Nuisance Abatement

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NUISANCE ABATEMENT

Before there were statutes and regulations dealing with public health, some protections were afforded by common law—the body of law developed through the case-by-case adjudication of disputes. The ancient protections against nuisances are common law rules that were originally intended for protection of private property rights and that, incidentally, benefitted public health.

A "nuisance" (also called a "private nuisance") is a condition or activity that unreasonably interferes with the use and enjoyment of private property. Examples of nuisances that affect public health include toxic chemicals leaching from a nearby mine into a landowner's well water; excessive noise; smoke or other air pollutants; and even hordes of flies from a neighbor's manure pile. A nuisance is usually ongoing; a one-time or brief occurrence would not usually be a substantial enough interference with property rights to constitute a nuisance. (This does not mean there is no remedy for harm caused by a one-time occurrence, such as a chemical explosion.)

A landowner may file a court action seeking redress from the responsible party for a nuisance. One remedy is damages (i.e., money) to compensate for harm resulting from the nuisance. Courts can also grant injunctive relief, such as ordering the responsible party to abate the nuisance. A court can also enjoin (bar) an anticipated activity that has a high likelihood of causing a nuisance, such as building an incinerator in a residential area.

Injunctive relief can be intrusive and onerous, and therefore it is granted only if justified in light of all the relevant circumstances, including the respective harms and benefits to each party, where the fault lies, and the existence of alternative remedies. For example, if homeowners sue to enjoin construction of a factory in their neighborhood, the court would weigh such factors as the health effects and decreased property values likely to be suffered by the residents, as well as the feasibility and cost to the company of locating the project elsewhere. If homeowners seek injunctive relief due to pollution from an existing factory, the cost on the defendant's side of the equation is likely to be much greater, and thus harder to overcome, especially if relief would require shutting down the factory.

The cause of action for nuisance discussed above is sometimes called private nuisance, to distinguish it from public nuisance. Whereas a private nuisance is an invasion of private property rights, a public nuisance is an interference with a right held in common by the public. The common law rules against public nuisance were developed, in part, for the protection of the public health and safety. Pollution of a river that interferes with the public's right to swim or fish is an example of a public nuisance. A governmental entity, or any individual affected by a public nuisance, can sue in court for abatement of the nuisance or other relief.

Today, there are other avenues available to accomplish goals that once relied solely on the common law. Federal and state environmental statutes, such as the Clean Water Act and the Clean Air Act, provide protections against public nuisances that harm the environment and public health. Much like the common law rule against public nuisances, many of these statutes can be enforced in court not only by governments, but also by affected citizens. Although invoked less frequently nowadays, the old common law protections against private and public nuisance are still generally recognized and available if needed.

Russellyn S. Carruth

(see also: Clean Air Act; Clean Water Act; Public Health and the Law; Regulatory Authority; Toxic Torts )