Friday, November 14, 2014

Nuisance injunctions

The Journal of Environmental Law has a review by Patrick Bishop of Ben Pontin's Nuisance and Environmental Protection - A Study of Nuisance Injunctions in Practice (Lawtext, 2013) (Ben blogged here about the book and his related work last summer.) Bishop writes:
This book’s aim is succinctly stated from the outset, namely to examine: ‘what nuisance law is with reference to what it does in practice, in circumstances where a claimant is awarded an injunction to restrain ongoing pollution’ (p 1). Pontin posits various nomenclatures to describe his methodology, ‘realist’, ‘law-in-action’ or ‘law-in-context’ (p 3), but in essence the approach adopted is contextual.... The intention is to elucidate the socio-economic and environmental impact of nuisance injunctions by the study of materials extraneous to the law reports; in summary this book intends to broaden and enhance our understanding of nuisance by considering ‘what happened next’.
...the introduction provides a discussion of the main theories relating to the effect of the grant of an injunction. The author identifies four hypotheses gleaned from the literature. First, the idea that the grant of an injunction is likely to result in the closure of the defendant’s polluting exercise (the closure theory). Secondly, it will simulate thinking and investment into new modes of business in a manner which eliminates or at least reduces pollution to acceptable (non-actionable) levels (the clean-up theory). Thirdly, there is the possibility that an injunction might force the defendant to relocate its place of business to an alternative area where the nature of the locality is such that the polluting activity would not constitute an actionable nuisance (relocation theory). Finally, the parties might enter into a post injunction bargain, whereby the claimant is paid to move on or waive their legal rights as suggested by Ronald Coase in his ground-breaking work, ‘The Problem of Social Cost’, (Coase theorem). Thus, while it is Pontin’s intention to produce a text of practical significance, useful to potential litigants as well as lawyers and academics, the discussion of each of the four cases is grounded in theory and the outcome of each case study is judged against the four hypotheses identified. 
Across the cases, the emphasis of the contextual discussion varies considerably; the chapter discussing Attorney General v Birmingham Corporation (1858–1895) focuses on the life and career of the claimant, Sir Charles Adderley. While he has faded into relative obscurity, Adderley is described by Pontin as a figure comparable to Rachel Carson and Gro Harlem Brundtland for his contribution to the enactment of the Public Health Act 1875 (p 59). In contrast, the claimant in Halsey v Esso Petroleum Ltd (1961–1972) is given scant attention and instead the background discussion is concentrated on national economic policy. The focus of each chapter is presumably shaped by the available archival material: it is safe to assume that the life of a former parliamentarian and cabinet minister (Adderley) has been recorded in considerably more depth than that of a Fulham van driver (Halsey). Regardless of the differing emphasis of each chapter, the contextual discussion is fascinating and more importantly, it is always enlightening.
The conclusion to each case study returns to the four hypotheses identified in the introduction. Of these, only the closure theory is discredited; the post-injunction investigation reveals that in none of the four cases was the defendant forced out of business. There is evidence, to a greater or lesser extent, to support the clean-up theory (Birmingham and Halsey), the relocation theory (Tipping v St Helens Smelting Co Ltd (1863-1884) and eventually Halsey) and in Farnworth v Manchester Corporation (1928–1930), the parties entered into a Coasian bargain, albeit that an agreement was reached after 40 years of negotiation! Significantly, in each case the injunction was suspended, thereby providing the defendant with the necessary time to find an alternative to outright closure. As Pontin notes: ‘The costs to industry were bearable, and indeed in each case the defendant had a choice as to compliance. Thus, the law afforded them a measure of flexibility’ (p 167). 
The final chapter engages in a more general analysis of the law of nuisance as a method of environmental protection, albeit the discussion is consistently set in the context of the preceding case studies. It is apparent that Pontin generally subscribes to the view that even in a regulatory era nuisance remains a ‘well-honed environmental sword’.2 His enthusiasm is obvious from the discussion of two seminal cases generally seen as limiting the scope of nuisance, namely Cambridge Water v Eastern Counties Leather [1994] and Hunter v Canary Wharf Ltd [1997]. The reasonable foresight of damage requirement established in Cambridge Water would not have hindered the claimant’s chance of success in any of the four cases considered, on the basis in Pontin’s view that the ‘ongoing injury from an ongoing activity’ being ‘obviously (perhaps even inherently) foreseeable’ (p 174). While this conclusion is entirely tenable, the assessment of the restrictive standing requirement reaffirmed in Hunter is considerably more controversial. Here the author suggests that the necessity to demonstrate a proprietary (and exceptionally a possessory) interest in land as a locus standi requirement is entirely defensible, even desirable, as a means of facilitating both pre and post-litigation negotiations. Further, it is argued that the grant of an injunction should be reserved only for those claimants with an enduring proprietary interest so as to create a realistic prospect of enforcing that remedy (p 169). Throughout the text, it is apparent that Pontin considers multi-generational attachments to land to be important but this alone fails to answer questions as to why only those with proprietary interests are considered especially reliable guardians of the environment. Additionally, the concept of a multi-generational attachment to land seems to hark back to a bygone era that bears little resemblance to patterns of modern-day land ownership. If nuisance is at its most effective as a tool in the hands of such land owners, then it will surely only ever play a peripheral role in environmental protection. 

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