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Air Quality Regulation Basics

Arnold W. Reitze, Jr., Air Quality Issues Affecting Oil, Gas, and Mining Development in the West

Common law actions to abate air pollution have been used for centuries. For example, in 1611 in William Aldred's Case, an English court found that the odor from the defendants hog sty was a nuisance.1 The nuisance doctrine has been the primary cause of action for plaintiffs seeking a remedy for air pollution. Nuisance actions can be based on private nuisance or public nuisance. Private nuisance is a nontrespassory invasion of an interest in the use and enjoyment of land, which can be the basis for a legal action by those that have a property interest in the affected land.2 Public nuisance developed historically as a minor criminal offense, which allows the government to prevent an interference with the rights of the community.3 However, a private right to bring an action in public nuisance is available for a plaintiff that has personal injuries or pecuniary losses that differ in kind from the injury to the general public.4 While most tort actions provide only money damages as a remedy, nuisance also provides equitable relief such as injunctions or abatement orders.5 For this reason it is the tort remedy of choice for plaintiffs seeking to stop a polluting activity. Since the late 1950's courts have also recognized the doctrine of trespass, which is a direct interference with the right to use and enjoy land,6 as an appropriate basis for obtaining equitable relief in air pollutio