Introduction 757 I. Public Nuisance and the Special Injury Rule: Three Illustrations of the Paradox 765 A. The Doctrinal Landscape: Public Nuisance and the Special Injury Rule 765 1. A Brief History of Nuisance Law 767 2. Unique Aspects... more
Introduction 757 I. Public Nuisance and the Special Injury Rule: Three Illustrations of the Paradox 765 A. The Doctrinal Landscape: Public Nuisance and the Special Injury Rule 765 1. A Brief History of Nuisance Law 767 2. Unique Aspects of the Three Types of Nuisance Actions 771 3. The Uniqueness of the Public Nuisance Cause of Action 774 B. The High Barrier Posed by the Special Injury Rule: Three Illustrations 776 1. The Exxon-Valdez Oil Spill: Differential Treatment of Recreational, Cultural, and Commercial Fishing Claims 776 2. Public Beach Access: Contrasting Results in Florida and Hawai’i 781 3. Community Welfare: Economic Losses and Threats to the Social Fabric 786 II. Examining the “Ancient” Special Injury Rule: The Twisted History of the Different-in-Kind and Differentin-Degree Tests 790
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Environmental common law litigation has reemerged in recent years as a powerful second pathway alongside statutory avenues for practitioners, communities, and governments to seek redress for environmental wrongs. Through a series of case... more
Environmental common law litigation has reemerged in recent years as a powerful second pathway alongside statutory avenues for practitioners, communities, and governments to seek redress for environmental wrongs. Through a series of case studies written by practitioners, this book illustrates the possibilities of creatively using common law approaches to address a range of pressing environmental problems. The book first provides an overview of the major common law remedies and describes the limits of using existing statutory remedies under environmental citizen suit provisions. This overview is followed by a number of case studies profiling how common law theories have been applied or can be applied to protect environmental resources, including cutting-edge successful product liability actions against the manufacturers of PERC and MTBE for groundwater contamination; innovative public nuisance actions filed by public entities against the lead paint industry; creative administrative nuisance litigation to shut down a concrete-crushing facility; public nuisance actions against car manufacturers and large power producers because of their greenhouse gas emissions; actions under the public trust doctrine to restore water resources for Native Hawaiians and to protect wildlife; and common law theories for limiting harms from concentrated animal feeding operations. Contributing authors include Joseph Sax, William Rodgers, Michael Axline, Matthew Pawa, Ken Alex, Richard Drury, Victor Sher, Duane Miller, D. Kapua'ala Sproat, Isaac Moriwake, Andrew Hanson, Katie Zoglin, Jan Stevens and Tara Mueller.