Legal Foundations of Environmental Planning

Textbook-Casebook and Materials on Environmental Law

Jerome G. Rose

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351509077
• Edition: 1
• Topic: Law
• Subtopic: Civil Procedure
• Index: Law

Planners and lawyers engaged in the formulation and implementation of plans affecting the environment should have a working knowledge of the legal principles affecting those plans. They should also be familiar with the principles of environmental law. However, environmental law has not been a traditional part of the curriculum of law schools. Many practicing lawyers have never taken a course in environmental law; nor have many of the judges charged with deciding cases whose outcome may have consequences for the environment.

In the interest of counteracting this lack of knowledge, Legal Foundations of Environmental Planning integrates excerpts from more than seventy-five court case rulings to illustrate the system of environmental laws and the problems of enforcement.

Dedicated specifically to discussions on legal theories and procedures, air pollution, water pollution, and control of population growth and distribution, this sourcebook also includes an extensive glossary of environmental terms. It is a valuable aid for students, legal specialists, public officials, environmental professionals, and urban planners.

Part One
Legal Theories and Procedures

Part One
Legal Theories and Procedures

A. Legal Theories on Which Suits May Be Based

Planners and lawyers engaged in the formulation and implementation of plans affecting the environment would be aided by a good working knowledge of the legal principles affecting those plans. More particularly, they should be familiar with the principles of environmental law. However, environmental law has not been a traditional part of the curriculum of law schools. In fact, many lawyers practicing today have never taken a course in environmental law; nor have many of the judges charged with deciding cases whose outcome may have serious consequences for the environment.

Environmental law has developed as a composite subject, drawing on the traditional subjects of the law, to derive those components that have implications for the environment. For example, property law is concerned with the rights associated with the ownership of title to the land. Among those rights are certain obligations relating to the environment. It is these environmental implications of property law that are properly included in the study of environmental law. Similarly, a tort is a legal wrong for which a legal remedy may be sought. Legal wrongs relating to the environment are also considered part of environmental law. Other components of environmental law include administrative law, which deals with the rights and obligations of government officials in the performance of their duties; procedure, which deals with the process by which a person who believes he has a legal right may seek a judicial response; constitutional law, which deals with the principles and values that are the foundations of our legal system and may impose limitations on actions; and the interpretation and writing of legislation.

Legal scholars have long recognized that there is a relationship between justice and certainty in the law. When law is definite and certain, freedom may be enhanced within the precise boundaries created by the law. Legal theories have been created to make the law more definite and certain by delineating areas of conduct that are permissible and prescribing the consequences if the principles are violated. By this system, individual rights may be protected and society may develop an understanding of what it may do. Thus, if the quality of the environment is threatened, it is useful to have general legal theories on which a law suit may be brought. However, protection of the environment often comes into conflict with the rights of individuals. The legal theories on which environmental law suits are based seek to balance the interests of society in preserving the environment and the private rights of individuals.

1. NUISANCE

Nuisance is a common law principle that is defined as an unreasonable and substantial interference with the use or enjoyment of one's property without an actual physical trespass or unauthorized physical entry. It is an important concept of both the law of property and the law of torts.

The nuisance doctrine is an important legal theory on which environmental law suits are based because it can be used when one person causes annoyance, inconvenience, discomfort or damage to another without ever crossing the boundary line of the property owner. For example, if someone creates noises or smells or carries on any activity that is offensive or dangerous and thereby deprives the owner of reasonable use and enjoyment of his property that activity may be characterized as a nuisance for which the law provides a remedy.

In determining whether a particular activity constitutes a nuisance, it is difficult to define just how much annoyance or inconvenience is necessary to make it objectionable. It is always a question of degree, depending on the circumstances. In every case the right of one landowner to use his property must be balanced against the right of the other landowner to enjoy his own property without unreasonable interference and annoyance by his neighbor. Each case also involves a balancing of the usefulness and social need of the activity against the amount of harm which it inflicts. This process of balancing the competing interests is one of the central themes of environmental law.

One of the traditional common law distinctions of the nuisance doctrine is the comparison of the private nuisance and the public nuisance. A private nuisance involves the interference with the use and enjoyment of the property of one or a limited number of persons. A public nuisance involves the interference with the enjoyment, comfort, standards of health, safety and convenience of the community at large. For example, if an electric generating plant causes air pollution by the use of high sulfur coal as fuel, the act would constitute a public nuisance because of the large numbers of persons affected. The distinction between the public and private nuisance is important because if a person seeks to enjoin a public nuisance he must be able to prove "special damages," that is, damages that are peculiar to him and greater than the damages to the general public. Thus, it would be difficult for a private person to bring a suit to enjoin an electric generating plant from causing air pollution unless the plaintiff could show "special damages." For additional information see Prosser, Private Action for Public Nuisance, 52 VA. L. REV. 997 (1966) and Trumbull, Private Environmental Legal Action, 7 U. SAN FRANCISCO L. REV. 27 (1972).

Hulbert
v.
California Portland Cement Co.

161 Cal. 239, 118 P. 928 (1911)

MELVIN, J. Petitioner has made an original application to this court to suspend the operation of a certain injunction until the decision of the appeals in two cases, in each of which the California Portland Cement Company, a corporation, is the defendant, on the ground that the property of the corporation would be so greatly damaged by the operation of the injunction pending the appeals that a judgment in defendant's favor would be almost fruitless; while it is contended the damage to plaintiffs is easily susceptible of satisfaction by a payment of money. Petitioner offers to furnish any bond this court may require, if the order which is prayed for shall be granted. As this was the first case in America, so far as this court knew, in which the operation of a cement plant had been enjoined because of the dust produced in the processes of manufacture, and as the showing which was made indicated that petitioner's loss would be very great if the injunction were enforced at once, an order was entered, temporarily staying its operation until both sides to the controversy could be heard. The court was moved somewhat to such action also because the trial court had made an order staying the operation of the injunction for 60 days, so that this court might have the opportunity of passing upon this application. Two principal questions are presented: (1) Has the Supreme Court the authority in aid of its appellate jurisdiction, under section 4 of article 6 of the Constitution, to suspend the operation of an injuction pending appeal? (2) If it have such power, is this a proper case for the exercise thereof? Owing to the conclusion which we have reached, it is unnecessary to answer the first question authoritatively, because, assuming a reply to it in the affirmative, we cannot say that the facts of this case warrant any other response to the second inquiry than a negative one.

The salient facts shown by the petitioner are that the California Portland Cement Company is engaged in the manufacture of cement on property situated nearly two miles from the center of the city of Colton, in the county of San Bernardino, but not within the limits of said city; that said manufactory is located at Slover mountain, where the substances necessary to the production of Portland cement are quarried; that long before the surrounding country had been generally devoted to the production of citrus fruits Slover mountain had been known as a place where limestone was produced; that quarries of marble and limestone had been established there; that lime kilns had been operated upon said mountain for many years; that in 1891 the petitioner obtained title to said premises, and commenced thereon the manufacture of Portland cement; that the said corporation has expended upon said property more than $800,000; that at the time when petitioner began the erection of the cement plant the land surrounding the plant was vacant and unimproved, except some land lying to the north which had been planted to young citrus trees; that these trees were first planted about a year before the erection of the cement plant was commenced (but long after the lime kilns and the marble quarries had been operated) that subsequently other orange groves had been planted in the neighborhood; that the petitioner's plant on Slover mountain has a capacity of 3,000 barrels of cement per day; but that by the judgment of the superior court in two certain actions against petitioner, entitled Lillie A. Hulbert, Administratrix, etc., v. California Portland Cement Company, a Corporation, and Spencer E. Gilbert, plaintiff, v. Same Defendant, the corporation aforesaid was enjoined from operating its plant in such manner as to produce an excess of 88,706 barrels of finished cement per annum; that the regular pay roll of the company includes the names of about 500 men, who are paid about $35,000 a month; that the fixed, constant monthly expenses for supplies and materials amount to $35,000; that the California Portland Cement Company employs the best, most modern methods in its processes of manufacture, but that nevertheless there is an unavoidable escape into the air of certain dust and smoke; that petitioner has no other location for the conduct of its business at a profit; that the land of the Hulbert estate is located from 1,500 to 2,500 feet from petitioner's cement works, and that Spencer E. Gilbert's land is all within 1,000 feet therefrom; that petitioner has diligently sought some means of preventing the escape of dust from its factories; that it has consulted the best experts and sought the best information obtainable, and that it is now and has been for a long time conducting experiments along the lines suggested by the most eminent engineering authorities upon this subject, and that as soon as any process can be evolved for preventing the escape of the dust, the petitioner will adopt such process in its works, and it is believed that a process now constructing with all diligence by petitioner will effectually prevent the escape of dust. Petitioner also alleges that it is easily possible to estimate the damages of the plaintiffs in money, while it is utterly impracticable to estimate the damage in money which will be caused to the petitioner by the closing of the plant, and that stopping the plant pending the appeals will cause financial ruin to the chief stockholders of the petitioner, and that the elements of loss averred are irreparable on account of the disorganization of petitioner's working force, loss of market, and deterioration of machinery.

The learned judge of the superior court, in deciding the cases in which petitioner here was defendant, described the method of manufacturing cement and the injury to the trees. He said, in part: "The output from these two mills at the present time is about 2,500 barrels of cement every 24 hours, and to produce this there is fed into the various kilns of the defendant, during the time mentioned, about 1,500,000 pounds of raw mix, composed of limestone and clay, ground as fine as flour and thoroughly mixed. This raw mix is fed into the tops of kilns, wherein the temperature varies from 1,800 to 3,000 degrees Fahrenheit, and through which kilns the heated air and combustion gases pass at the rate of many thousands of feet per minute. The result of this almost inconceivable draft is to carry out, in addition to the usual products of combustion, particles of the raw mix, to the extent of probably 20 tons per day or more, the greater part of which, without question, is carried up into the air by the rising gases, and thereafter, through the action of the winds and force of gravity, distributed over the surrounding territory." Speaking of the premises of the plaintiffs, he said that, because of prevailing westerly winds and on account of the proximity of the mills, said lands were almost continually subject to the deposit of dust. In this regard he said: "It is the fact incontrovertibly established by both the testimony of witnesses and personal inspections made by the court that a well-nigh continuous shower of cement dust, emanating from defendant's cement mills and caused by their operation, is, and for some years past has been, falling upon the properties of the plaintiffs, covering and coating the ground, filtering through their homes, into all parts thereof, forming an opaque semi-cemented incrustation upon the upper sides of all exposed flowers and foliage, particularly leaves of citrus trees, and leaving ineradicable, yet withal plainly discernable, marks and evidence of dust, dusty deposits, and grayish colorings resulting therefrom, upon the citrus fruits. The incrustations above mentioned, unlike the deposits occasionally occurring on leaves because of the presence of undue amounts of road dust or field dust, are not dissipated by the strongest winds, nor washed off through the action of the most protracted rains. Their presence, from repeated observations, seems to be as continuous as their hold upon the leaves seems tenacious." The court further found that the deposit of dust on the fruit decreased its value; that the constant presence of dust on the limbs and leaves of the trees rendered the cultivation of the ground and the harvesting of the crop more costly than it would have been under ordinary conditions; and that said dust added to the usual and ordinary discomforts of life by its presence in the homes of the plaintiffs. The court also found that the operation of the old mill of the defendant corporation had occurred with the acquiescence of the plaintiffs, and that the defendant had acquired a prescriptive right to manufacture the maximum quantity of cement produced annually by that factory.

In view of such facts solemnly found by the court after trial, we cannot say that there is reason for a suspension by this court of the injunction, even conceding that we have power under proper circumstances thus to prevent a disturbance of existing conditions, pending an appeal. We are not insensible to the fact that petitioner's business is a very important enterprise; that its location is peculiarly adapted for the manufacture of cement; and that great lo...