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By Prashant Tank. Student, MS Environmental Technology, NYIT ID # 0583635
1. Introduction
Common Law as founded in custom and precedent. It is therefore neither the creation of a sovereign nor dictated
or invented by legal dictation, but handed down in a continuous process of interpretation and reinterpretation of
the significance of previous custom. [1] Common law address the common law issues and it is applicable equally to
everyone regardless to one’s social economical and political status so it can be said as vertebrae of democracy.[2]
Common law system is important for the current legal environmental concerns because, though the preamble of
the US constitution[3] and Section 8 of legislative power article[3] set the foundation for environmental law, neither
the us constitution[3] nor the bill of rights[4] clearly stated the environmental law, it is the common law that came
as forerunner for today’s environmental law.
[5]
2. History of Common Law
2.2 Common Law in United States
Apart from the tradition common law practice in England which served as a foundation for today’s United state’s
common law, “Magna Carta” document sealed by King John of England on June 15, 1215 influenced the
development of the common law and many constitutional documents, such as the United States Constitution and
Bill of Rights, and is considered one of the most important legal documents in the history of democracy. Though
today’s United State’s common laws are not practiced as it is in it’s ancient form, but those had influenced the
establishment of the country’s system of law at the time of American Revolution.
It is found that all former Colonies of British Empire has accepted ancient British Common Law system as the
foundation for its current legal structure.
3. Common Law adjudication
In a common law jurisdiction, several stages of research and analysis are required to determine what "the law is"
in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases.
Then one must extract the principles, analogies and statements by various courts of what they consider important
to determine how the next court is likely to rule on the facts of the present case. Later decisions and decisions of
higher courts or legislatures carry more weight than earlier cases and those of lower courts. [5] Finally, one
integrates all the lines drawn and reasons given, and determines what "the law is". Then, one applies that law to
the facts.
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In actual practice the execution is not as straight forward at it looks like, because common law evolved as a
gradual series of steps, one can not give decision based on prior decision even it is the same case because there
are so many factors that changes over a period of time such as technology, social economical and political factors.
4. Torts
The word torts derived from French word which means "wrong," a civil wrong or wrongful act, whether intentional
or accidental, from which injury occurs to another. [7]
Common Law Torts include the following which are most common are:
4.1 Nuisance
4.2 Trespass
4.3 Negligence
4.4 Strict Liability
4.1 Nuisance [7] [8]
Nuisance is defined as “that activity which arises from unreasonable or unlawful use by a person of his/her
own property, working obstruction or injury to the rights of another, or to the public and producing such material
annoyance, inconvenience and discomfort that the law will presume
Resulting damages.”
A particular activity is declared a nuisance when its usefulness is outweighed by its harmfulness. Based
upon the victim for the nuisance, it is divided in to two classes
4.1.1 Private Nuisance
A private nuisance is the unreasonable, unusual, or unnatural use of one’s property so that it substantially
impairs the right of another to one’s property so that it substantially impairs the right of another to peacefully
enjoy his property.
One is subjected to liability for a private nuisance if, his conduct is a legal cause of an invasion of another’s
interest in the private use and enjoyment of land, and the invasion is either
a) Intentional and Unreasonable
b) Unintentional and otherwise actionable under the rules controlling liability for negligent or reckless
conduct
c) For abnormally dangerous condition or activity.
In case between Exxon Corp., U.S.A. v. Dunn [10] court concluded that an oil company’s failure to prevent
noise, vibrations, and emissions from it plant from unreasonably interfering with the peaceful enjoyment, use and
occupation of the neighboring landowner’s property constituted a nuisance. The conduct is the example of
reckless conduct even the of the oil company’s establishment was lawful but it’s activity is concluded as reckless
conduct. The court awarded the plaintiff‐homeowners damages totaling $304,750 for the full market value of their
house.
While taking such decisions it is the court which decides the Gravity of the Injury in the case above the alleged
nuisance is of a continuing nature and over that it had produced a long lasting effect. The judgment is peculiar in
nature as the court has awarded the home owner with compensation rather then hindering the activity of the oil
company at larger extent.
4.1.2 Public Nuisance [7] [8] [9]
A public nuisance interferes with the public as a class, not merely one person or a group of citizens. The
individual must show that the injury suffered was in some way different from that suffered by other members of
the general public. Public nuisance may interfere with public health, safety and public moral. Public health and
safety are the two prime concerns which are related to the environmental issues. New York has made public
nuisance a crime (second degree criminal nuisance) under the Penal Law.
Some nuisances can be both public and private in certain circumstances where the public nuisance
substantially interferes with the use of an individual's adjoining land. For example, pollution of a river might
constitute both a public and a private nuisance. This is known as a mixed nuisance.
Remedies which are available under nuisance are Injunctive relief or monetary award to pay for loss, harm or
suffering.
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4.2 Trespass
Entering another person's property without permission of the owner or his/her agent and without lawful
authority (like that given to a health inspector) and causing any damage, no matter how slight. Any interference
with the owner's (or a legal tenant's) use of the property is a sufficient showing of damage and is a tort sufficient
to form the basis for a lawsuit against the trespasser by the owner or a tenant using the property. Trespass for an
illegal purpose is a crime.
Because trespass is strict liability claim plaintiffs in such common‐law actions may succeed even in the absence
of proof of actual harm or injury. [9]
Environmental trespass can be endorsed when there is a proven “actual injury” rather then the nominal
damage. In the case between Smith v. Carbide and Chemicals Corp., 2005‐SC‐686‐CL (June 21, 2007) the Dept. of
Health found trichloroethlene (TCE) and technetium‐99 (Tc‐99) in groundwater where the plaintiff’s property was
located. This happened in 1988 and again in 1990. About 10 billion gallons of contaminated water was involved,
but no health problems were ever associated with the bad stuff. The landowners sued based on intentional
trespass and diminution of property values. The Kentucky Supreme court dismissed the complain as the plaintiff’s
failure to prove the apparent injury. [11]
The difference between trespass and nuisance is supposedly based on the distinction between the right of
exclusive possession and interference with use and enjoyment and more particularly on the concept of physical
invasion. [12]
4.3 Negligence
Negligence is failure to exercise the care toward others which a reasonable or prudent person would do in the
circumstances, or taking action which such a reasonable person would not. [6]
In order to establish negligence as a cause of action under the law of torts, a plaintiff must prove that the
defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required
standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff
was, in fact, harmed or damaged.
The case, known as U.S. v. Hanousek, 120 S.Ct. 860, 145 L.Ed. 2d 710 (2000) [176 F.2d 1116 (9th Cir. 1999)],
involved the criminal prosecution of a manager, Hanousek, who was responsible for track maintenance and
construction projects for a railroad company in Alaska. The project required the removal of rock from the curve,
which included both the railroad and a high pressure oil pipeline. Hanousek, the manager, became responsible for
the project one month after project construction began. Four months later, a backhoe operator working for a
construction contractor hit the oil pipeline with his backhoe bucket, causing a release of 1,000 – 5,000 gallons of oil
down the cliff into the Skagway River. The resulting investigation found that a protective platform was used to
shield the pipeline before Hanousek became the overseer. But, the platform was not used after he assumed
management. The U.S. Attorney brought criminal charges against Hanousek, and he was convicted by a federal
jury, for violating the Clean Water Act by negligently discharging oil into navigable water. [13]
4.4 Strict liability
Absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness
or fault. Strict liability, sometimes called absolute liability, is the legal responsibility for damages, or injury, even if
the person found strictly liable was not at fault or negligent. Strict liability has been applied to certain activities in
tort, such as holding an employer absolutely liable for the torts of her employees, but today it is most commonly
associated with defectively manufactured products.
5. Conclusion
The common law systems are considered as more complex then it appears above. Common Law are proved to
be ineffective against controlling the air, water and land pollution as it dose not reflect strict regulation standards
so it requires interaction between constitutional law, statutory law and regulatory law, further complexity rise due
to the interaction amongst these laws. Regardless of limitations of Common Law it is the major contributor for
current legislative structure.
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Reference:
1. http://www.oxfordreference.com.arktos.nyit.edu/views/ENTRY.html?entry=t98.e2729&srn=1&s
sid=233505614#FIRSTHIT
2. The Unity of the Common Law. Alan Brudner ,UNIVERSITY OF CALIFORNIA PRESS
3. Berkeley ∙ Los Angeles ∙ Oxford
4. www.gpoaccess.gov
5. Image Source = http://www.wikipedia.org/
6. Ex parte Holt, 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991) (explaining the hierarchy
of precedent binding on tribunals of the United States Patent Office)
7. www.dictionary.law.com/
8. New York environmental law handbook. Nixon Peabody LLP
9. www.law.jrank.org
10. The Environmental law and compliance handbook James F. Berry & Mark S. Dennision
11. Exxon Corp., U.S.A. v. Dunn, 474 so.2d 1269 (Fla. App.1985)
12. http://troutmanhays.wordpress.com/2007/06/24/intentional‐trespass‐important‐clarifications‐
on‐environmental‐harm‐for‐businesses‐to‐consider/
13. http://www.abanet.org/environ/committees/counsel/newsletter/aug00/rich.html
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