The Misunderstood Law of Public Nuisance: A Comparison with Private Nuisance Twenty Years After Boomer
R.A.V. Washington, Albany Law Review (1990), 54:359
neacsu, dana1/28/2018 For Educational Use Only 54 Alb. L. Rev. 359 Albany Law Review 1990 Symposium on Nuisance Law: Twenty Years After Boomer v. Atlantic Cement Co. Robert Abramsa Val Washington Copyright 1990 by the Albany Law School; Robert Abrams and Val Washington
I. INTRODUCTION The law of nuisance has long been noted for the confusion that marks so many decisions rendered under its rubric. The elements of the two nuisance causes of action--public nuisance and private nuisance--have certainly changed over several hundred years of history, yet in any given era and jurisdiction the rules remain extremely elusive.1 The rules regarding remedies for nuisance are equally ephemeral. Thus we have Dean Prosser’s famous description of nuisance as an “impenetrable jungle.”2
Perhaps it is the confusion surrounding nuisance law that gives Boomer v. Atlantic Cement Co.3 its importance, since the case presents such a clear, if not entirely novel, statement regarding appropriate remedy. The decision has been widely praised by academics.4 Although *360 its jurisprudential importance may be somewhat overstated,5 its clarity rings like a bell in a fog, providing a ready point of reference for students of the law of nuisance. This referential quality alone gives a case significance in an area of law that “straddles the legal universe, virtually defies synthesis, and generates case law to suit every taste.”6
It must be emphasized, however, that Boomer was a private nuisance case, and, by failing to confine explicitly the application of its decision to private nuisance,7 the Boomer court may have further befogged the law.
Boomer advanced the proposition that a finding of nuisance does not establish a right to injunctive relief in the form of an abatement of the nuisance; rather, when the abatement would exact a cost from the defendant disproportionate to the harm alleged, a court may award permanent damages in lieu of an injunction.8 This decision by New York’s highest court brought New York into conformity with the majority of other states.9 Yet, more than any other single case, it is Boomer that is cited as representing the modernization of the law of nuisance.10 The time was ripe for the Boomer doctrine. If courts of equity are to continue to “do equity,” time-honored common law rules must eventually yield to modern realities. After all, the great pride of the common law is its ability to adapt. Although Boomer has contributed to the modernization of the law of private nuisance, it also may have added to the general lack of understanding of the law of public nuisance by failing to distinguish between the two causes of action.
Public nuisance and private nuisance had distinct beginnings in English common law,11 although today they are frequently merged in common parlance as simply “nuisance.” Even though the distinctions between the two are still dutifully set forth by modern scholars, they *361 frequently suggest that the differences are largely anomalous or relevant today only in theory.12 When the two causes of action are discussed and compared, it is usually with reference to a treatment of the law of private nuisance.13 Few scholars have given much attention to the subject of public nuisance alone.14 Yet the law of public nuisance, which is as old as the law of private nuisance,15 enjoys today a vitality perhaps greater than that associated with its related cause of action. Moreover, the differences between the two bodies of law remain important in contemporary jurisprudence, particularly in the area of environmental law.
In reflecting upon the Boomer decision on its twentieth anniversary, it may be time to reexamine the differences between public and private nuisance, and to assess whether the reform represented by Boomer in the context of private nuisance is appropriate for public nuisance. The facts of Boomer will serve these tasks because the case against the Atlantic Cement Company could arguably have been brought as a public nuisance action by either the New York State Attorney General or the plaintiffs themselves. Moreover, had the case been brought as a public nuisance, the result might well have been different.
II. THE HISTORICAL PERSPECTIVE Public nuisance, originally “common” nuisance,16 was mentioned as early as the thirteenth century in accounts of obstructions that interfered with rights of the general public to the use of certain land, interferences which could be remedied by the sheriff or in a hundred *362 court.17 The action was criminal in nature and prosecuted by the sheriff, or later by the attorney general.18 Most often it was used against those who interfered with a public right of way, or ran “noisome trades,”19 but its flexibility became apparent in the varied activities prosecuted under its name over the years: digging up a wall of a church, helping a “homicidal maniac” to escape, being a common scold, keeping a tiger in a pen next to a highway, leaving a mutilated corpse on a doorstep, selling rotten meat, embezzling public funds, keeping treasure trove, and subdividing houses which “‘become hurtful to the place by overpestering it with poor.”’20 A century-old definition of common nuisance stated that the offense includes any “‘act not warranted by law, or omission to discharge a legal duty, which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.”’21 In effect, authority for an action in public nuisance derived from what is now known as the sovereign’s police power and not from tort law.
In contrast, private nuisance is a tort cause of action that began in the early days of the common law as a remedy for a freeholder who was interfered with in the use of his land, but not dispossessed.22 By the seventeenth century, this tort cause of action had acquired its modern and broader definition as an interference with the use and enjoyment of land.23
In addition to the shared name, a further reason for the historical confusion between public and private nuisance was a change in the law in the sixteenth century allowing private citizens to bring an action on the case for public nuisance.24 Previously, defendants in *363 private tort actions often succeeded in having cases dismissed with the defense that, although a private individual may in fact be harmed, the defendant’s activities also affected the rights of the public at large. Thus the common law court was without jurisdiction; any action against the offensive activities had to be brought, if at all, in the criminal courts as a public nuisance action.25 To ameliorate the injustice of this defense, the courts created an exception allowing the plaintiff who had suffered “special damage”26 from a public nuisance to seek redress, and in doing so, “ensured that judges in civil cases continued to talk about common nuisance.”27 Thus, a private litigant might--and still may--bring an action in public nuisance. Despite the nomenclature, however, this private right of action is very different from the public nuisance action brought by the sovereign, and deserves a different name. To avoid confusion here, this hybrid nuisance action shall be referred to as a public nuisance tort.28
III. THE MODERN DIFFERENCES BETWEEN PUBLIC AND PRIVATE NUISANCE While public nuisance has been said to be “an entirely different concept from that of a private nuisance,”29 the differences are also said to be “fast disappearing.”30 In some cases, courts have superimposed--wrongly, *364 we will argue here--the elements of a cause of action in private nuisance on the law of public nuisance.31
It is generally agreed, however, that public nuisance differs from private nuisance in the following ways: 1. Public nuisance does not necessarily involve an interference with the private enjoyment of private property; rather the interference is with a public right, usually relating to public health and safety or substantial inconvenience or annoyance to the public.32
2. The interest affected by a public nuisance must be shared by the general public, although this concept is stated and interpreted in various ways.33
3. Public nuisance actions are brought by a government official with the jurisdiction and authority to represent the public at large, while private nuisance actions are brought by private individuals suffering an interference in the enjoyment *365 of their private property.34 The exception, of course, is the right of a private citizen to bring an action against a public nuisance if special damages can be shown--the public nuisance tort.35
Some writers have stated that a distinguishing characteristic of public nuisance is that it is a crime.36 Even the Restatement (Second) of Torts, in Tentative Draft No. 16, proposed to perpetuate this oftrepeated definition.37 Public nuisance, however, is frequently brought as a civil action, either pursuant to the common law38 or to statute; to the extent that public nuisance is still a crime, it is codified by statute and does not exist in the common law.39
*366 Hence, repetition of obsolete black letter law in scholarly works and court dicta40 has obscured the evolution of the law of public nuisance. As a civil action, for example, the courts have not required proof of criminal mental states for a finding of public nuisance. Rather, they properly view liability as strict,41 or apply the fault requirements of private nuisance.42 Moreover, public nuisance is an equitable doctrine pursuant to which a court is asked to restrain particular activities, while criminal law is concerned with penalties.43 Although some courts still define public nuisance as a crime,44 the concept of criminality ultimately was dropped from the Restatement (Second), which now defines a public nuisance as “an unreasonable interference with a right common to the general public.”45
*367 Beyond these widely acknowledged differences between public and private nuisance,46 the standard of liability and the appropriate remedies for each cause of action must be distinguished in other critical ways. These less frequently discussed differences, and their relevance to the public nuisance tort action, are the subjects of the remainder of this Article.
A. Finding of Liability--The Concept of Fault Judicial opinions do not always distinguish between public and private nuisance when outlining the elements of a cause of action in “nuisance.”47 The same can be said of scholarly opinion. Thus, regardless of the type of nuisance action brought, a plaintiff is sometimes said to have to prove fault by showing either intentional or negligent conduct on the part of the defendant or that the defendant engaged in ultrahazardous activity, justifying the imposition of strict liability.48 The Restatement perpetuates the improper imposition of traditional fault concepts on the law of public nuisance. Section 822 sets forth the general rule of liability for private nuisance, stating that the defendant’s invasion must be either “(a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.”49 The comment following section 822 states that, “[s]ubject to the exceptions created by . . . statutes . . . the tort law of public nuisance is consistent with this Section.”50 Unfortunately, the comment fails to distinguish or clearly address the public nuisance action as an exercise of the state’s police power, thus implying that public nuisance is always treated as the tort of *368 the same name.51 The reporter’s comment following the definition of public nuisance in section 821B(1) attempts to support the Restatement position as a logical consequence of the historical evolution of the concept of nuisance: [A]s the tort action came into the picture, the use of the single word “nuisance” to describe both the public and the private nuisance, led to the application in public nuisance cases, both criminal and civil, of an analysis substantially similar to that employed for the tort action for private nuisance. . . . Thus, by analogy to the rules stated in § 822, the defendant is held liable for a public nuisance if his interference with the public right was intentional or was unintentional and otherwise actionable under the principles controlling liability for negligent or reckless conduct or for abnormally dangerous activities. Liability was not normally imposed for a pure accident that did not fall into one of the three traditional categories of tort liability.52
The comment suggests, however, that liability may hinge on the unreasonableness of the defendant’s activity “[i]f a defendant’s conduct in interfering with a public right does not come within one of the traditional categories of the common law crime of public nuisance . . . . ”53 The Restatement’s analysis in this regard is unnecessarily confusing and does little to help sort out the differing elements of public and private nuisance.
In the case of public nuisance, the application of fault principles is certainly erroneous; the standard of liability in a public nuisance action is strict.54
Both public nuisance and private nuisance are generally defined in terms of the offense resulting from an activity, rather than the *369 activity itself.55 Stated another way, “[u]nlike most other torts, [nuisance] is not centrally concerned with the nature of the conduct causing the damage, but with the nature and relative importance of the interests interfered with or invaded.”56 In that light, discussion of whether the offending party acted intentionally or negligently is beside the point.
This perspective is reflected in the way modern courts employ the concept of intentional conduct in private nuisance cases. Where the defendant’s intentional conduct is the basis for liability, it is not necessary for the plaintiff to prove that the defendant intends to offend, but only that the defendant knows that his activities are offensive.57 A strict liability standard may also be imposed if it is found that the defendant is engaged in an “abnormally dangerous” or “ultrahazardous activity.”58 This finding thereby avoids the awkward *370 fault analysis altogether. A few modern courts have explicitly rejected the concept of fault in a private nuisance action,59 and there may be a trend developing in that direction.60
As far as public nuisance is concerned, the fault analysis makes even less sense and leading cases indicate that liability is always strict.61 The public should not be made to suffer an unreasonable interference with its rights merely because the entity responsible for the interference is acting nonnegligently and without bad intent. Moreover, the concept of strict liability attaching to activities where a public right is invaded or threatened is embodied in a state’s police power to protect the health and safety of citizens.62 As the court explained in National Wood Preservers, Inc. v. Commonwealth,63 “[t]he notion of fault is least functional, however, when balancing the interests of a property holder against the interests of a state in the exercise of its police power, because the beneficiary is not an individual but the community.”64
A recent Second Circuit case out of New York exemplifies the proper analysis and finding of strict liability in a public nuisance case. In New York v. Shore Realty Corp.,65 the New York State Attorney General, on behalf of the state, sued a Long Island developer to abate a public nuisance in the form of tanks in which hazardous wastes were stored. The defendant had not created the nuisance condition, but had purchased the property for a land development *371 project knowing that it contained the hazardous waste.66 The court was clear and emphatic in its finding of a nuisance--“[w]e have no doubt that the release or threat of release of hazardous waste into the environment unreasonably infringes upon a public right and thus is a public nuisance as a matter of New York law . . . ”67--and held that “Shore, as a landowner, is subject to liability for either a public or private nuisance on its property upon learning of the nuisance and having a reasonable opportunity to abate it.”68 The court distinguished between the two causes of action, however, stating that “[p]ublic and private nuisance bear little relationship to each other. Although some rules apply to both, other rules apply to one but not the other.”69 Thus, the court held that “Shore is liable for maintenance of a public nuisance irrespective of negligence or fault.”70
It is possible to analogize the facts of Shore Realty to those situations in which courts have grounded their finding of strict liability in private nuisance actions upon the defendant’s performance of an abnormally dangerous activity.71 Although the court in Shore Realty made a clear attempt to distinguish between private and public nuisance in regard to “negligence or fault,” it added some confusion by concluding that the lower court could also have found “as a matter of law that Shore’s maintenance of the site--for example, allowing corroding tanks to hold hundreds of thousands of gallons of hazardous waste--constitutes abnormally dangerous activity and thus constitutes a public nuisance.”72 The court refers to this as an “alternative theor[y].”73 But why would a court ever need to rely on an abnormally dangerous activity basis for liability if, indeed, liability is strict once a public nuisance is found?
While helping to clarify the law to some degree, Shore Realty is typical of public nuisance cases in its mingling of private and public nuisance rules. Any confusion, however, over the question whether strict liability may be based only on an abnormally dangerous activity is resolved in other cases in which liability for public nuisance is *372 found to be strict.74 For while many of the modern public nuisance cases involve hazardous wastes,75 they derive their authority from judicial opinions in which liability is strictly imposed without a finding of an ultrahazardous activity.
In one of the rare scholarly efforts to differentiate the law of public nuisance from private nuisance, Professor Halper has discussed at length Commonwealth v. Barnes & Tucker Co.,76 a case which, like Boomer in the area of private nuisance remedies, is a symbol of clarity on the issue of strict liability for public nuisance.77 The defendant in Barnes & Tucker had closed a mine after many years of operation under a valid state permit.78 Subsequently the mine filled with groundwater which, after becoming acidified in the mine, then flowed into the Susquehanna River at the rate of over a million gallons per day.79 The State of Pennsylvania sued, alleging that the pollution of the river constituted a public nuisance, and sought an injunction requiring the former mine operator to treat the water coming from the mine.80 The trial court found no negligence or unlawful conduct or, for that matter, any “present activity . . . directly producing the deleterious result,” and therefore no public nuisance.81 The Pennsylvania Supreme Court, finding statutory violations, reversed.82 In the interest of clarifying the law of nuisance,83 the court went on to find liability under a public nuisance theory: The absence of facts supporting concepts of negligence, foreseeability or unlawful conduct is not in the least fatal to a finding of the existence of a common law public nuisance. The assumption that such might be the case is “based upon an *373 entirely mistaken emphasis upon what the defendant has done rather than the result which has followed . . . . ”84 Thus, Barnes & Tucker provides clear support from another jurisdiction for the holding in Shore Realty that the standard of liability in a public nuisance action is strict.
The Shore Realty decision also followed New York’s own established law of public nuisance. Although the older New York decisions are not as explicit as Barnes & Tucker or Shore Realty, New York courts have historically required no finding of negligence, intentional conduct, or an ultrahazardous activity in assigning liability for a public nuisance--the decisions carry with them the assumption that liability is strict.85
For example, in People v. Rubenfeld,86 a criminal public nuisance case decided in 1930 under New York Penal Law section 1530,87 a three-story building, leased for weddings, dances and other parties that carried on into the late-night hours, was determined by the New York Court of Appeals to be a public nuisance.88 The opinion, written by Chief Judge Cardozo, made no mention of fault on the part of the defendant; rather, Chief Judge Cardozo stated that the “tumult” created by the presence of the offending building was “so great . . . as to be a plague to a whole neighborhood.”89 The New York Penal Law has since been amended to include in its definition of second degree criminal nuisance a requirement that the activity complained of be maintained “knowingly or recklessly.”90 The notes accompanying the proposed and subsequently enacted section of this law make clear that the drafters were concerned about the “distinctly civil flavor” *374 of prosecutions for public nuisance, a problem “accentuated by the fact that ‘public nuisance,’ as presently defined and construed, requires little if any criminal intent, being virtually a crime of absolute liability . . . . ”91
In the purely civil cases strict liability has been the rule. In State v. Waterloo Stock Car Raceway,92 an automobile racetrack and its attendant “roar” were held to be a public nuisance, with no explicit discussion of fault.93 The court required only that the interference with the community be “material” and unreasonable.94 The court in State v. Schenectady Chemicals, Inc.95 was somewhat more explicit when it stated that the fact that a manufacturer may have complied with the latest industry standards is no defense to an action to abate a nuisance since . . . with respect to public nuisances and inherently dangerous activities, fault is not an issue, the inquiry being limited to whether the condition created, not the conduct creating it, is causing damage to the public.96
B. Finding a Nuisance--Reasonableness and Balancing For both private and public nuisance, the interference with the plaintiff’s rights--private property rights in private nuisance, and public rights in public nuisance--must be both substantial and unreasonable.97 A substantial interference will not be found if the harm complained of is trivial.98 However, the harm need not even be actual if the threat of harm is great enough.99 Substantiality of the interference *375 is perhaps the least controversial element of a nuisance action since the concept, though it may be controversial as applied to the facts of a given case, is simple and usually not arguable in theory. In contrast, the issue of the reasonableness of the defendant’s activity is the subject of much litigation and even more scholarly discourse.100
The Restatement in section 821B(2) lists the following factors as indicators of unreasonableness in the case of public nuisance: (a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or
(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.101 As the comments to this section indicate, the list is not meant to be exclusive; the drafters did not want to “set restrictions against developments” in the law.102
The first reasonableness factor is descriptive of the classic situations that have been found to be public nuisances, in which the conduct involves interference with “‘the public in the exercise of rights common to all, in a manner such as to offend public morals, interfere with the use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons.”’103
The second reasonableness factor in the Restatement, section 821B(2)(b), restates the widely accepted rule that a violation of a *376 statute constitutes a nuisance per se.104 Violation of a statute, ordinance or regulation is a clear indication of unreasonableness, and the Restatement acknowledges that liability should be strict when the conduct of the defendant in a nuisance case otherwise constitutes a violation of law.105
The third factor acknowledges that the “continuing nature” of an activity, producing “a permanent or long-lasting effect,” should be a factor indicating the existence of a public nuisance, but the point is confused by the requirement that “the actor knows or has reason to know” that the conduct “has a significant effect upon the public right.”106 Whether the actor has knowledge that the activity in question has an effect on a public right, much less a significant effect, should not be a consideration in a finding of nuisance. The Restatement comment indicates that knowledge may carry less weight in the awarding of an injunction, although it does not explain why.107 The comment is particularly confusing since the Restatement otherwise uses knowledge as an element of a cause of action in nuisance.108 The issue is not one that is likely to be litigated, however, since it is hard to imagine a continuing activity producing a permanent and significant effect on a public right, under section 821B(2)(c) of the Restatement, that is not also conduct involving a significant interference with public health, safety, peace, comfort or convenience under section 821B(2)(a).
However, the analysis does not end there. Awkwardly enough, the tests for unreasonableness found in section 826 of the Restatement, which expressly apply to private nuisances based on intentional conduct, are also said to apply to public nuisances.109 This unnecessarily adds to the confusion surrounding the distinctions between public and private nuisance. Section 826 lists two indicia of unreasonableness. The section states that: *377 An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if
(a) the gravity of the harm outweighs the utility of the actor’s conduct, or
(b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.110
While section 826(a) constitutes the controversial “balancing of the utilities” test,111 section 826(b), as Professor Lewin explains,112 constitutes an unwieldy attempt to provide a more plaintiff-oriented standard. Since this standard anticipates the payment of compensation to the plaintiff, it is not generally applicable to public nuisance actions. Public nuisance calls for abatement, and abatement almost invariably takes the form of an injunction and not damages.113
The balancing of the utilities test is also problematic. In his excellent discussion of the Restatement’s doctrine of balancing the utilities, Professor Lewin questions its use in private nuisance cases. Unlike other compensation principles also adopted by the Restatement, he argues, the doctrine fails to take into consideration the severity of harm to the plaintiff.114 Its use is questionable in public nuisance cases as well. If a public right is being substantially violated, the utility of the defendant’s conduct may certainly be a factor to be considered--particularly if the utility redounds to the benefit of the public at large--but it should not be given the weight awarded by the Restatement. That is, the utility of the defendant’s conduct should not be used to avoid a finding of nuisance based on a comparison with the harm to the public.115 In the first place, such balancing is truly impractical in that a public nuisance does not necessarily involve quantifiable harm. In environmental cases, for example, the *378 right to breathe clean air,116 the right to be free of offensive odors,117 the right to clean waterways118 and the right to be free from potentially detrimental health effects119 are not readily amenable to comparative assessment. Nor should they be seen by the courts as amenities which can be sacrificed for the benefits associated with a worthy private enterprise.
This is particularly true because the plaintiff in a public nuisance case is the sovereign. The sovereign has a special responsibility in protecting the public interest, a responsibility that does not ordinarily allow for the kind of compromise represented by a balancing that may otherwise be regarded as equitable in private disputes. The Supreme Court held as much in a 1907 public nuisance case brought by the State of Georgia against a Tennessee smelter responsible for air pollution that caused damage in the plaintiff state.120 Speaking for the Court, Justice Holmes stated that “[the state] has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”121 He then explicitly rejected a balancing of the state’s interest against the utility of the defendants’ conduct: this court has not quite the same freedom to balance the harm that will be done by an injunction against that of which the plaintiff complains, that it would have in deciding between two subjects of a single political power. Without excluding the considerations that equity always takes into account, we cannot give the weight that was given them in argument to a comparison between the damage threatened to the plaintiff and the calamity of a possible stop to the defendants’ business . . . .122
Thus, the Restatement’s balancing of the utilities test in section 826 should not be viewed as relevant in cases of public nuisance; rather, the list of reasonableness factors found in section 821B of the Restatement should be regarded as the appropriate reflection of the law of public nuisance as interpreted by the courts.
*379 C. The Remedy--Injunctions and Balancing Boomer is regularly cited for the proposition that a finding of nuisance does not automatically warrant an injunction and that damages may be an appropriate remedy in certain circumstances.123 When public rights are at issue, however, the damage remedy is simply not meaningful. Unless another remedy is specifically provided for by statute, the appropriate remedy in a civil public nuisance case is an injunction.124
The Restatement implicitly recognizes this important point in section 821C, entitled “Who Can Recover for Public Nuisance.” Subsection (1) describes the circumstance of the public nuisance tort125 in which a private plaintiff seeks “to recover damages in an individual action for public nuisance.”126 The individual must be suffering harm “of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.”127
Subsection (2) then sets forth the standing requirements for those who wish to “maintain a proceeding to enjoin or abate a public nuisance.”128 The list includes individuals described in subsection (1) (those suffering special harm), individuals having “authority as a public official or public agency to represent the state or a political subdivision in the matter,” or individuals having “standing to sue as a representative of the general public, as a citizen in a citizen’s action or as a member of a class in a class action.”129 For all but the first category of plaintiff, damages are not at issue, and the Restatement does not contemplate the possibility of a public entity seeking anything other than injunctive relief.130
*380 In none of the previously cited public nuisance cases, with the exception of Waterloo Stock Car Raceway,131 were damages even discussed. In Waterloo Stock Car Raceway, the court properly issued an injunction, albeit justified with a rationale that was somewhat confused by the Boomer precedent. The court stated: As the Court of Appeals indicated in Boomer v. Atlantic Cement Co., an injunction is a drastic remedy which a court must carefully consider before issuing. This court has been most circumspect in pondering on its issuance but has concluded that it is the only appropriate remedy under the circumstances. Unlike Boomer, there is no vast disparity in economic consequence between the use of an injunction and the injury caused by the nuisance. . . . No sound reason mitigates against the issuance of an injunction in this instance.132
The court expounded no further on the “circumstances” in which it concluded that an injunction “is the only remedy.”133 Certainly one circumstance is that the action was brought on behalf of the public, and not on behalf of a private litigant or a group of private litigants for whom appropriate redress might well have been damages under the Boomer decision. It simply would not have been workable to award damages to an entire community. Nor would justice have been served by allowing the raceway to purchase the right to annoy the public in perpetuity. The fact that the price might well have been too high for the defendant, forcing it to close anyway, does not in itself justify the imposition of an injunction. The justification for the injunction in Waterloo Stock Car Raceway was that the court was dealing with rights common to the public at large and not with private property rights.
Ironically, although the holding in Boomer is simply not applicable in the context of public nuisance, it does provide an excellent justification for treating public nuisance differently from private nuisance when the issue is one of remedy. Without explicitly mentioning the law of public nuisance, the court in Boomer stated: The nuisance complained of by these plaintiffs may have other public or private consequences, but these particular parties are the only ones who have sought remedies and the judgment proposed will fully redress them. The limitation of *381 relief granted is a limitation only within the four corners of these actions and does not foreclose public health or other public agencies from seeking proper relief in a proper court.134
In fact, it has been said that “[t]he importance of the Boomer case rests on the articulation of the rationale for a more restrictive attitude on the granting of injunctions, and the greater reliance on public, rather than private, vindication of primarily public interests.”135 Public nuisance is indeed one of the most adaptable and appropriate means for the protection of public interests. In public nuisance cases, injunctions remain the practical and appropriate remedy for providing vindication of those public interests.
A related point in need of clarification is that the doctrine of balancing the utilities should play no role in the granting of a remedy in a public nuisance case. In a private nuisance case, once a nuisance is found, an appropriate remedy can be based on a variety of equitable considerations. A balancing of the utilities is frequently and appropriately invoked at this point and not, as the Restatement would have it, at the finding of liability.136Boomer is a good example of this; the extreme imbalance between the harm to the plaintiff and the utility of the defendant’s activity did not prevent the court from finding liability for the nuisance. Rather, the utility of the defendant’s activity was responsible for the court’s divergence from precedent in awarding damages rather than an injunction.137 In a public nuisance case, however, once the nuisance has been found, the remedy necessarily follows: abatement of the nuisance. There is no occasion for balancing.138 This rule was endorsed by Justice Holmes in Georgia v. Tennessee Copper: *382 If the State has a [public nuisance] case at all, it is somewhat more certainly entitled to specific relief than a private party might be. It is not lightly to be required to give up quasisovereign rights for pay; and, apart from the difficulty of valuing such rights in money, if that be its choice it may insist that an infraction of them shall be stopped.139
Justice Holmes’ point is all the more persuasive because, in a previous case not specifically mentioned by the Court but involving the same smelter, the Supreme Court of Tennessee denied the plaintiff farm owners an injunction and instead awarded damages for a private nuisance.140 Before awarding damages to the plaintiffs, the court described the importance of the defendant’s “ore roasting” operation as a necessary part of the manufacture of copper, and also noted the hundreds of thousands of dollars invested in the plant and the hundreds of people employed there.141 The court then balanced the utility of the defendant’s activity against the resulting damage to the plaintiffs’ crops, forests and health, and found that the defendant’s operation was too valuable to shut down, even though the court viewed the damage to the plaintiffs as substantial.142 Yet, three years later, the United States Supreme Court did not consider the value of the same plant relevant when the plaintiff was a sovereign representing the public interest.143
Thus, the result in Boomer might well have been different had the action been brought on behalf of the public, rather than by private plaintiffs.
*383 IV. BOOMER AND PUBLIC NUISANCE Although the Boomer courts spoke generally of nuisance law, clearly the case sounds in private nuisance; the plaintiffs were private individuals and there was no discussion of special damages which would indicate a recognition of a public nuisance tort apart from private nuisance.
The trial court provided little discussion of its finding that “the plaintiffs have sustained the burden of proof that Atlantic in the operation of its cement plant . . . created a nuisance insofar as the lands of the plaintiffs are concerned.”144 Neither the intermediate appeals court nor the state’s high court analyzed how the elements of the cause of action were met.145 Rather, the analyses in the decisions focused on the remedy. Both appellate courts employed a balancing of the utilities test to deny the plaintiffs a permanent injunction.146 It was, however, the court of appeals that explicitly reversed legal precedent. The court examined the equities and rejected the then current rule of Whalen v. Union Bag & Paper Co.,147 which would have mandated an injunction despite the great disparity between the cost of abating the nuisance and the damages alleged by the plaintiffs.148
Would the court of appeals have resolved the matter in the same way had the case been brought under a public nuisance theory? The answer depends largely on who brought the action. In New York, the attorney general has authority to represent the general public as *384parens patriae pursuant to common law principles.149 Normally, a public nuisance case results from complaints from the public about a nuisance condition, subject to the attorney general’s independent assessment whether a public nuisance exists. Such an assessment of the allegations concerning the Atlantic Cement plant may well have led to a determination by the attorney general that there existed a sufficient factual basis to support a public nuisance complaint under the following analysis.
Although an aggregate of private nuisances is sometimes said not to constitute a public nuisance,150 the better-reasoned case law151 and scholarly opinion suggest otherwise.152 In any event, it is generally *385 held that a public nuisance may be found when an entire community is suffering from the same interference.153 One question, then, is whether there is an interference with a “public right” to be free from offensive odors, dust and noise when, as in Boomer, only a small group of families is affected.154 The plaintiffs in the eight separate actions joined in the Boomer case may have comprised only the most vocal of the neighbors offended by the dust and soot from the Atlantic Cement plant. It is possible that many more people were affected by the noise and pollution, but were prevented from becoming plaintiffs by the cost of litigation155 or by business or employment connections with the company. Further inquiry might have justified a conclusion that an entire community, albeit rural and sparsely populated, suffered from the dust, odors and vibrations emanating from the cement company.156
Assuming a public right was adversely affected by the Atlantic Cement plant, a finding that the interference was substantial157 and *386 unreasonable would still be necessary. If the intrusion suffered by Mr. Boomer was typical of that suffered by the entire community, a finding of public nuisance would have been justified. Evidence that the plant’s emissions had an adverse impact on health, as alluded to in Judge Jasen’s dissent,158 would strengthen the case for public nuisance.159 Should the court thus find that the interference with the public right was substantial and unreasonable, the result would necessarily follow that the Atlantic Cement Company would have to abate the nuisance through improved operations or, if unable or unwilling to do so, close the plant.
This result is based upon a hypothetical public nuisance case brought by the attorney general or another public official.160 Would a private citizen have benefitted from the same rules that apply to a public nuisance action brought by a public official? Had Mr. Boomer pleaded his case as a public nuisance tort, would he have been entitled to an injunction?
To bring a private action for the invasion of a public right, a private plaintiff would have to show “special” damages or harm different from that experienced by the larger community, in addition to establishing the other elements of public nuisance.161 In deciding *387 what constitutes the requisite “special” or “particular” damage, the jungle, in Dean Prosser’s metaphor,162 becomes especially dense. For example, it is frequently stated that the difference in harm to the private individual from that to the public must be in kind rather than degree;163 some courts, however, have held that the damage may be of the same kind if the harm to the plaintiff exceeds that to the public by a sufficiently large degree.164 Nevertheless, when a public nuisance interferes with the use and enjoyment of an individual’s private property, that interference should always constitute special damages.165 Mr. Boomer had a viable private nuisance action, thus obviating the need for further assessment of his right to bring a public nuisance tort action. Mr. Boomer would have had standing to bring an action in public nuisance as well as private nuisance.
The next question is whether Mr. Boomer, or another citizen granted standing upon a showing of special damages, would have been entitled to benefit from the differences between the public and private *388 nuisance causes of action. Is the definition of public nuisance the same when it is a private tort action as when it is brought as a police power action? Would a private plaintiff with special damages have a right to relief on a strict liability basis simply by bringing a public nuisance action so long as he or she proves that a public right is being violated? Should an injunction necessarily issue upon a finding of nuisance?166
It would be illogical to conclude that a mere change in pleading should dictate a drastic difference in burdens of proof or result, and that by merely framing a complaint in terms of public as well as private nuisance Mr. Boomer would have had an absolute right to an injunction. Rather, the answer should depend on whether a private plaintiff such as Mr. Boomer truly represents the public interest as a “private attorney general,” with reference to the public right asserted.167 Some writers have noted that the dispute between Mr. Boomer and the Atlantic Cement Company did not necessarily account for all of the interests of the public at large.168 Mr. Boomer’s interest related primarily to the value of his property, not to the general health and well-being of the larger community. As the author of a recent comment has observed, “in trying to limit the number of suits *389 by individuals representing the general public, the special injury rule actually requires that these representatives be as unrepresentative of the public as possible.”169 Thus, a court could not be confident, in the way it might be had the attorney general brought the action, that the public at large was truly represented by Mr. Boomer. Another writer has explained the difference in the context of environmental nuisance cases as follows: The vigor of public nuisance enforcement by state officials, as opposed to private parties, is ultimately a function of the political process, and to the extent that this process reflects the diverse and legitimately conflicting interests involved in every environmental controversy it may produce the most equitable resolution of environmental questions.170
Thus, so long as a court has the flexibility to grant appropriate damages instead of an injunction, the mere labeling of a tort action as a public nuisance, as opposed to or in addition to a private nuisance, has no great consequence. If, however, the only remedy for public nuisance is an injunction without distinction between tort actions and actions brought on behalf of the sovereign, a court confronted with a private plaintiff would likely require a stronger showing that the plaintiff indeed represented the larger public interest before a public nuisance was found. Logically, a private citizen whose interest in the litigation arises solely from having incurred special--and private--damages should not be regarded as equivalent to the public official who brings an action in public nuisance.171
*390 Without specifically analyzing the public nuisance tort in this manner, the courts invariably and properly treat the plaintiffs in these actions like private nuisance plaintiffs and not like public representatives asserting a claim in vindication of public rights.172 Thus, we have case law in which claims characterized by courts as public nuisances are nevertheless analyzed in a manner different from that appropriate for true public nuisance actions. It is no wonder that there is so much confusion and so little understanding of public nuisance.
In short, under the Boomer facts the attorney general or other official representative might have been successful in obtaining an injunction under a public nuisance theory, while the Boomer plaintiffs themselves would not have benefitted from an amendment of their pleadings incorporating a public nuisance cause of action.
One conclusion that must be drawn from this analysis is that the private tort of public nuisance is misnamed. In the tort cases a public nuisance exists but the interest of the plaintiff is private. The cause of action asserted bears no more resemblance to public nuisance than does the tort of private nuisance. As a consequence, the shared name further confuses an already badly confused area of law. Two possible *391 solutions come to mind. The most obvious is to devise a new name for the tort action, a name that explains itself so as not to entangle further the “impenetrable jungle.”173 “Private tort for public nuisance,” or some variation of this, tells the story but may be unwieldy. A less obvious but perhaps more easily accomplished solution would be to expand the definition of private nuisance. Such a definition would encompass both interferences with the use and enjoyment of property and private damages resulting from public nuisances. In all other respects, the tort of public nuisance already looks very much like that of private nuisance. To the extent that the law is not ready to abandon the special damage rule, courts could still require that a plaintiff alleging a private nuisance experience a harm different from that experienced by the general public in those cases where a public nuisance also exists.
V. THE ROLE OF PUBLIC NUISANCE IN MODERN JURISPRUDENCE It has been suggested that the law of public nuisance may not be as relevant today as it once was. Some writers assert that, to the extent misunderstanding exists, it matters little because the role of public nuisance is very limited and ever-diminishing.174 Closer analysis, however, reveals the tremendous vitality of public nuisance in modern times because of its great flexibility and adaptability, particularly in the area of environmental protection.
Prior to the days of powerful and comprehensive federal and state environmental statutes--which have come into existence only in the last two decades--nuisance was a useful, if limited tool for the control of pollution.175 Even after the passage of major environmental *392 laws,176 but before the enactment of statutes in the late 1970s and early 1980s directly addressing the disposal of hazardous waste, public nuisance frequently offered the only remedy to secure the cleanup of toxic dumps.
We, as a nation, only recently became aware of the environmental and health hazards posed by one of the more insidious legacies of the post-war industrial era--buried hazardous waste. As the site of the country’s most famous dumpsite, Love Canal, New York State was at the forefront in the search for appropriate remedies for contamination from such sites. While the legislature worked toward the passage of new laws to mandate and enforce the proper disposal of hazardous waste and the cleanup of old hazardous waste sites, New York Attorney General Robert Abrams came to office and directed research into possible causes of action against the Hooker Chemical and Plastics Corporation (“Hooker”), now the Occidental Chemical Corporation, to force the company that had created the Love Canal dump177 to clean it up. Because there were no federal or state statutes providing a remedy, a complaint was filed alleging that the Love Canal site, and its leaching of dangerous chemicals, constituted a public nuisance for which Hooker was responsible. This theory was subsequently applied in many other cases brought by the attorney general and, by the time the Love Canal court addressed the issue, New York’s public nuisance claims relating to toxic dumpsites had passed judicial muster in both state and federal courts.178 In 1989, the United States District Court for the Western District of New *393 York179 granted New York State’s motion for partial summary judgment on public nuisance grounds in the Love Canal case,180 holding that the case presented a “compelling set of facts and circumstances for finding the existence of a public nuisance . . . . ”181
Since commencement of the Love Canal litigation, remedies for the cleanup of hazardous waste dumps have been provided by statute. There are now statutes covering not only air182 and water,183 but also hazardous wastes184 and substances,185 toxics,186 pesticides187 and garbage.188 As broad and detailed as environmental regulation is today, however, there still exist large gaps in the law. Without the law of public nuisance, these gaps in the statutory system could allow unnecessary, offensive and perhaps unhealthy pollution to continue unabated.
A good example of such a gap is discussed by two South Carolina attorneys who have written in defense of public nuisance law as a result of their experience confronting environmental problems as state officials.189 They focus their article on the government’s attempts to close down a chemical repackaging plant that was experiencing repeated spills and other potentially dangerous releases. Despite its many environmental problems, the company’s activities did not come under any programmatic environmental regulatory authority of the state. The environmental agency was able to obtain temporary orders against the company in response to particular incidents using its emergency powers, but had no statutory authority to enjoin the company’s operations on a permanent basis. As a result, public nuisance *394 was the only legal action available to obtain abatement of this serious environmental threat.190
A different issue is raised when either Congress or a state legislature has enacted legislation to protect a natural resource or to diminish a pollution threat, and a public official seeks to use the common law of public nuisance in this already regulated area. The issue presented is whether, by enacting a comprehensive statute, a legislature has preempted common law remedies.
Frequently the answer is in the language of the statute; many environmental laws specifically state that common law remedies are not affected.191 Where the statute is unclear as to its preemptive effect, however, courts generally have not found preemption.192 Other courts have opted to defer to the regulatory scheme and have dismissed *395 the nuisance complaint193 or, short of total deference, have viewed compliance with statutory law as an indication of reasonableness.194 The better rule is to allow the common law suit in recognition that, as comprehensive and detailed as some of the major environmental statutes appear to be, the legislators cannot anticipate every possible pollution problem associated with the area of regulation.195
Even when an area of environmental concern has been addressed by comprehensive legislation, the statute still may not be adequate to accomplish the express purpose of a legislative enactment. A good example is the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA).196 Also known as Superfund and initially enacted after the revelations at Love Canal, CERCLA provides various remedies for the cleanup of toxic dumpsites. As important and comprehensive as this statute is, however, the New York Attorney General has relied on the law of public nuisance to fill a major gap in CERCLA.
CERCLA specifically allows the federal government to force a “responsible party”197 to clean up a toxic dump.198 Alternatively, either *396 the federal government or the state government may expend money toward the cleanup of a site and then sue the responsible party or parties for “response costs.”199 CERCLA, however, lacks a provision allowing a state to sue to force the responsible party to clean up the site. Since the federal government is primarily concerned with the cleanup of the country’s worst hazardous sites, which are listed on the National Priority List (NPL),200 the states are left to remedy the thousands of other hazardous sites,201 frequently with insufficient funds allocated for that purpose.
After the passage of CERCLA in 1980, the New York State Attorney General initiated lawsuits in federal court for response costs under CERCLA when the state had expended any of its resources toward the investigation, study or emergency cleanup of toxic dumps. In these lawsuits, the attorney general added a pendent claim under New York’s common law of public nuisance to enjoin the “responsible party” to remediate the site. Because it reached the United States Court of Appeals for the Second Circuit, New York v. Shore Realty Corp. is the most frequently cited of the cases in which the common law claim was fully addressed. The Shore Realty court had no difficulty in finding a public nuisance and ordering the owner of the site to clean it up.202
The importance of Shore Realty is obvious. Although New York has been able to negotiate cleanups with those responsible for many of its dump sites, there are many more sites, such as Love Canal and the Shore Realty site, where the alleged polluter refused to cooperate in the required cleanup, forcing the state to take legal action.203 In the absence of a public nuisance cause of action, the state would be left with weaker administrative remedies204 or with *397 having to clean up the sites only as state governmental resources become available and then go to court to recover response costs.205
Apart from its usefulness as a gap-filler, public nuisance has the flexibility to provide a remedy when an administrative agency, charged with providing the necessary environmental and health protection pursuant to a comprehensive regulatory scheme, nevertheless allows a serious pollution problem to go unabated. Courts generally have held that a regulatory agency’s authorization of a particular activity does not immunize that activity from public nuisance liability.206 An example is Village of Wilsonville v. SCA Services, Inc.,207 in which a fully licensed hazardous waste landfill was feared to be leaking. When this threat became apparent four years after a state administrative permit had been granted, the municipality in which the landfill had been sited, joined by the county and the Illinois Attorney General, sued the operator on a public nuisance theory seeking abatement of the nuisance condition. Even in the face of a state license--and a federal plan to develop a less drastic solution208--the trial court’s finding that the dump constituted a public nuisance and its order that all hazardous material be removed from the landfill were upheld on appeal.209 The Supreme Court of Illinois stated: The defendant . . . asserts that error occurred in the courts below when they failed . . . to give weight to the permits issued by the [Illinois Environmental Protection Agency]. This assertion has no merit, however, because the data relied upon by the IEPA in deciding to issue a permit . . . have been proved at trial to be inaccurate.210 Thus, the State of Illinois’ analysis in granting a permit was subject to challenge when that analysis had failed to reveal the potential for the development of a nuisance condition. In effect, the agency’s authority could legitimately be second-guessed in a nuisance action, despite the agency’s broad regulatory jurisdiction.
*398 In cases where regulatory action can be shown to be inadequate to protect the public interest, public nuisance suits should be allowed. Some cases have held that if the official authorization offers more in the way of actual promotion of an activity than mere permission to act, a nuisance cannot be found.211 Even so, at least one court has found a public nuisance where a defendant had been directly ordered by the regulatory agency to undertake the action subsequently found to be offensive.212 In this case, concerning the placement of a flashing light signal at a railroad crossing, the court stated that “[n]o state agency is free to maintain a nuisance, and hence it cannot permit or require another person to do so.”213
Generally speaking, recent experience teaches us that statutory programs, while capable of expressing policy goals and setting standards for environmental quality, may nevertheless become progammatically frozen in time or prone to costly inefficiencies in execution.214 One leading scholar of the common law has proposed that judges treat statutes as they do common law precedents in order to update earlier legislation to new realities.215 Yet in the field of environmental law one need not go so far: a flexible and powerful common law tool lies at hand in public nuisance law. Despite the adaptability and power of the public nuisance remedy, however, the number of reported public nuisance cases is quite small. This is partly because a good *399 many cases are ultimately settled, but it may also be largely due to the lack of understanding of the law of public nuisance or even a lack of awareness of its availability. To the extent that there is confusion regarding the public nuisance cause of action and its differences from private nuisance and the tort of public nuisance, public officials may be deterred from recognizing public nuisance as a useful weapon in the arsenal against environmental degradation.
CONCLUSION In the twenty years since Boomer, there has been much scholarly debate as to the proper application of the principles of fairness and efficiency in contests between private property interests.216 In these discussions, the distinction between private and public nuisance has been befogged or, more usually, ignored. Yet the leading cases of the past decade, such as Shore Realty, Barnes & Tucker, and Schenectady Chemicals, certainly show that, when properly understood and appropriately applied, public nuisance law can play a vital role in the protection of public rights and, in particular, public rights to a cleaner, healthier environment.