LSI 2010 NRD Santa Fe final conference binder 072110.pdf

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Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 8 Both the federal and state governments are responsible for protecting and maintaining the natural resources that fall within their respective jurisdictions. 15 1. State Trustees Traditionally, states have the responsibility of protecting natural resources for the benefit of the public. A state may use the common law public trust doctrine and police power authority to bring suit to recover damages for injured natural resources and to restore the same. 16 These common law doctrines evolved in recognition of the inherently broad authority states have over natural resources within their boundaries. For example, in State of Georgia v. Tennessee Copper Co., United States Supreme Court Justice Oliver Wendell Holmes wrote that “the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.” 17 Accordingly, as the Supreme Court later noted, a state may assert a claim to protect “the atmosphere, the water, and the forests within its territory, irrespective of the assent or dissent of the private owners of the land most immediately concerned.” 18 States exercise police power for the protection of public health and welfare pursuant to the powers reserved to states by the Tenth Amendment to the United States Constitution. 19 15 In some cases, these rights have been passed to citizens under appropriate circumstances (i.e., through a federal citizen’s suit or pursuant to a state statute such as New Jersey’s Environmental Rights Act, N.J.S.A. 2A:35A-1, et seq.). 16 See Kanner, supra note 8. 17 206 U.S. 230 (1907); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 604 (1982). 18 Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908). 19 Similarly, the common law theory of parens patriae is illustrative of states’ power and authority to protect the interests of its citizens. Through parens patriae suits, states have sought redress for injuries to “quasi-sovereign” © 6 Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM
Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 9 Through its police power a state may regulate the release of contaminants into the air, 20 protect the quality of water, 21 control land use through zoning regulations, 22 regulate storage and disposal of solid and hazardous substances, 23 and protect the public interest in wildlife. 24 The public trust doctrine has its origins in ancient common law. 25 During its early development in American jurisprudence, the doctrine was used to retain fisheries and land under interests. These “quasi-sovereign” interests include state interest in its general economy or environment, Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 56 (1890); interstate water management, Wyoming v. Colorado, 286 U.S. 494, 509 (1932); pollution-free interstate waters, State of Missouri v. State of Illinois, 180 U.S. 208, 241, (1901); protection of the air and earth from interstate pollutants, State of Georgia v. Tennessee Copper Co., 206 U.S. at 238; and the general economy of the state, State of Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 447 (1945), reh’g denied, 324 U.S. 890 (1945). 20 See, e.g., Northwestern Laundry v. City of Des Moines, 239 U.S. 486 (1916); Lees v. Bay Area Air Pollution Control District, 48 Cal. Rptr. 295, 299-300 (Cal. Ct. App. 1966)(holding that the regulation of air pollution is “essential and represents a lawful and proper exercise of the police power); State v. Burns, 591 P.2d 563 (Ariz. Ct. App. 1979); ARIZ. REV. STAT. § 49-401A (1987). 21 See, e.g., Commonwealth of Pennsylvania v. Barnes and Tucker Company, 319 A.2d 871, 885 (Pa. 1974)(“abatement of water pollution is unquestionably a reasonable exercise of the police power in the abstract”); Rochez Bros., Inc. v. Commonwealth of Pennsylvania, 334 A.2d 790, 796 (Pa. Commw. Ct. 1975); Morshead v. California Regional Water Quality Control Board, 119 Cal. Rptr. 586, 589 (Cal. Ct. App. 1975)(holding that “prevention of water pollution is a legitimate government objective in furtherance of which the police power may be exercised”). 22 See, e.g., Johnson v. Village of Villa Park, 18 N.E.2d 887, 889 (Ill. 1938)(“Cities and villages have the right to adopt zoning ordinances as an exercise of their police power and thereby impose a reasonable restraint upon the use of private property.”); People v. Johnson, 277 P.2d 45, 49 (Cal. Ct. App. 1955)(“[z]oning is inherent in the police power”); Roselle v. Wright, 122 A.2d 506 (N.J. 1956). 23 See, e.g., Meyers v. Town of Cornwall, 192 N.Y.S.2d 734, 738 (N.Y. 1959)(“a municipality may, in the exercise of its police power, adopt an ordinance which regulates the collection, storage or disposition of refuse and garbage”); Department of Transportation v. PSC Resources, Inc., 419 A.2d 1151 (N.J. Super. Ct. Law Div. 1980); State v. Byrd, 708 So. 2d 401, 405 (La. 1998). 24 People v. K. Sakai Co., 128 Cal. Rptr. 536, 539 (Cal. Ct. App. 1976); State v. Stewart, 253 S.E.2d 638, 639 (N.C. Ct. App. 1979)(“As the State’s wildlife population is a natural resource of the State held by it in trust for its citizens, the enactment of laws reasonably related to the protection of such wildlife constitutes a valid exercise of the police power vested in the General Assembly.”); Florida Game and Fresh Water Fish Commission v. Flotilla, Inc., 636 So. 2d 761, 765 (Fla. Dist. Ct. App. 1994); COLO. REV. STAT. § 33-1-101(1) (1986 as amended)(“It is the policy of the state of Colorado that the wildlife and their environment are to be protected, preserved, enhanced, and managed for the use, benefit, and enjoyment of the people of this state and its visitors.” ) 25 See Kanner, supra note 8. © 7 Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM
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Thursday, July 15, 2010 Natural Res
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James A. Bruen, Richar
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Table of Contents Topic Speaker # C
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Faculty for Natural Resource Damage
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Donald W. Fowler of Hollingsworth L
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