26 Pages Posted: 16 Nov 2012
Date Written: 1989
This Article reviews the evolution of public nuisance law since the 1972 article by Bryson and Macbeth and focuses on two issues: 1) the evolution of the traditional special injury rule into a two-pronged doctrine of standing (injury-in-fact) and proximate cause, and 2) the viability of public nuisance actions in light of existing environmental statutes. The first section of Part I analyzes the reasons why the traditional policies supporting the special injury rule are no longer valid. The second section reviews a number of cases involving actions for damages where the courts, at least implicitly, have not applied the special injury rule to limit standing, then it analyzes how courts have dealt with the rule in equitable and class actions. Part II discusses the relationship between the public nuisance doctrine and state and federal environmental statutes.
The Article concludes that, in litigation concerning serious environmental or toxic issues, some courts have accepted public nuisance claims, even though they have not explicitly rejected the special injury rule. It advocates that courts take the final step and reject the special injury rule outright, because private plaintiffs must not be barred at the courthouse door by an outdated special injury rule if public nuisance claims are to fill statutory gaps and help establish standards of reasonable conduct.
Keywords: public nuisance, environmental law, special injury rule, pollution
JEL Classification: K32
Suggested Citation: Suggested Citation
Hodas, David, Private Actions for Public Nuisance: Common Law Citizen Suits for Relief from Environmental Harm (1989). Ecology Law Quarterly, Vol. 16, 1989. Available at SSRN: https://ssrn.com/abstract=2146902