=======================Electronic Edition========================
RACHEL’S HAZARDOUS WASTE NEWS #181
—May 16, 1990—
News and resources for environmental justice.
——
Environmental Research Foundation
P.O. Box 5036, Annapolis, MD 21403
Fax (410) 263-8944; Internet: erf@igc.apc.org
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SUING POLLUTERS IN SMALL CLAIMS COURT.
Going to court is usually a bad idea. Taking your fight from the
streets to the courts usually saps your resources, diverts your
attention away from your real strength, throws you into an arena
where your adversaries have the advantage, and ties you up for
years in boring technical arguments. Your bank account dwindles,
your lawyer gets rich, your organization falls apart, and in the
end there’s an excellent chance you’ll lose.
However, maybe there are times when it makes sense to go to
court–especially if you pick the right court. We hope our
readers will consider attacking polluters in small claims court.
(For an excellent “how to do it” book, see our last paragraph,
below.)
Small claims court is different from regular court. You do not
need a lawyer to go into small claims court against a polluter.
You get to speak on your own behalf. It also doesn’t cost you
much money. And you don’t need to offer any legal theory
entitling you to win; it’s sufficient to state the facts. For
example, you might say, “The XYZ Corporation is emitting sulfur
dioxide and when I’ve got my window open in the summer it smells
bad and gives me headaches, and this is a continuing nuisance”
(or however you want to summarize your local problem).
In small claims court, there’s a strict limit on how much you can
win. Usually the limit is around $2,000. But suppose you win once
in small claims court. If you win because you claimed the
polluter was a nuisance, and if that nuisance continues, you can
go back into small claims court and sue for another $2,000. And
you can keep doing this until the nuisance stops. Furthermore, if
you organize your neighbors, they can each, as individuals, go
into small claims court and sue for the maximum. If 100 people
each win $2000, that’s a total of $200,000, and that will get the
polluter’s attention.
Who can sue? Anyone who lives in the state where the suit is
filed. A minor must have an adult appointed by the court as a
guardian for purposes of the suit.
Who can be sued? Any business active in the state. You can also
sue state, city, county and other government agencies if you
first file an administrative claim and have it denied. You can
also sue any individual residing in the state.
Can lawyers represent people in small claims court? The point of
small claims court is to give people a system of justice that is
accessible and not costly. However, in many states you are
permitted to have a lawyer represent you, if you wish. Only a few
states (Arkansas, California, Colorado, Hawaii, Idaho, Kansas,
Michigan, Montana, Nebraska, Oregon, and Washington) forbid
lawyers from representing clients in small claims court–in those
states you must speak for yourself.
Do you need an expert? Yes, in a pollution case, you probably
do–someone who can produce evidence to substantiate your claim
that pollution is occurring. On the other hand, maybe your health
department has data which you can use to prove that pollution is
occurring. If you lose your case, maybe your neighbors can learn
from your mistakes and bring different evidence into court, until
someone wins. Once you know what it takes to win, hundreds of
your neighbors can then sue.
A few years ago, 183 individuals who lived near the San Francisco
airport each sued the city government. They wanted the nuisance
of noise pollution reduced. Led by Linda Dyson and Delores
Huajardo, the group organized to attack the problem through 183
lawsuits in small claims court. First the city tried to argue
that all these claims amounted to a “class or group action suit”
which really belonged in the formal court system (where, of
course, you must have a lawyer represent you [at great expense],
and where court costs and delays would eat you up). The city lost
that argument. Next the city argued that the total amount of the
claims ($360,000) made small claims court the wrong place to hear
the case. Again, the city lost. [See: City and County of San
Francisco v. Small Claims Div., San Mateo Co., 190 Cal. Rptr 340
(1983).] The city appealed the case, to prevent those citizen
suits from being heard in small claims court; again the city
lost. The total judgment against the city was $381,500 and the
city spent $600,000 defending itself. Eventually, the city won an
appeal from the first wave of lawsuits, but by this time two
additional waves of lawsuits had been filed, and the city and the
citizens were tired of wrangling. In exchange for the citizen
group’s pledge not to file any more lawsuits, the city agreed to
citizen representation in a serious program of noise abatement.
The Concorde jet was banned from the airport; night flight
patterns were changed to avoid residential areas; the noisiest
types of older jets were banned; monitors were installed to
identify the noisiest kinds of planes. Boeing Aircraft in
Seattle, which heard about the citizen victory in California,
credited the lawsuits with spurring its own steps to develop
quieter aircraft.
The legal basis for a “nuisance action” goes back to Roman times
and is expressed in the Latin phrase, Sic utere tuo ut alienum
non laedas: “Use your own property in a manner that does not
injure another’s.” Nuisance is basically an unreasonable
interference with an owner’s or tenant’s enjoyment of land. In
deciding what is a nuisance, a judge takes into consideration the
“normal” use of surrounding land. A smelly factory may not be a
nuisance when it starts operating in a remote rural setting, but
after a town has grown up around it, its odors may well be judged
a nuisance. These days, it’s probably difficult to argue that any
form of serious pollution is not a nuisance. In a famous English
case of 1866, called Rylands vs. Fletcher, the court decided
that, if a person places on his property something which, if it
escapes from his property, would cause harm or mischief to his
neighbors, that person is liable for any damage done if such
escape occurs. And the judge said this applied to animals, water,
filth or stenches (in short, it applies to pollution).
We don’t think legal attacks can ever replace plain old community
organizing. But getting organized to sue a polluter in small
claims court might be a tactic worth your consideration.
Get: Ralph Warner, EVERYBODY’S GUIDE TO SMALL CLAIMS COURT
(Berkeley, CA: Nolo Press [950 Parker Street, Berkeley, CA 94710;
phone (800) 992-6656, or (415) 549-1976; from within California:
(800) 4456656]), 1987. $14.95; if you live in California, request
the California version, otherwise order the national version.
Visa, Master and Discover cards accepted. After you purchase a
book from Nolo Press, they give you a free 2-year subscription to
their NOLO NEWS, which contains useful articles about legal
matters from a non-lawyer’s viewpoint.
–Peter Montague, Ph.D.
Descriptor terms: lawyers; attorneys; lawsuits; tactics;
innovations; agendas; small claims courts; san francisco; noise
pollution; nuisance; legal history; linda dyson; delores
huajardo; rylands v. fletcher;