Thursday, March 22, 2018
Doug Rendleman has posted to SSRN Rehabilitating the Nuisance Injunction to Protect the Environment. The abstract provides:
The Trump administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This article advocates more vigorous state environmental tort remedies for nuisance and trespass.
An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’s decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue public health and environmental protection and militate against effective private-law remedies for environmental torts.
This article advocates flexible and pragmatic common-law techniques instead of doctrinal law-and-economics analysis. Moreover, behavioral economists’ studies have undermined and qualified many law-and-economics theories. In addition to arguing for more and better injunctions, this article criticizes the law-and-economics mindset that nuisance-trespass parties’ post-injunction negotiation will convert an injunction into an excessive money settlement. It also shows that the Cathedral article’s vocabulary and four-rule organization are both too long and too short as well as confusing and misleading.
This article maintains that courts’ private-law environmental injunctions should utilize judicial techniques from public-law structural injunctions in what it calls the standards injunction. In addition, courts ought to broaden nuisance and trespass plaintiffs access to punitive damages and restitution. The author hopes that this argument for more and more detailed private-law injunctions and remedies will percolate upward to augment environmental protection leading to more effective private- and public-law remedies against environmental torts and other environmental violations including global warming, and climate change.