Tuesday, July 8, 2014

Dysfunctional Sewer Systems and the Law of Nuisance

-- fifth in a series about stormwater and sewers --

Neither Lake St. Clair nor the western basin of Lake Erie ever became the cesspool into which Boston Harbor had degenerated by the early 1980s.

The deplorable condition of the harbor is described in Prof. (Harvard Law) Charles Haar’s memoir recalling his days as special master in litigation grappling with more than a century of neglect.  The book’s title is Mastering Boston Harbor (Harvard University Press, 2005).

Haar writes that everything you can imagine going into toilets washed up on the beaches of metropolitan Boston.  As more and more equipment broke down, dumping millions of gallons of raw sewage into Boston Harbor became routine.

Sewage plumes rising to the water’s surface could be seen close up or from the air.  The smell was awful.  Large swaths of the harbor’s bottom were covered in life-suffocating glop that scientists referred to as “black mayonnaise.”

Aided by a form of judge shopping (hey, what can I say, this is Boston we’re talking about), municipal officials in Quincy, Massachusetts brought suit in state court.  Disgusted by what he’d seen on a Quincy beach one morning, the city attorney organized and spearheaded the city’s foray into a legal tempest.  The presiding judge was a stalwart reformer.

The city’s complaint against various local agencies operating the region’s sewage system alleged violations of four Massachusetts statutes and, more fundamentally, asserted common law nuisance.

Haar’s discussion of the law of nuisance is both lucid and instructive (pp. 40-47).  Excerpts:

“The black-letter statement is that the law of nuisance can be used to terminate a “noxious use” or avert a “public harm” that unreasonably interferes with the lives or property of the general public…” (p.44)

“The doctrines of the law of nuisance go back to the twelfth century.  And so the equitable remedy of an injunction against a public nuisance, one of the earliest milestones in English common law, has been used in a host of British and American judicial decisions.  Owing to its amorphous parameters -- and the flexibility it provides -- defining the law of nuisance is a never-ending task for judges in state courts… It has been applied with considerable openness to new uses and types of regulation.” (pp.44, 45)

“Nuisance law is a matter of state, rather than federal, law.  And as it has been developed by the states it is flexible and evolving, always subject to interpretation and expansion or contraction -- with a consequent reluctance of courts to find it preempted by federal action.” (p.45)

“The truly exciting aspect of nuisance law is that it is not frozen in the concerns of a past period, but over the centuries has been reinterpreted in the light of contemporary learning and fresh understandings, reflecting technological advances, newly perceived hazards, and pressing societal changes.” (p.46)

In less than two years, the parties to the suit, working together under a rigid, court-imposed schedule, laid the foundation for the mammoth reorganization and clean-up that ensued.

Under the umbrella of nuisance theory, those seeking clean water can disregard inter-jurisdictional squabbling and finger-pointing among state, regional, county and local officials; name all parties in any way associated with misconduct or neglect causing environmental damage; and ask the court to order abatement of the nuisance.

No task for the faint of heart, but essential, perhaps, if we’re going to preserve our natural heritage in the waters of southeast Michigan.

Thanks to Saul Simoliunas for recommending Haar’s book.

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