neacsu, dana1/28/2018 For Educational Use Only 64 Def. Couns. J. 99 Defense Counsel Journal January, 1997 Ezra M. Holczer Copyright (c) 1997 by the International Association of Defense Counsel; Ezra M. Holczer
Damages, conventional injunctions and compensated injunctions do not provide the proper equities to polluters and the victims
A QUARTER of a century ago in the landmark case of Boomer v. Atlantic Cement Co.,1 the New York Court of Appeals held that permanent damages could be awarded in lieu of an injunction in a private nuisance action. Although the holding wasn’t particularly ground breaking, Boomer is considered the premier nuisance case in American jurisprudence, and it set off a tidal wave of legal commentary on the advantages and disadvantages of various nuisance remedies.
Courts and legal scholars interpret the concept of nuisance in many different ways and in many different contexts, making it difficult to define nuisance concretely.2 An oft-quoted statement that typifies the mystique of nuisance law in the United States is from Prosser: “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance.”3 The variety of underlying theories of liability for the tort of nuisance has induced courts and commentators to use the word “nuisance” as a catch-all term, leading to the ongoing spiral of confusion.4
The term often is used without distinguishing between two very distinct actions-the action of a possessor of land to protect the land, known as a “private nuisance,” on the one hand, and on the other hand, an action brought to protect the public interest from dangers to health, safety, morality, comfort or convenience, known as a “public nuisance.”5 Although the distinctions between the two still are laid out dutifully by modern scholars, it is frequently suggested that the differences are ambiguous or “relevant today only in theory.”6 Judicial opinions do not always distinguish between public and private nuisances when delineating the elements of a “nuisance” cause of action.7 It also is possible *100 to have a nuisance that is both public and private in character, known as a mixed or united nuisance.8 To add to the turmoil, a public nuisance can support both criminal and tort actions under certain circumstances, and this is termed a “public nuisance tort.”9
Perhaps the greatest area of legal debate after Boomer concerned the ideal remedy for private nuisance actions. Remedies that have been advanced include the conventional injunction, damages, and the “compensated injunction.” A partial or experimental injunction, however, consistently would be the most equitable solution for all the parties involved in a private nuisance action. Courts should apply these types of injunctions more often.
HISTORICAL ANALYSIS A private nuisance arises from an injury to the use and enjoyment of land that is essentially private in character and that affects a limited number of persons.10 Actions for private nuisance date as far back as the 12th century.11 The word “nuisance” is derived from the Latin nocumentum, which was incorporated into the French “nuisance.”12Nocumentum is a medieval Latin word meaning loss, damage or detriment, while “nuisance” is French for hurtful, injurious or prejudicial.13 Nuisance was distinguished from disseisin in English law in that the plaintiff was not dispossessed, and trespass in that there was no entry: the defendant’s acts occurred outside the plaintiff’s land.14
After several centuries of different remedies, by the 17th century, trespass on the case became the standard remedy for a private nuisance.15 However, trespass on the case had one principal disadvantage: abatement was not available; the sole remedy was monetary damages.16 Abatement was available only from the courts of equity, which developed equitable principles from those utilized for nuisance cases in the common law courts. The separate development of nuisance law in the common law and equity courts was a source of confusion, especially because the equity courts often did not closely observe the technical labels and distinctions exercised by the law courts. Nevertheless, the action on the case for nuisance, following the maxim of sic utere tuo, ut alienum non laedas (use your own property in such a manner as not to injure that of another) became the progenitor of the law of private nuisance as it stands today.17
With very few exceptions, American courts adhered to the sic utere tuo rule through the Civil War. Nevertheless, scholars have suggested that the courts subtly restricted the rule’s application through a variety of subsidiary doctrines that limited the impact of private nuisance law on economic development.18
*101 THEN CAME BOOMER Boomer, a 1970 New York Court of Appeals decision, is perhaps the quintessential nuisance case in the United States, as well as one of the most-taught cases in American legal education.19 What made Boomer novel, at least to New York, was the court’s award of damages, rather than the traditional injunction, after it determined that a nuisance was present. Boomer happened just as the “great wave of environmentalism” swept the country in the 1970s,20 and the case has only become more relevant over time as the debate between economics and environmental values continues.
The facts in Boomer exemplify the classic struggle between the small homeowner and the giant corporation. The Atlantic Cement Co. began to construct a facility in 1961 in an unzoned area. Soon after construction began, the site was zoned “heavy industrial.” By the time Atlantic commenced its operations, it had invested more than $40 million in the plant, including the most effective available pollution controls. In addition, the plant complied with New York state air pollution regulations. All the plaintiffs owned and inhabited their properties before the ground-breaking for the plant.
Atlantic’s quarry consisted of some 1,544 acres, and the company normally employed 400 people, with annual wages of about $3 million in 1965 dollars. Atlantic paid a quarter of the property taxes and a third of the school taxes in the township. The assessed value of the company was about half the assessed value of the township.
The facility’s impact on its neighbors was nothing short of drastic. Oscar and June Boomer, for instance, owned an automobile junkyard, one of several small businesses in the area. Boomer hoped that his two sons would carry on the family business, but the continuance of the business was threatened by the vibrations and heavy dust emanating from the facility.
The trial judge found that the plaintiffs had established a nuisance, but he refused to issue an injunction because of Atlantic’s “immense investment in the Hudson River Valley, its contribution to the Capital District’s economy and its immediate help to the education of the children in the Town of Coeymans through the payment of substantial sums in school and property taxes.”21
The Appellate Division affirmed in a brief opinion. It found no abuse of discretion in the refusal of an injunction, taking into account “the zoning of the area, the large number of persons employed by the defendant, its extensive business operations and substantial investment in plant and equipment, its use of the most modern and efficient devices to prevent offensive emissions and discharges, and its payment of substantial sums of real property and school taxes.”22
The Court of Appeals began its review by noting that the nature of this private litigation should be distinguished from the public’s interest in controlling air pollution, and it went on to conclude that Atlantic Cement should be allowed to avoid an injunction by paying the plaintiffs “such permanent damages as may be fixed by the court.” Although the court agreed with the lower courts’ decision to deny an injunction, it reversed on the amount of damages awarded to the plaintiffs, granting an amount nearly four times greater than the lower courts awarded.
*102 The Boomer decision declined to follow the long-standing New York Court of Appeals decision of Whalen v. Union Bag & Paper Co.,23 although it did not expressly overrule it. In Whalen, a 1913 case, a pulp mill that represented more than a million dollars in investments and employed more than 400 operatives polluted a stream in which the plaintiff, who owned a farm, was a lower riparian owner. Although there was a marked disparity in economic consequence between the effect of the injunction and the effect of the nuisance, the court in Whalen nevertheless held that an injunction was the proper remedy.
Judge Werner noted: Although the damage to the plaintiff may be slight as compared with the defendant’s expense of abating the nuisance, that is not a good reason for refusing an injunction. Neither courts of equity nor law can be guided by such a rule, for if followed to its logical conclusion it would deprive the poor litigant of his little property by giving it to those already rich.... The weight of authority is against allowing a balancing of injury as a means of determining the propriety of issuing an injunction.24
Thus, the rule laid down in Whalen, which faithfully followed the New York rule at that time,25 and which was followed in later decisions,26 was that whenever the damage resulting from a nuisance is found not “unsubstantial,” an injunction would follow. Boomer simply declined to follow this rule because of the “drastic” consequences of closing the plant.
In a bitter dissent in Boomer, Judge Jasen argued that the court should have followed existing precedent and awarded an injunction, which he proposed to postpone for 18 months to allow Atlantic to abate the nuisance. Of course, this also is an unusual form of relief. Judge Jasen read the majority opinion as creating a license to pollute and allowing the taking of an easement by Atlantic as if it were a government authority exercising powers of eminent domain.
The majority rejected Judge Jasen’s proposal that Atlantic be given 18 months to abate the nuisance, because there was no reason to believe that new technology would be forthcoming in that time: The parties could settle this private litigation at any time if defendant paid enough money and the imminent threat of closing the plant would build up the pressure on defendant. If there were no improved techniques found, there would inevitably be applications to the court at Special Term for extensions of time to perform on showing of good faith efforts to find such techniques.... For obvious reasons the rate of the research is beyond the control of defendant. If at the end of 18 months the whole industry has not found a technical solution, a court would be hard put to close down this one cement plant if due regard be given to equitable principles.27
The court felt that proper research could occur only if the world-wide cement industry pooled its resources, an undertaking the court felt was not feasible.
BOOMER AND NUISANCE REMEDIES Before Boomer, New York courts understood nuisance law to include two possible outcomes. One was a classic injunction when there was any substantial interference with the use and enjoyment of the land of another. The other was no remedy at all. The first compelled the polluter to adjourn operations, or “pay off” the victim to allow continuation of the nuisance. This placed the victim in a position of immense power. The second left the “victim” with no hope for recourse, unless he could convince the polluter to accept payment to abate the alleged nuisance.28
This limited choice of remedies often put *103 courts in a compromising position. Sometimes courts did not want to put a plaintiff in a position to close a large plant or extract big gains from the defendant. Before Boomer, a court faced with such a situation would have felt compelled simply to find no nuisance at all.
Thus, Boomer gave courts the option to grant relief to the wronged plaintiff without necessarily enjoining the polluter’s business operations. Although scholars have suggested that courts as early as the 19th century provided precedents for the Boomer remedy,29 one commentator has suggested that Boomer was responsible for shifting the balancing of the equities test to the question of whether or not an injunction should be issued.30
Most scholars today would assert that there are four theoretical outcomes for nuisance litigation, short of securing a public official’s action.
A. No Remedy The plaintiff loses and receives no assistance from the courts.31 The only possible remedy is to attempt to “bribe” the polluter to stop polluting. This is tantamount to paying people sitting near you in a theater to stop talking.
B. Compensated Injunctions The victim obtains an injunction abating the nuisance but must compensate the polluter for the losses incurred from the injunction. This remedy has strong scholarly support,32 but appears to have been adopted only once.
In Spur Industries v. Del E. Webb Development Co.33 Spur and its predecessors had operated a feedlot for more than 15 years in a rural area. Del Webb began to plan a residential development in the area a few years after Spur commenced operations. With the expansion of the feedlot and the growth of the residential community, residents began to be bothered by odors and flies stemming from the feedlot, despite the facility’s admittedly good housekeeping and management. In a suit brought by Del Webb, the trial court held that a nuisance existed and issued an injunction against Spur.
On appeal, the Arizona Supreme Court upheld the trial court’s finding that the feedlot was both a public and private nuisance. But it also ruled that the developer had selected the area for development and therefore had “come to the nuisance,” which would have barred any relief, injunction or otherwise, had the developer been the only party injured.34 Because inhabitants had moved into the development, the court held that the protection of the rights and interests of these people warranted the issuance of a permanent injunction, even though the plaintiff was barred from relief on equitable grounds.
The court further ruled that Webb’s entitlement to the injunction did not necessarily free it from liability to Spur if Webb had been the cause of the damage to Spur. Therefore, the court held that “Webb must indemnify Spur for a reasonable amount of the cost of moving or shutting down,” and it remanded the case to the trial court for a hearing on the damages sustained by Spur *104 as a “reasonable and direct result” of the granting of a permanent injunction.
Like Boomer, Spur has become one of the leading nuisance cases cited in text-books and law reviews,35 although it is the only reported decision to employ the compensated injunction remedy in civil litigation. It seems unlikely, however, that the Spur court would have applied the compensated injunction remedy to the facts of Boomer. Spur deals with the indemnification of the defendant because the plaintiff “came to the nuisance.” In Boomer, the plaintiffs already were present when Atlantic began to build its cement plant. Furthermore, it would have been illogical in Boomer for the plaintiffs, who appeared to be the only parties affected by the nuisance, to indemnify Atlantic for the harm an injunction would have caused Atlantic as a result of the plaintiffs’ suit.
C. Damages The third possible remedy is damages under a “liability rule.” The victims receive compensation for the harm they suffer, but an injunction is not granted. This is the essentially the remedy employed in Boomer. Commentators like the Boomer decision because the court granted an injunction that was to be vacated on payment by the defendants of permanent damages to be set by the lower court, rather than a simple award of damages. In cases where there is a simple award of damages, the defendant’s wrongful conduct may well proceed for an extended period without the damages being paid. By tying the defendant’s right to continue the nuisance to the timely payment of damages, an injunction terminable on the defendant’s payment of damages makes the collection of damages, or the cessation of the nuisance, far more expeditious.
D. Conventional Injunctions The fourth outcome is the conventional injunction under a “property rule.” The victims have the right to abate the nuisance. This puts the polluter in the position of “bribing” the victim for the right to pollute, thus settling the lawsuit.36 Most courts have held that to enjoin a nuisance, it must appear that the recovery of damages at law will not be adequate.37 However, because equity regards every tract of land as unique, it considers that damages are not adequate where the land’s usefulness is seriously impaired.38 Even the possibility that the defendant’s act, if continued, may ripen into prescription has been regarded by some courts as enough to make the injury irreparable and to justify relief by injunction.39
One distinguishing feature of an injunction is that it may be granted on the threat of harm that has not yet occurred. The defendant may be restrained from engaging in an activity where it is highly probable that it will lead to a nuisance, although if the possibility is merely uncertain or contingent, the appropriate remedy may be damages until after the nuisance has occurred.40
DAMAGES VERSUS INJUNCTIONS Particularly since the Boomer decision, property scholars overwhelmingly have stated that damages are superior to the permanent injunction as a remedy for private *105 nuisances.41 One reason for this trend is that justice seems to require compensating people for harms actually endured, while treating an injunction as the primary nuisance remedy sometimes does not accomplished that objective. A damage remedy forces the polluter to consider the damage done through the operation of the plant causing the nuisance, without compelling the defendant to forfeit an exorbitant share of profits. Damages also allow the court to avoid the balancing of the equities test at the level of “was there a nuisance?” Relief can be provided without the closure of a business that has great utility.
Proponents of the damage remedy underscore the peril of an inefficient injunction. Professor Rabin believes that abatement of the activity should result whenever the cost of abatement is less than the plaintiff’s damages, and the defendant should pay damages whenever the cost of abatement exceeds the plaintiff’s damages.42 There also is a tendency to favor damages over injunctions because damages are better able to achieve the efficient outcome by avoiding strategic behavior and to promote the desired distributional outcome by avoiding extortion and allowing business payments.43 Damages also solve the problem of buying out an injunction from a large number of plaintiffs through the avoidance of high transaction costs incurred when a defendant successfully negotiates the relinquishment of a plaintiff’s right to an inefficient injunction, and other plaintiff holdouts seek more money.44
Of course, there is always the concern that permanent damages will fail to monetize future health damages or fail to encourage further efforts to abate the nuisance. Two possible solutions to this dilemma are pollution servitudes and damages for a period of time instead of in perpetuity.45 However, judging from the large damage award granted by the Boomer trial court on remand, which took into account more than the drop in market value of the plaintiffs’ properties, perhaps plaintiffs can be properly monetized through damage payments.46
There also are advantages to injunctions. An injunctive remedy upholds the dignity of the victims as members of the community. Rather than allowing the polluter to invade the rights of its neighbors whenever it is willing to pay for the harm, it gives the neighbors some control over the situation. Should the polluter wish to continue its operations, it must go to the victims and bargain with them as equals.47
Injunctions also remove from the courtroom the setting of a price for plaintiffs’ damages, saving both time and money, although that cost may show up in the price of the product that the defendant markets.48 Moreover, nuisance damages are inherently undercompensatory. If they are based on the decline in property values, they fail to compensate plaintiffs for subjective personal and psychological losses or for immeasurable harms to the environment and the quality of life. Often, no compensation is paid by defendants because no actions *106 are brought with respect to damages that are spread among many victims or the public at large. If court-awarded nuisance damages are consistently less than the actual harm imposed by the offensive activities, then exclusive reliance on damage remedies would necessarily lead to inefficiency. An injunction bypasses the risk that a court will underestimate plaintiffs’ true damages, including such intangibles as future health and quality of life.49
Giving victims a right to an injunction does not necessarily mean that the facility causing the nuisance will be forced to close. For example, if the damages to the victims total $100,000, and the facility, an aluminum reduction plant, generates $750,000 in profits, the plant would pay up to $750,000 to the victims to prevent a shutdown. Presumably, the parties would settle for a figure somewhere between $100,000 and $750,000, which would leave the parties better off than they would be with an injunction.50
CASE AGAINST COMPENSATED INJUNCTIONS AND DAMAGES In choosing a remedy for a Boomer-like case, it is difficult to balance hardships and equities and still come up with a remedy that is considered “fair” by the parties. Consider the “compensated injunction,” wherein the victim may obtain an injunction to abate the nuisance but must compensate the polluter for the losses caused by the injunction. While legal scholars may find this remedy equitable, in a situation like Boomer it is morally unacceptable, because it requires the victim to pay for a return to the status quo. Homeowners should be allowed to live in the relative peace and harmony one expects to encounter in a sylvan community without having to pay for the privilege. A compensated injunction cannot be considered an “equitable” remedy when the parties-a polluter responsible for the nuisance and the victims of the nuisance-are not of identical status. Transferring wealth from victims to polluters is tantamount to rewarding polluters for invading the rights of their neighbors.51 This is similar to a reward for theft.52
Particularly where the victims resided in the area before the polluter arrived, such as in Boomer, paying off the polluter would only add insult to injury. Even Professor Ellickson, a leading advocate of compensated injunctions, acknowledges that a standard injunction is more appropriate where “the plaintiff’s personal safety or fundamental freedom of action within his boundaries has been or will be critically curtailed by the defendant’s activity.”53
An award of damages to the victim also is inadequate. Society certainly would not be satisfied with an award of damages if Atlantic had dumped waste on the Boomers’ property; the emission of dust, smoke, noise and vibrations should be no different. A damage remedy is no different from allowing a private right of eminent domain, as long as compensation is paid to the victims. Although public eminent domain has the same effect, it has a greater claim to legitimacy because the land is taken as a result of a democratic process that professes to represent the interest of the landowner as well as general society.54
While damage awards may compensate for the victim’s economic losses, they do not recompense the more fundamental injury to the victim’s dignity as a member of the community. Aside from the formal law of property, an informal set of understandings *107 about neighborliness regulates the day-to-day interactions of landowners.55
A CALL FOR PARTIAL AND EXPERIMENTAL INJUNCTIONS Both compensated injunctions and damage awards shortchange victims of nuisance, and conventional injunctions may give savvy plaintiffs too much power. We should look to the advantages of the partial and experimental injunction,56 also known as an experimental order, for use in Boomer-like cases.
A. Partial Injunctions Some courts, rather than choosing between a conventional injunction and no injunction, have issued partial injunctions, particularly where considerable productive operations are involved. Through the partial injunction, the court will order certain changes in the operation of the facility causing the damage in order to minimize the nuisance. For example, operations of a noisy plant will not be enjoined, but its nocturnal uses will be limited.57 An airport may be allowed to continue operations with an injunction limited to the kind of planes flying and the type of flight plan.58 An offending factory may be allowed to continue its operations if much of the offense can be limited by enjoining its use of soft coal,59 or by requiring installation of machinery to protect against offensive dust.60
It would appear that the conventional injunction could accomplish the same thing by telling the defendant to stop operating the facility in such an unreasonable manner as to interfere with the reasonable comfort and enjoyment of the plaintiff.61 However, such an injunction is undesirable because it may force the defendant to discontinue operating the plant altogether, or risk a contempt charge if good faith efforts to comply do not work.62
B. Experimental Orders Another desirable result of a balancing of the equities is the experimental order. A court reluctant to let a destructive nuisance continue, but also reluctant to abort a productive enterprise, may well order or agree to experimentation. For example, a court might order or allow the defendant to try new means of limiting or avoiding the offensive qualities of the operation and provide for periodic reports to the court or to a master. If, on examination of the case at hand, this approach is practical and does not to deeply involve the court in the operation of a business, it may well afford an appropriate remedy in a case in which it otherwise would be difficult to balance the equities.
A classic example of the experimental injunction occurred in a series of U.S. Supreme Court cases in which Georgia sued to abate an air pollution nuisance emanating from the Tennessee Copper Co.’s smelting of copper ores.63 The Court concluded that an injunction must be ordered if Georgia insisted, but decided to allow the defendants a reasonable amount of time to complete efforts already begun to halt *108 the objectionable fumes. Tennessee Copper successfully reduced the sulphur dioxide emission into the air by more than 50 percent, but Georgia still sought the injunction.
The Court, to gain more accurate figures, ordered certain daily records to be kept and appointed a competent inspector. Finally, on the basis of the inspector’s report and records kept in compliance with the order, the Court issued a limited injunction regulating the amount of gases that could be permitted to escape. Apparently this method not only resulted in reduced gases but also prompted the evolution of sulphuric acid.64
The experimental approach is obviously a limited one, perhaps best used where the defendant’s enterprise is a very large one or the damage serious enough to warrant the cost and supervision involved. There also is the potential risk that courts will become involved in non-judicial functions. Nevertheless, an approach of this sort has been accepted by some courts.65
C. Boomer and Partial and Experimental Injunctions On examination of Boomer, either a partial injunction or an experimental order would have been a more equitable remedy than damages, a conventional injunction, or a compensated injunction. It is not in a court’s best interest to enjoin a $45 million operation that employs more than 300 workers, especially when harm to the plaintiffs is generously estimated at slightly more than $700,000. Nor should damages be the remedy because the harm to the plaintiffs was substantial and their property rights were violated. Comparably, a compensated injunction would require the plaintiffs to pay for the right to maintain the status quo.
A partial injunction in Boomer might have acted as an effective curb to a significant part of the nuisance, at least to the point of eliminating the harm complained of by the plaintiffs, without substantially impairing Atlantic’s operations. For example, the court could have enjoined the most damaging activities of the plant, or it could have limited the amount of blasting. Special times and intervals could have been set by the court when blasting would be allowed.
Of course, the court would have to analyze each plaintiff’s and Atlantic’s relevant information to calculate a suitable partial injunction properly. However, the court will not have to spend much extra time or money making these determinations, because the Boomer court already weighed many of these factors when it applied its balance of the equities test. A partial injunction in Boomer, if correctly ascertained, would have an effect very similar to a conventional injunction from the plaintiffs’ point of view, without substantially handicapping an enterprise valuable to the community at large.
An experimental injunction would be even more appropriate for the Boomers. The court could order or allow Atlantic to try various methods for reducing or eliminating the nuisance, and it might direct Atlantic to provide periodic reports to the court or to an inspector appointed by the court. The court would grant Atlantic a reasonable amount of time to complete the efforts it already had begun to eliminate the nuisance. Daily records could be kept by the inspector to help the court gain more accurate figures. Ultimately, based on the inspector’s reports, the court could issue a limited injunction regulating the amount of blasting Atlantic could do, satisfying the victims without severely impairing Atlantic’s activities.
*109 Judge Jasen may have been alluding to the experimental order in his dissent. He called for an injunction to stop Atlantic from continuing to discharge dust particles on its neighbors’ property unless, “within 18 months, the cement company abated this nuisance.” He did not outline, however, that the court could work closely with Atlantic, checking on progress made and designating inspectors to monitor progress. The majority opinion expressed dissatisfaction with the dissent’s proposal, particularly the rigidity of a fixed time period for abatement to take place, as well as the assumption that new technology was unlikely to be developed in the 18-month period.
Both these problems would have been properly addressed had the dissent advanced a proposal for an experimental order. The essence of the experimental order is not to set strict predetermined deadlines for the cessation of the nuisance. Rather, the court must regularly supervise the progress being made by Atlantic over an extended period of time. Newly developed technology would be only one of several factors taken into consideration in deciding whether Atlantic was making progress in abating the harmful effects of the nuisance.
CONCLUSION In Boomer-like nuisance cases, courts will find it difficult to fashion an equitable remedy. To enjoin permanently a nuisance that is attached to a productive enterprise to the community, both through employment and economic growth, is to take the easy way out of a complex conundrum. To award damages is a court’s subtle way of saying that it is legitimizing the nuisance. Compensated injunctions are even more problematic because the community loses the facility’s economic benefits, while the victims suffer the insult of paying the defendant for living conditions that were present before the polluter came.
Through the use of partial and experimental injunctions, the courts should take a more active role in resolving large-scale nuisance disputes. The rights of property owners should first and foremost be protected, but often a permanent injunction will not be necessary to abate the nuisance. A reasonable amount of time should be given to the polluter to correct the nuisance, and a court appointed inspector should monitor progress. If the polluter does not appear to be making good faith efforts to abate the nuisance, a conventional injunction should be issued, and the court need not concern itself with the defendant’s trying to “bribe” the victims by buying out the lawsuit. Even if the polluter is making good faith efforts, the court could decide at some later point that there is no possibility, or no more time, for progress, and could issue the conventional injunction.
While the partial and experimental injunction might not always lead to a satisfactory solution, it consistently would prove to be more equitable than other remedies, particularly in today’s modern world, where courts can continuously monitor polluters without difficulty, and new technology is constantly being developed.