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May 16, 1990

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.

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