The Reemergence of Nuisance Law in Environmental Litigation

In the summer of 1980, Chicago's beaches were fouled by raw and inadequately treated sewage, allegedly discharged into Lake Michigan by the Hammond (Indiana) Sanitary District. Clearly, Illinois and Chicago officials wanted to stop pollution of the lake. Surprisingly, they turned to the common law of nuisance, rather than to a regulatory agency or a statutory citizens' suit to obtain relief, charging the city of Hammond and the sanitary district with violations of the Illinois common law of nuisance. While planners are generally familiar with the application of common law nuisance doctrines to resolve disputes between conflicting uses of land, there is less familiarity with nuisance actions to abate environmental pollution. Yet prior to the enactment of comprehensive environmental regulations in the early 1970s, nuisance actions were used to challenge pollution of the air, water, and land by both industrial and municipal activity.' Further, legislators and judges looked to nuisance law as a guide to the formulation and interpretation of new environmental regulations, in much the same way that nuisance doctrines provided the framework for zoning.' In fact, in the early years of the environmental movement that emerged in the 1960s, nuisance law, along with a number of other legal doctrines, was touted as an effective way to deal with pollution problems.'