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State Common Law of Public Nuisance in the Modern Administrative State

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State Common Law of Public Nuisance in the Modern Administrative State State Common Law of Public Nuisance in the Modern Administrative State F. William Brownell n recent years, the ancient writ of “public nuisance” has provided that a public nuisance must be abated by a process experienced a renaissance in the area of environmental law. instituted in the name of the state. Plaintiffs’ attorneys, public-interest groups, and state attor- Starting in the sixteenth century, the common law rec- neys general have brought public nuisance actions seeking ognized a private cause of action for activity that impacts a Iinjunctive relief or damages for air pollution and climate change, “public right” (e.g., pollution of a river) but also for activity among other environmental concerns. These actions have tar- that causes a harm in which the public does not participate and geted in-state and out-of-state sources and addressed local as well that is distinct and peculiar to an individual (e.g., damage to a as interstate and even global environmental issues. fish hatchery operated on that river). See R. Faulk and J. Gray, The variety and breadth of recent environmental public nui- Alchemy in the Courtroom? The Transmutation of Public Nuisance sance actions are not surprising, given the ill-defined nature of Litigation, 2007 Mich. St. L. Rev. 941, 952. A public nuisance this tort. The common law of public nuisance arose in twelfth- action brought by a private party who experienced “special century England as a criminal writ, brought by a sovereign to damage,” however, was concerned with compensating for harm, protect the exercise of rights common to his subjects. Over the not enjoining conduct. Even with this evolution in the law of centuries, the criminal writ evolved into a civil cause of action public nuisance, only the sovereign can seek to enjoin conduct aimed at protecting from “unreasonable interference” rights subject to the sovereign’s police powers. See Bigelow v. Virginia, common to the public. 421 U.S. 809, 824 (1975). From its inception, this cause of action was grounded in the What is unreasonable interference with a public right sovereign’s police powers, for “[t]o regulate and abate nuisances involves a quintessential policy judgment, exercised historically is one of” a state’s “ordinary functions” under its police pow- by courts of equity. Even in the modern common law state, as ers. Nw. Fertilizing Co. v. Village of Hyde Park, 97 U.S. 659, 667 Justice Harlan observed, “the power . exists in courts of equity (1878). Our constitutional system left intact, to the extent not to protect the public against injury.” Mugler v. Kansas, 123 U.S. otherwise delegated or prohibited to the states, state police 623, 673 (1887). And there lies the modern dilemma. power to enjoin conduct that unreasonably interferes with Before the era of social legislation, courts of equity filled an rights common to the state’s citizens. See Rhode Island v. Massa- important void in the social compact with broad authority (albeit chusetts, 37 U.S. 657, 720 (1938) (States are “sovereign within exercised with restraint) to protect the public against injury. As their respective boundaries, save that portion of power which the tort of public nuisance evolved over the centuries, the sov- they have granted to the federal government, and foreign to ereign (i.e., the state) exercised discretion to identify rights to be each other for all but federal purposes.”); U.S. Const. Amend. protected (e.g., unrestricted access to public roads or waterways), X (“The powers not delegated to the United States by the Con- and the judiciary sitting in equity balanced competing interests to stitution nor prohibited by it to the States, are reserved to the determine whether the targeted activity “unreasonably inter- States respectively, or to the people.”). fered” with the public right. In the modern administrative state, As a manifestation of a state’s preserved police powers, the those social policy decisions are the province of the political tort of public nuisance historically provided a cause of action for branches of government. As a competing method for making the state as sovereign to protect public rights of its own citizens, social policy, the tort of public nuisance has evolved into what and within its own territory. Mayor, Alderman and Commonality Justice Blackmun called an “impenetrable jungle” where “one of NY v. Miln, 36 U.S. 102, 139 (1837) (“operation of police searches in vain . for anything resembling a principle.” Lucas v. powers” is “within the territorial limits of the state, and upon S.C. Coastal Council, 505 U.S. 1003, 1055 (1992) (Blackmun, J., persons and things within its jurisdiction.”). This was reinforced dissenting). Given the current superstructure of federal and state by the criminal law antecedents of the public nuisance writ, legislation and regulation, what is the role of “public nuisance” in for it is axiomatic that “[t]he Courts of no country execute the the modern administrative state? penal laws of another.” The Antelope, 23 U.S. 66, 123 (1825). Reflecting these principles, state statutes have often explicitly Federal vs. State Sovereignty Mr. Brownell heads the administrative law group of Hunton & Williams, There is a long history of state common law public nui- LLP, in Washington, D.C., and co-chairs its environmental law section. sance actions brought by states in state courts to protect their He may be reached at [email protected]. citizens. The role of federal courts in our constitutional system 34 NR&E Spring 2010 Published in Natural Resources & Environment, Volume 24, Number 4, Spring 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. is different from that of state courts. As courts of limited ju- satisfaction of the court, federal common law is not displaced). risdiction, federal courts do not create or expand causes of ac- This narrow role for federal common law is compelled not tion. See, e.g., St. Paul Fire & Marine Ins. Co. v. Jacobson, 48 only by separation of powers principles, but also by the nature F.3d 778, 783 (4th Cir. 1995) (Federal courts “rule upon state of the public nuisance cause of action itself. As an instrument law as it exists and do not surmise or suggest its expansion.”). for making social policy, public nuisance actions should be Rather, when a state common law cause of action is brought treated with restraint by the judiciary. As Justice Harlan ob- in federal court, the federal court must apply the law of the served, even before the advent of the modern administrative state that would have applied had the action been filed in state, the authority of a federal court sitting in equity to pro- state court. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). If tect the public from injury was one “not frequently exercised.” the federal court has difficulty discerning the legal principles See Mugler, 123 U.S. at 673. the state court would apply, it may certify the question to the highest court of the state to ensure that it is correctly applying the state’s law. See, e.g., Lehman Brothers v. Schein, 416 U.S. Limits Arising from Federal Statutory Law 386, 390–91 (1974). As a limited, gap-filling exercise, federal common law (to Given that the common law of public nuisance is founded in the extent it exists) is readily displaced through action by the state police powers, an action in federal court by citizens of one federal political branches. Because the Constitution preserves state to address a nuisance activity undertaken in a foreign state to the states their preexisting police powers, however, state by the residents of that other state raises additional questions. common law is subject to a different analysis. Because state common law of public nuisance provides no cause The federal government regulates extensively in the field of of action to address interstate pollution, the Supreme Court in environmental pollution, having enacted comprehensive pro- the last century discovered a limited “federal” common law of grams addressing air pollution, water pollution, and solid and public nuisance to address interstate pollution at a time when hazardous waste management, among others. The decisions of there were no federal laws addressing such interstate concerns. the federal political branches in these enactments should not Missouri v. Illinois, 180 U.S. 208, 241 (1901). As the Court be subject to second-guessing under the guise of state common later observed, “[i]f state law can be applied, there is no need for law. As the Supreme Court explained in International Paper v. federal common law; if federal common law exists, it is because Ouellette, the state common law of public nuisance is pre- state law cannot be used.” City of Milwaukee v. Illinois, 451 U.S. empted by a comprehensive federal statutory program (in that 304, 314 n.7 (1981) (Milwaukee II). case, the Clean Water Act), unless specifically preserved by Given that the federal common law of interstate pollution the federal statute. 479 U.S. 481, 499 n. 20 (1987). was a gap-filling exercise, intended only to provide a remedy In environmental legislation, Congress has been sensitive for those limited matters not addressed by state common law to the role of states on issues that have traditionally fallen or by the federal political branches of government, the federal within the scope of state police power. For this reason, federal public nuisance cause of action—if it even continues to exist environmental statutes typically preserve the right of states to in the modern administrative state—was always narrow.
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