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#181 - Suing Polluters In Small Claims Court, 15-May-1990

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

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ENVIRONMENTAL GRANTMAKERS ASSOCIATION GIVES WASTE MANAGEMENT, INC., THE
BOOT

For the last several years, Waste Management, Inc.--the nation's
largest polluter and least law abiding waste hauler--has been funding
the environmental movement. Last year, Waste Management gave $800,000
in grants to environmental groups like Natural Resources Defense
Council (NRDC), Conservation Foundation, Nature Conservancy, Inform,
Inc., National Wildlife Federation, Environmental Law Institute, Sierra
Club of California, World Resources Institute, Izaak Walton League,
National Audubon Society, the Keystone Center, and others.

THE CHRONICLE OF PHILANTHROPY reported April 17, 1990, pg. 6, that the
Environmental Grantmakers Association, a group of funders who support
environmental work, has voted to disqualify Waste Management from
membership, citing corporate practices "contrary to the Association's
fundamental goals and aspirations." "It is readily apparent that Waste
Management, Inc., has engaged in a pattern of abusive corporate conduct
involving repeated violations of both criminal and civil laws, with the
effect of endangering and degrading the environment," the Association
said.

--Peter Montague

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Descriptor terms: lawyers; lawsuits; tactics; innovations; agendas;
small claims courts; san francisco, ca; noise pollution; nuisance;
legal history; linda dyson; delores huajardo; rylands v fletcher; wmi;
environmental grantmakers association; funders; funding;