Tuesday, July 5, 2011
Allan Kanner (Kanner & Whiteley) has posted Public and Private Law on SSRN (Tulane Envtl Law Journal). Here's the abstract:
This article explores the impact of state and federal environmental laws and regulations on landowners' property rights, and their constitutionally protected rights of access to the courts, which have historically been employed by property owners to protect those property rights. These private actions include actions for nuisance, negligence and strict liability for abnormally dangerous activities. At the same time, new public law regulatory schemes have emerged to deal with these same activities and intrusions.
The co-existence of public and private laws addressing environmental hazards raises a number of important issues. One question is when, if at all, may legislation establishing an administrative regime be invoked defensively to validate and legitimate conduct that would, under judicial scrutiny at private law, be deemed to damage the property of another, or interfere unreasonably with the use and enjoyment of another's property? In other words, when, if at all, does a civil wrong cease being an immediately actionable wrong?
The answer proposed here is that it rarely makes sense to delay the prosecution of an otherwise actionable civil wrong. Most arguments in favor of delay improperly attempt to create an expression of legislative will to compel the weighing of pragmatic concerns of dubious authenticity and substance against constitutional rights expressly created to protect one's property and to authorize private actions in service of the same goal. More troubling are the extreme misrepresentations one sees in arguments concerning the forms, limits, and practice of public environmental law which are advanced to defeat property rights.