Interference With Property Rights

When many people think of environmental law, they think of the statutes that our legislators have written: the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, CERCLA (a.k.a., the “Superfund” statute), and so on. These statutes, and the agencies that enforce them, do indeed play a central role in the landscape of modern environmental law. However, long before our legislators began to enact environmental protection statutes, the law of environmental protection existed. It existed in the common law of England, which was inherited by the American colonies. A person whose property was being polluted by his neighbor could not complain to an environmental enforcement agency, because there was no such thing; rather, his recourse was to a court, where he could sue to stop the pollution, and to recover damages. His cause of action was called trespass or nuisance.

These ancient causes of action are as viable today as ever, but they are underused. The existence of environmental protection statutes and environmental enforcement agencies has made the public complacent. It has conditioned victims of pollution to assume that government alone can be relied upon to rescue them. This is a mistaken assumption. While it is important and necessary to inform relevant governmental agencies whenever one’s property is impacted by pollution, these agencies are generally not designed or inclined to vindicate your private property rights. The only way to obtain full redress for pollution of private property—that is, not only to stop the pollution, but to be compensated for your damage—is to take the polluter to court, under a legal theory such as trespass or nuisance. These theories are a particular area of interest for Attorney Vander Salm, who has used them extensively to win relief for clients.