LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 12
or compensation. Despite the fact that many states have no case law directly addressing a state’s
parens patriae authority to sue, there is no evidence that any state has deemed the principle of
parens patriae not to be a part of the state’s law. Furthermore, many state constitutions, such as
Louisiana, impose upon the state a duty to protect the environment. 35
A somewhat analogous common law doctrine available to redress NRD is the doctrine of
public nuisance. Public nuisance is defined as “an unreasonable interference with the rights
common to the general public;” it is “a substantial interference with the public health, the public
safety, the public peace, the public comfort or the public convenience . . . ” 36 Moreover, it is not
necessary that the individual be actually harmed. 37 Monetary damages for public nuisance,
however, are not available. Depending on the jurisdiction, public nuisance may be statutorily
defined, but nonetheless be available at common law. 38
In a sense, the public trust doctrine and the public nuisance doctrine operate under the
same principle. Both protect interests of the public in natural resources. The public trust
doctrine protects natural resources held for all. Public nuisance protects those held by no one. In
the case of United States v. Luce, the United States, as operator of a quarantine station for
immigrants waiting to enter the country, brought a public nuisance action against a neighboring
35 LA. CONST. art. IX, § 1; see also PA. CONST. art I, § 27; FLA. CONST. art. X, § 11; HAW. CONST. art. XII, § 4
36 RESTATEMENT (SECOND) OF TORTS § 821B (Tentative Draft No. 17, 1974).
37 Chicago v. Gunning System, 73 N.E. 1035 (Ill. 1905)(holding that the fact that landowners had not been injured is
not a defense).
38 See, e.g., Commonwealth of Pennsylvania v. Barnes and Tucker Company, 319 A.2d 871 (Pa. 1974). The State of
Pennsylvania brought an action in equity to require the owner of closed mine to treat acid mine drainage that was
discharging from the mine. The state asserted claims based on statutory and common law public nuisance. The
court held that “[t]he third and fourth based upon which the Commonwealth claims relief should be granted are the
doctrines of statutory and common law public nuisances. We find that relief may be granted under either of these
theories.” Id. at 880.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM