Pollution vs. Lawful Product: Nuisance vs. Non-Nuisance

In a November 22, 2008 post on ClassActionBlawg.com, Paul Karlsgodt juxtaposed the Rhode Island Supreme Court's July 1, 2008 decision in State of Rhode Island v. Lead Industries Association, 951 A.2d 428 (R.I. 2008), and the Supreme Court of Canada's November 20, 2008 decision in St. Lawrence Cement, Inc. v. Barrette, 2008 SCC 64. They should not, however, be confused as comparable "public nuisance class actions."

*          *          *

• St. Lawrence Cement involved a single cement manufacturer whose manufacturing process produced dust, odors and noise that were released into the air and migrated to neighboring properties immediately causing harm. Lead Industries involved a select group of four manufacturers of lead pigment that many decades ago sold lead pigment to an unidentified number of the thousands of paint manufacturers that used it as a component part of lead paint. The defendants had manufactured lead pigment for use in paint for a small fraction of the several centuries lead paint had been applied to houses in Rhode Island.
• In St. Lawrence Cement the injury causing instrumentality was a by-product of the defendant's manufacturing process - pollution - released into the air on one property and disturbing the surrounding neighbors' use and enjoyment of their own property. In Lead Industries the alleged injury causing instrumentality was a product: the intended end-product of the defendant's manufacturing process - lead pigment - that was placed in the stream of commerce and used for its intended purpose.
• In St. Lawrence Cement the plaintiffs were a class of individual property owners, each with their own private nuisance action seeking their own individual damages for interference with the use and enjoyment of their individual properties. In Lead Industries the plaintiff was the State of Rhode Island, bringing a public nuisance action seeking abatement of an unknown, undefined and unidentified "cumulative presence" of lead pigment in paint on walls and coverings throughout the state.
• St. Lawrence Cement involved a defendant that controlled the injury causing instrumentality - emissions resulting from the manufacturing process - at the time it was causing injury by interfering with the use and enjoyment of the neighboring properties. Lead Industries involved defendants that did not control the injury causing instrumentality - lead pigment - at the time it was alleged to have caused injury.
• St. Lawrence Cement was the prototypical nuisance action, involving the use of property that disturbs the use and enjoyment of the property of another. Lead Industries was a decidedly un-prototypical nuisance action, involving the manufacture and sale of a product that was placed into the stream of commerce.

*          *          *

The Rhode Island Supreme Court ultimately recognized that the State of Rhode Island's claim fundamentally sounded in product liability law and did not constitute a nuisance claim at all because the manufacturers did not control the lead pigment when it was alleged to have caused injury.  The Supreme Court of Canada, on the other hand, was not concerned with whether the action before it was a proper nuisance case, it indisputably was.  The significant issue raised and answered in St. Lawrence Cement was whether nuisance liability could be imposed on a defendant based solely upon the extent and nature of the "neighborly disturbance," without a showing that the defendant's conduct was intentionally harmful, negligent, or in any other way faulty.  The Court concluded that it could.  While that issue was a subsidiary issue raised by the Lead Industries defendants, it was not reached by the Rhode Island Supreme Court when it decided there was no nuisance claim as a matter of law.

While St. Lawrence Cement and Lead Industries were each important nuisance cases in their own right - they are worlds apart.  St. Lawrence Cement modified nuisance law to make it less burdensome for property owners to recover damages resulting from the pollution emitted by a neighboring factory.  Lead Industries, on the other hand, rejected the application of nuisance law to the manufacture and sale of a legal product.  Together the two cases dramatically show the difference between the traditional and intended application of public nuisance law to the use of property, and its wholly inapplicable application to the manufacture of a lawful product.