts, it is difficult to say categorically what the law in Oklahoma is."); Sarraillon v. Stevenson, 153 Neb. 182, 187, 43 N.W.2d 509, 512 (1950) ("There is no fixed or arbitrary rule governing cases of this class. Each case must be determined by the facts and circumstances developed therein."). 119. Stevens v. Rockport Granite, 216 Mass. 486, 488, 104 N.E. 371, 373 (1914), cited with approval in East St. John's Shingle Co. v. City of Portland, 195 Ore. 505, 246 P.2d 554 (1950). ECOLOGY LAW QUARTERLY problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case."120 There have been suggestions for bringing clarity and rationality into the principles governing liability and remedies in nuisance law. Tentative Drafts Nos. 17 and 18 briefly discuss the differing proposals put forward by Professor Fleming James and Professor Robert E. Kee- ton1 2' and a compromise embodying some of Professor Keeton's points is included in Tentative Draft No. 18.122 In an attempt to bring order to this situation we have thought it most useful to explore some of the confusions in nuisance law which are reflected in the cases and in the Restatement (Second) and offer a few suggestions for clarification. A. Determining Liability 1. Homogeneous Community and Equitable Cost-Spreading In determining liability the threshold question is whether the al- leged invasion is sufficiently substantial to amount, in the eye of the law, to an actionable invasion. An example of a complaint which falls below the threshold of harm is Grubbs v. Wooten, 12 3 in which the plaintiff sought to enjoin the use of a lot in a residential district for a graveyard monument business. The court was unimpressed by the claim of injury. "The possibility of injurious effect, from operating such a business, upon the mind of an adult or child is theoretical, fanciful, and too remote to constitute ground for condemning the busi- ness as a nuisance to be enjoined by the courts."'1 24 The injunction was not issued. In keeping with rulings of this sort, the Restatement (Second) retains the requirement that an invasion be substantial in order to be actionable.' 25 The point that there is a threshold of alleged harm below which a court will find no damage is obvious and is little more than an example of the old maxim, de minimis non curat lex. It is important to es- tablish the point in order to distinguish the true de minimis cases from another group with which they are easily confused and which we will call the homogenous community cases. Historically, the typical fact pattern of the latter cases involves a largely homogenous area in which the nuisance of, e.g., noise or smoke is created by many different homes or enterprises and in which the plaintiff also emits noise or 120. Tent. Draft No. 17, supra note 4, § 826, comment b at 34. 121. Id. at 31. The notes in the drafts on the James-Keeeton proposals are too brief to allow a fair and thorough critique of their suggestion. 122. Tent. Draft No. 18, supra note 5, § 829A. 123. 189 Ga. 390, 5 S.E.2d 874 (1939). 124. Id. at 396, 5 S.E.2d at 878. 125. Tent. Draft No. 17, supra note 4, § 821F. [Vol. 2:241 19721 PUBLIC NUISANCE AND THE RESTATEMENT 267 smoke, or at least receives the advantage of lower prices for the goods produced by the nuisance-causing enterprise. The courts frequently refuse to impose liability on defendants in these circumstances. 2 , A dictum in Krocker v. Westmoreland Planing Mill Co. 127 expresses this line of rulings: "People in cities must, of course, submit to many an- noyances and it is only when industries are unjustifiably such as to seriously interfere with people of ordinary sensitiveness that they will be restrained."12 8 The opinions in these cases rarely analyze the basis for the hold- ings and dicta which they recite. There are two or three theories on which the results might be justified. First, they can be viewed as de minimis cases, but the statements of the courts conceding real annoy- ance and injury to the plaintiff make that a strained interpretation. Moreover, the growing number of studies showing injurious effects from the low levels of pollution make this approach less than satisfy- ing.129 Second, there is what may be called the notion of equitable cost- spreading which is rarely if ever discussed in the cases but which seems to make sense of many of the holdings. 130 Simply put, this explanation of the case law contends that everyone has a right to clean air or quiet, but that in a relatively homogeneous community the benefit of dam- ages collected for each invasion of that right by polluters or noise- makers would be lost in the higher prices which it would be necessary to pay for goods and services, or in the damages which could be collected from the plaintiff for similar actions. Allowing the enforcement of the right to clean air or quiet in these circumstances would require the cost, time and effort of both lawyers and litigants with no advan- tage to the plaintiff in the long run. Thus, the refusal of the courts to entertain these claims results in a net saving to the affected parties and to the community as a whole. This practical interpretation of the position which the courts historically have taken infers rationality in the decisions, but it is not explicitly supported by the language of the cases. The number of situations today in which it is appropriate to refuse to award damages or an injunction on the basis of equitable cost- 126. See, e.g., Kennedy v. Frechette, 45 R.I. 399, 405, 123 A. 146, 148 (1924) ("Anyone living in a city must put up with the usual and ordinary noises of city life."); Holman v. Athens Empire Laundry Co., 149 Ga. 345, 100 S.E. 207 (1919). 127. 274 Pa. 143, 117 A. 669 (1922). 128. Id. at 146, 117 A. at 670. 129. See, e.g., Hodgson, Short-Term Effects 61 Air Pollution on Mortality in New York City, 4 ENVIRONMENTAL SCIENCE & TECHNOLOGY 589, 597 (1971). 130. See Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 449, 537 (1961). ECOLOGY LAW QUARTERLY Since the principle of equitable cost spreading has not been clearly articulated in the opinions, courts have difficulty recognizing when there are departures from the homogeneous community paradigm and fail to realize that the considerations of a situation in which the costs and benefits are equitably spread no longer fully apply. It is important that the courts come to recognize these distinctions because once they are taken into account the way is clear to engage rationally in the balancing process required in nuisance actions. 2. The Utility-Harm Balance The balancing of utility against harm contains two separate is- sues: first, to whom is the utility in the balance to run and, second, at the end of the balancing, what distinctions should be made between issuing injunctions and awarding damages. This section will examine the first of these issues. Tentative Draft No. 17 of the Restatement (Second) states in the Comments that "regard must be had not only for the interests of the person harmed but also for the interests of the actor and for the interests of the community as a whole."' 40 Accepting this rule would throw into the balance on the utility side both the utility to the defendant and the utility to the community or the public generally. These are two distinct considerations. They have often been talked of in the cases as if they were virtually interchangeable, especially where the defendant is an important taxpayer or employer in a small town.' 4 ' Thus, in Madison v. Duckworth Sulphur, Copper & Iron Co.,14 2 plain- tiffs sought an injunction against the operation of a smelting plant whose fumes and pollutants had injured plaintiff's land and crops. The court considered the effect of an injunction regarding the interests of both the defendants and the town as substantially synonomous, "we are asked to destroy . . . property worth nearly $2,000,000, and wreck two great mining and manufacturing enterprises, that are engaged in work of very great importance, not only to the owners, but to the state...,,143 It is, however, important to differentiate the interests of the de- fendant and the public. The benefits to a private defendant are ob- tained at the expense of other land owners or members of the public. These should not be weighed in the utility-harm balance. Although some courts have said that consideration of the advantages to private parties should be considered in the balancing process,' 4 4 there seems 140. Tent. Draft No. 17, supra note 4, § 826, comment c at 31. 141. E.g., Mountain Copper Co. v. U.S., 142 F. 625 (9th Cir. 1906); De Blois v. Bowers, 44 F.2d 621 (D. Mass. 1930). 142. 113 Tenn. 331, 83 S.W. 658 (1904). 143. Id. at 366, 83 S.W. at 665-66. 144. E.g., Mountain Copper v. U.S., 142 F. 625 (9th Cir. 1906); De Blois v. Bowers, 44 F.2d 621 (D. Mass. 1930); Hansen v. School District, 61 Ida. 109, 98 270 [Vol. 2:241 19721 PUBLIC NUISANCE AND THE RESTATEMENT 271 very little justice in this. It flies in the face of the old tort maxim that no man can use his property so as to cause injury to another. 145 In the words of an Indiana court: "[T]he magnitude of their investment and their freedom from malice furnish no reason why they should es- cape the consequences of their own folly."'1 46 Moreover, weighing the utility to the defendant does not have a persuasive economic justification. The price of goods and services should represent the real cost of their production and not be lowered by an externalizing of costs which is achieved at the expense of others. 147 If goods whose costs are internalized are not bought on the open market, the situation is simply one in which buyers do not think the goods are worth the cost of their production. There is no reason for the law to aid such goods in remaining on the market. The Restate- ment (Second) has failed to take a clear and persuasive position on this issue. 14 8 P.2d 959 (1940). But note that the defendants in two of the cases were arms of the Government which might claim a closer relationship between personal and public bene- fit than might private defendants. 145. See text accompanying note 12 supra. 146. Weston Paper Co. v. Pope, 155 Ind. 394, 402, 57 N.E. 719, 721 (1900). 147. For a longer discussion of this problem see d'Arge & Hunt, Environmental Pollution, Externalities, and Conventional Economic Wisdom: A Critique, 1 ENvIRON- MENTAL AFFAIRS 266 (1971). 148. The issue of internalizing costs, particularly where internalization would make it impracticable for the defendant to carry on an activity which had a recog- nized net utility to the community, is at the heart of one of the most confusing passages in the Restatement (Second). Professors Keeton and James, and Mr. Eldredge, all advisors to the Reporter, took the position in the 1971 proceedings of the ALI that costs generally should be internalized. Professor Keeton suggested a revision to the black letter of section 826 to incorporate this notion: An interference with either interest in the use and enjoyment of land is unreasonable if, but only if: (a) The gravity of harm including the risks of harm outweighs the utility of the actor's conduct, or (b) Even though utility in the actor's conduct outweighs harms and risks it causes, the resulting interference is greater than it is reasonable to require the other to bear under the circumstances without compensation, in which case the actor is subject to liability for damages but not to an injunction. 48 ALI PROCEEDINGS 83 (1971). Mr. Eldredge summarized the position of the three advisors on the case where awarding damages against a defendant engaged in utilitarian conduct might force him to cease his activity: [I]t is our thought that where you have that sort of a situation, it is not fair to ask the injured claimant to really subsidize this socially valuable activity. [I]t would be utterly wrong to have say 25 plaintiffs who have suf- fered substantial damage have to subsidize this operation at their expense. Id. at 84. At the same time Mr. Eldredge said that he would support "a little different form of language" which the Reporter would propose. The Reporter took the general position that this issue should be dealt with in comments rather than in the black letter of Restatement (Second), but nevertheless of- ECOLOGY LAW QUARTERLY [Vol. 2:241 A different situation is presented when the defendant claims that the community or the public as a whole benefits from his activity. It is inevitable that certain ultimately beneficial activities are, because of their mode of operation, nuisances. Cement manufacturing and cop- per smelting must take place somewhere and the neighboring land- owners and the public are bound to suffer from the manufacturing ac- fered another formulation of section 826 which he preferred to Professor Keeton's language: In an action for damages, an invasion of another's interest in the use of land is unreasonable despite the utility of the actor's conduct, if: (a) The harm resulting from the invasion is greater than it is reason- able to require the other to bear without compensation, or (b) The financial burden of compensating for this and other harms cre- ated by the conduct does not make continuation of the conduct imprac- ticable. Id. at 85. Mr. Eldredge and Professor James immediately moved to include the Reporter's language in the black letter, apparently believing that it incorporated their position. It is difficult to see how the language supports the Keeton-James-Eldredge position since it appears to say that an invasion is not unreasonable if compensating for the damage caused by it will make it impracticable to continue the invading conduct. In other words, an invasion of another's interest in land is compensable only up to the point at which the amount of damages would force the invader to halt his conduct altogether. Whatever the parties thought the language meant, the ALI was not in favor of it. The motion to include it in the Restatement (Second) failed, 76 to 64. Id. at 92. This would be an academic point if language substantially similar to that rejected by the ALI did not appear in Tentative Draft No. 18: Unreasonableness of Invasion. An intentional invasion of another's interest in the use and enjoyment of land is unreasonable under the rule stated in § 822, if (a) The gravity of the harm outweighs the utility of the actor's con- duct, or (b) The harm caused by the conduct is substantial and the financial burden of compensating for this and other harms does not render infeasible the continuation of the conduct. Tent. Draft No. 18, supra note 5, § 826. This section appears to bring back the substance of the language which the ALI re- jected. It certainly introduces the notion that an intentional invasion of another's in- terest is compensable only up to the point at which the award of damages would lead to the cessation of the conduct. This does not seem to be a very sound principle but it may be based on the theory that damage actions should not be allowed to become injunctive actions in disguise. If that is so, it is disrupting the more fundamental principal that costs should be internalized and consumers should make their choices of goods and services on the basis of the true cost of the items they are buying. The final oddity of section 826 in Tentative Draft No. 18 is that it no longer ap- pears in connection with the Keeton-James proposals which the Reporter now in- tends to handle by adding section 829A: Gravity vs. Utility--Serious Harm. Under the rules stated in §§ 826-828, an intentional invasion of another's interest in the use and enjoyment of land is unreasonable and the actor is subject to liability if the harm resulting from the invasion is substantial and greater than the other should be required to bear without compensation. We frankly feel that this whole tangled skein of compromises and reformulations is making confusion more confounded. It has become virtually impossible to state with surety what principles the Restatement (Second) embodies. 1972] PUBLIC NUISANCE AND THE RESTATEMENT 275 ales are laid out and the instinctive judgments of the courts made con- scious. The threshold question of substantial harm; the notion of equi- table cost-spreading; the proper elements of the utility-harm balance; and the distinctions in the use of injunctions and damages should be ex- plored and developed more than they are. In this analysis we have attempted a brief review of these issues which has necessarily passed over many of the subtleties and difficulties of nuisance law. Nevertheless, these suggestions may act as a starting point-a first probe into what Prosser has so aptly called the "impene- trable jungle" of nuisance law.160 IV PUBLIC NUISANCE AND ENVIRONMENTAL LAW The principal focus of this article has been an analysis of the law of public nuisance, with special emphasis on the recent revision of the public nuisance sections of the Restatement (Second) of Torts. This concluding section compares public nuisance with other environmentally significant common law and statutory causes of action and suggests in what areas public nuisance actions may be most useful to environ- mental lawyers. A. Common Law Causes of Action With the flowering in the last few years of environmental litiga- tion, numerous commentators have searched the common law for a cause of action appropriate to assert the public's interest in a decent environment. The great virtue of the common law, particularly in in- junction proceedings, has been its ability to respond and adapt itself to evolving concepts of legal procedure and social equity. With this in mind, Professor Sax has imaginatively revived the doctrine of public trust from the ancient canons of Anglo-Saxon and Roman law. 6' Other commentators have turned to the law of private nuisance. 62 But, because of the anachronisms in public nuisance law, which have made it only slightly easier to plead than disseisin or trover, little at- tention has been given to the tort of public nuisance. According to public trust doctrine, the government in holding and distributing public goods is a fiduciary for its citizens. As such the government is not as free as a private owner to sell or otherwise allow the exploitation of its property. Regrettably, however, the historical 160. W. PROSSER, supra note 2, § 86. 161. Sax, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 MicH. L. REv. 471 (1970). 162. See authorities cited at note 107 supra. ECOLOGY LAW QUARTERLY scope of public trust law was quite narrow and the judiciary remains largely unfamiliar with the concept.' 63 Public trust and public nuisance complement each other. Public trust ensures that the government, in actions affecting public lands and public rights, does not permit unreasonable harm to the community, whereas public nuisance protects the members of the public against pollution and environmental degradation. Public trust runs against the government as fiduciary owner of public assets; public nuisance runs against the polluter whether public or private. Private nuisance actions do not face the historical encumbrances of public trust or public nuisance, but they are concerned with private rather than public rights. As discussed above,16 4 modern courts should not permit the right to challenge pollution to depend on property own- ership, nor should they, in dealing with substantial pollution questions, focus only on the effect on a plaintiff's enjoyment of his land. Al- though courts have shown a tendency to hear private nuisance actions on the part of a number of persons with property near the source of the nuisance, 165 a liberalization of public nuisance law would obviate the necessity for plaintiffs and courts to fit their challenges and remedies within the property-protection standards of private nuisance doctrine. If any injured party may bring a nuisance action, public or private, then private nuisance actions may be reserved for situations in which the principal problem is invasion of property interests, and environ- mental threats to the health, comfort, and beauty of the community will be treated-as they logically should-as public nuisances. Public nuisance, then, is the only common law cause of action for challenging environmental degradation as an invasion of rights com- mon to the public. Private nuisance focuses on interference with pri- vate property rights; public trust is unfamiliar to courts and focuses on the fiduciary rights of government rather than rights vis-a-vis a polluter. B. Statutory Causes of Action The principal vehicle of environmental lawsuits to date has been section 102(2)(C) of the National Environmental Policy Act (NE- PA).' 6 6 NEPA offers great advantages for environmental plaintiffs, but it is not without flaws. The advantages are that private citizens 163. Sax, supra note 161, at 556. 164. See text accompanying note 108 supra. 165. See text accompanying note 106 supra. 166. 42 U.S.C. § 4332(2)(C) (1970). Lawsuits brought under this section in- clude: Natural Resources Defense Council v. Morton, 458 F.2d 827, 3 ERC 1558 (D.C. Cir. 1972); Calvert Cliffs Coordinating Comm. v. AEC, 449 F.2d 1109, 2 ERC 1779 (D.C. Cir. 1971); EDF v. Corps of Engineers, 331 F. Supp. 925, 2 ERC 1173 (D.D.C. 1971); EDF v. Corps of Engineers, 325 F. Supp. 749, 2 ERC 1260 (D. Ark. 1971); Wilderness Soc'y v. Hickel, 325 F. Supp. 422, 1 ERC 1335 (D.D.C. 1970). [Vol. 2:241 1972] PUBLIC NUISANCE AND THE RESTATEMENT 277 and organizations may challenge major federal actions under NEPA0 7 and that the burden is on the Government to prepare an adequate state- ment of the environmental impact of and alternatives to the project in question.16 s Where the impact statement is patently inadequate, as has often been the case, the plaintiff may secure a relatively easy initial victory, which results in a preliminary injunction against the project. 169 The victory, however, is often likely to be only a temporary one."' Government agencies, when challenged, will prepare a comprehensive statement 17' which is likely eventually to be found to satisfy section 102(2) (C).1 72 And it may be anticipated that agencies will, over time, become more adept at preparing invulnerable statements. Even when, as many environmentalists may conclude, the statement does little more than rationalize a proposed action, NEPA, at least as the courts have interpreted it to date,173 seems unlikely to offer a means to go beyond the procedural requirements of the impact statement to chal- lenge the merits of the contested actions. Public nuisance, in contrast, focuses on the merits. Does the ac- tivity in question unreasonably violate the rights of the affected com- 167. Sierra Club v. Morton, 405 U.S. 727, 3 ERC 2039 (1972), which holds that conservation organizations must allege something more than a general interest in a proposed activity for standing to challenge the activity, did not involve a NEPA claim. Although the question has not yet been treated by the Court, it may be that all conservation organizations will be found to have a stake in the full disclosure proce- dure of NEPA. 168. See cases cited at note 166 supra. 169. See, e.g., Natural Resources Defense Council v. Morton, 458 F.2d 827, 3 ERC 1558 (D.C. Cir. 1972); Wilderness Soc'y v. Hickel, 325 F. Supp. 422, 1 ERC 1335 (D.D.C. 1970). 170. Although environmentalists are genuinely concerned that agencies follow NEPA procedures and prepare adequate impact statements [see, e.g., Scientists' Insti- tute for Public Information v. AEC, 1 ELR 10079 (D.D.C., filed May 25, 1971) (suit asking, without a request for injunctive relief, for an environmental impact statement on the AEC's liquid metal fast breeder reactor program)], it is nevertheless normally true that their principal interest in section 102(2)(C) lawsuits is stopping the project in question. 171. See, e.g., Wilderness Soc'y v. Hickel, 325 F. Supp. 422, 1 ERC 1335 (D.D.C. 1970). 172. E.g., EDF v. Corps of Engineers, 331 F. Supp. 925, 3 ERC 1085 (E.D. Ark. 1971); Wilderness Soc'y v. Morton, Civil No. 928-70 (D.D.C., decided Aug. 15, 1972) 4 ERC 1467. 173. See, e.g., EDF v. Corps of Engineers, 325 F. Supp. 749, 755, 2 ERC 1260, 1264 (D. Ark. 1971). But see Calvert Cliffs Coordinating Comm. v. AEC, 449 F.2d 1109, 1115, 2 ERC 1779, 1783 (D.C. Cir. 1971): We conclude, then, that section 102 of NEPA mandates a particular sort of careful and informed decisionmaking process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factors- conducted fully and in good faith-it is the responsibility of the courts to reverse. ECOLOGY LAW QUARTERLY tionally been dealt with under nuisance law' 87 and a liberalized tort of public nuisance would offer the best means to combat it in the fu- ture. Similarly, strong and offensive odors are not controlled by legis- lation and have traditionally been dealt with as nuisances.'18 Dis- turbing vibrations may also be challenged as public nuisances.' 89 A significant area in which public nuisance may prove to be the only remedy is the protection of aesthetic values. Since it is impossible to legislate precise aesthetic standards, it is likely that the resonable- ness rule of nuisance actions and case-by-case analysis by the courts will remain for some time the best means for dealing with threats to natural beauty. An excellent recent law review note discusses fully the authority for and value of aesthetic nuisance actions. 9 ' As the author indicates, nuisance law is the only means of challenging, for ex- ample, a junkyard along a historic and scenic river, the location of a sanitary landfill, or the siting of a nuclear power plant near a seacoast community. Finally, the Supreme Court recently has rendered an opinion which suggests that all forms of interstate pollution may be challenged in federal courts as public nuisances. The decision seems likely to add greatly to the significance of public nuisance law for environmental litigation. In Illinois v. City of Milwaukee,'9' Illinois sought to sue, under the original jurisdiction of the Supreme Court, four Wisconsin cities for pollution of Lake Michigan. Although the Court declined to en- tertain original jurisdiction, it ruled that the suit might properly be brought in federal rather than state court and that federal common law rather than choice of law and state substantive law principles would govern. Writing for the Court, Justice Douglas stated: "When we deal with air or water in their ambient or interstate aspects, there is a federal common law."' 92 The Tenth Circuit had earlier reached a similar conclusion in Texas v. Pankey, 9 a suit by Texas against New Mexico ranchers who polluted the Canadian River with pesticide run- off. The more precise contours of federal public nuisance law must await further decisions. One significant question will be whether citizens may bring such actions. There is nothing in the jurisdictional statute, 28 187. See, e.g., People v. Rubenfeld, 254 N.Y. 245, 172 N.E. 485 (1930). 188. See, e.g., Fortin v. Vitali, 15 Mich. App. 657, 167 N.W.2d 355, 2 ERC 1330 (1969); Soap Corp. of America v. Reynolds, 178 F.2d 503 (5th Cir. 1950). 189. Transcontinental Gas Pipeline Corp. v. Gault, 198 F.2d 196 (4th Cir. 1952). 190. Note, Aesthetic Nuisance: An Emerging Cause of Action, 45 N.Y.U.L. REV. 1075 (1970). 191. 406 U.S. 91, 4 ERC 1001 (1972). 192. Id. at 103, 4 ERC at 1005. 193. 441 F.2d 236, 2 ERC 1200 (10th Cir. 1971). The case is discussed at 1 ELR 10018-22. [Vol. 2: 241 1972] PUBLIC NUISANCE AND THE RESTATEMENT 281 U.S.C. 1331(a), on which the Supreme Court based its opinion in Illinois, to suggest that suits by citizens should be treated differently from suits by states. It would be unfortunate if the new federal com- mon law, as yet unencumbered with the traditional particular damage rule, should adopt it to bar citizen suits. In any event, the potential impact of Illinois v. City of Milwaukee seems great.'9 4 CONCLUSION In sum, a liberalized law of public nuisance, which the Restatement (Second) of Torts and a few recent cases portend, would provide in most jurisdictions, the principal or only means for challenging aes- thetic blights, noise pollution, and offensive continuing odors. Public nuisance could also be the principal means for citizen challenges to water pollution and, along with private nuisances, will be the basis for damage actions for both water and air pollution. Finally, in Illinois v. City of Milwaukee the Supreme Court has opened the federal courts to public nuisance actions against all forms of interstate pollution or pollution of the navigable waters. In all of these instances, and others yet unforeseen, public nuisance provides a unique doctrine for the pres- entation of the public interest in freedom from, or compensation for, in- jury done to the natural resources which the public holds in common. 194. The extent of federal public nuisance law could be significantly limited if courts find a sweeping preemption of the common law by federal legislation. However, Illinois v. City of Milwaukee, indicates that, barring real inconsistency, preemption should not be found. "It may happen that new federal laws and new federal regulations may in time preempt the field of federal common law of nuisance. But until that time comes to pass, federal courts will be empowered to appraise the equities of suits alleging creation of public nuisance by water pollution." 406 U.S. at 107, 4 ERC at 1006.