Seventh Circuit Overturns Injunction for Lack of Imminent Health Hazard

The courts generally do not favor private nuisance actions for air pollution; the dire prospect of shutting down a polluting industry usually prevails over individual plaintiffs' comparatively insubstantial environmental rights. Often, however, the court's task of balancing the partics' relative equities is eased by defendant's transigence, e.g., where it neither seeks to alleviate the complainants' suffering nor to perform functions that are particularly vital to the economic health of society.

The usual pattern was turned on its head in a recent case in which the Seventh Circuit Court of Appeals was asked to affirm the closing as a nuisance of a noisy, dusty, vibration-causing automobile shredding and recycling plant in Indianapolis. Automobile shredders are enormous machines which tear junked cars into fist-sized hunks of metal, glass and cloth, which can be sold as scrap and conveniently recycled. Thus, auto shredders help to lessen the waste of materials perpetrated by the automobile's planned obsolescence. Moreover, this particular auto shredding firm had clearly tried to mitigate the damage which it caused to its neighbors.

In Harrison v. Indiana Auto Shredders Co.,¹ retired Associate Justice Tom Clark, sitting by designation and writing for the majority, resolved this problem by dissolving a permanent injunction and reversing an award of compensatory and punitive damages granted to the shredder's neighbors in a private nuisance suit. The court concluded that plaintiffs had not proved the machine to be an imminent health or safety hazard. Mere annoyance, the court held, without proof of tangible property damage or positive evidence of danger to the public is not sufficient to enjoin a nuisance.

The Shredder Comes to Town

In 1970, a Texas industrialist, who had developed the auto shredder, picked the site of a former railroad roundhouse in Indianapolis for one of his shredders. The site seemed nearly ideal. It was zoned for the next-to-heaviest industrial use and had ready rail and highway access, but it was proximate to a deteriorating residential district. After encountering some local opposition to his request for heaviest industrial zoning, the proprietor unilaterally covenaned to install a self-contained shredder, create a fenced buffer strip, and prevent accumulation of junked cars. After obtaining his rezoning he fell ill and abandoned the project.

In 1974, the Indiana Auto Shredder Company's parent corporation, which had been operating auto shredders in Chicago and Canada, acquired the site and forged ahead with constructing buildings and stockpiling cars. The Company's operations began in July 1974, and not long after the first resident complaints of dust, noise, vibration and official notices of car stack height violations trickled in. Responding to these complaints, the soon-to-be defendant began using water-damped sweepers and installed insulating foam in the shredder and covers over its blowers.

Not to be placated, in September 44 neighbors filed a nuisance suit in the Indiana Circuit Court. Defendant removed it to the federal district court, where upon eyewitness testimony concerning the shredder's malfunctions the defendant was temporarily enjoined from continuing the shredding operation, subject to the claimants' filing a bond. The claimants either lacked funds or resolve, for no bond was filed. In contrast, the company seemed committed to staying in Indianapolis, because in the interim between the preliminary hearing and the December 1974 trial date it reduced the air turbulence and illegal car storage. Furthermore, the shredder operation received complete approval of the city Air Pollution Control Board a few days before trial.

Lay Versus Expert Testimony

At trial, the complaining neighbors made the critical mistake of not assembling a battery of qualified experts. Relying almost exclusively on personal opinions, the claimants called as experts city Air Pollution Control Board members and staff, whose testimony was fatally unspecific as well as dated. In general, the neighbors could only show the disruption of their daily lives caused by the shredder's pounding and dust. Also, the claimants' credibility was harmed when their real estate expert witnesses estimated the damage to the neighboring houses to be less than that already testified to by the owners.

The company, on the other hand, went to great lengths to prove that its conduct was reasonable. Its parade of experts on air pollution, noise, vibration, particulate emissions and real estate all concluded that no public regulations were being violated, and that the property loss was minimal because of the houses' age and the industrial character of the community. The company also emphasized its continuing efforts to mitigate vibration and noise damage by excavating a barrier trench and conducting additional inspections to remove explosive gasoline left in the cars.

The district court seemed to give undue weight to the lay testimony presented by the claimants. Engaging in a classic exercise of judicial zoning, the district court hinted that the shredder belonged somewhere else, and then proceeded to enjoin the shredder operation permanently, and to award $176,956 in compensatory damages as well as $353,912 punitive damages, thus ignoring the substantial efforts of the company to minimize the neighbors' annoyance.

The court of appeals was particularly unimpressed with the type and the objective of the claimants' lay evidence:

In the end, claimants had consumed nearly three weeks of trial with sincere but unsophisticated assessments of the harm the shredder had caused. Taken altogether, claimants' evidence gave strong proof of the displeasure and annoyance caused by the shredder's noise, vibration and air pollution. Nevertheless, because that evidence was based on subjective testimony, it failed to show either actual health hazards or significant damage to building structures that could be proved to be directly caused by the shredder, i.e., no visible damage occurred while vibrations from the shredder were felt in a building.²

[6 ELR 10062]

In contrast, even while admitting that the plaintiffs should be allowed to demonstrate the diminution of their quality of life, the court at times seemed mesmerized by the expert testimony indicating that the shredder operated well within regulatory limits.

No Imminent Danger Means No Injunction and No Damages

The district court based its injunction and damages award on the defendant's supposed violation of zoning ordinances and on the emission of pollutants beyond the confines of the shredder property. As to the zoning violations, Justice Clark properly noted that no testimony had established non-compliance with applicable codes, except for the lack of perimeter landscaping, which was certainly not an infraction serious enough to warrant a permanent injunction.

On the question of injunctive relief against air pollution, the court of appeals had ample reason to overturn the district court. The lower court had voluntarily limited its range of remedies to two: an injunction or permanent damages, thus abdicating its power to shape relief according to the parties' respective equities.³ Clearly the complaining neighbors' lives were disrupted by the shredder. But balanced against this established fact was the equally valid consideration that the shredder's operation seemed reasonable to the authorities and was located in an increasingly industrial area. In view of these factors, the trial court's wooden analysis hampered resolution of the company's responsibilities to its neighbors.

But the court of appeals pushed the pendulum too far in the other direction. Justice Clark first catalogued the pros and cons of judicial involvement in environmental cases, concluding that "the right of environmentally-aggrieved parties to obtain redress in the courts serves as a necessary and valuable supplement to legislative efforts to restore the natural ecology of our cities and countryside." The court's later analysis, however, belies the promise of its sentiments. The court emphasized that the requirements for permanent injunctive relief are (1) an imminent, serious danger to public health or safety, or (2) substantial and unavoidable injury to property, relying on the recently decided Reserve Mining Co. v. United States⁴ as precedent. This standard overstates the burden that plaintiffs ordinarily must meet to obtain injunctive relief from nuisances: it is clear that if a court weighs the equities in favor of a plaintiff, injunctive relief is proper.⁵

More importantly, the majority opinion left undiscussed the issue whether in fact the operation of the shredder constituted a nuisance. As the dissent correctly pointed out, under the applicable statute the district court, without abusing its discretion, could have determined that the shredder was an interference "with the comfortable enjoyment of life or property."⁶

Furthermore, the majority's reversal on the damages issue is an enlightening example of bootstrapping. The court held that in view of the granting of injunctive relief (which it overturned), damages could not be awarded. The effect of this holding was to deny the neighbors all relief, notwithstanding the court's earlier statement at "we do not quarrel with the trial court's determination that the shredder's effect upon the quality of life in the Irish Hill community entitled the claimants to some form of equitable relief and damages."

Conclusions

The Seventh Circuit's heavy-handed treatment of the undeniably harmed plaintiffs points up the nagging insufficiencies of nuisance law. An anachronistic fixation on the injunctive relief issue ignores an equity court's power to fashion flexible relief appropriate for each particular situation.⁷ Thus, despite the court's final suggestion that the district court can take action necessary to correct the auto shredder's offenses, the lower court may find it difficult to do so within the framework of the circuit court's rigid analysis.

Moreover, reliance on the imminent public health hazard standard continues a disconcerting trend that has been demonstrated to protect the environment inadequately from less than overt risks.⁸ It is ironic that an environmentally beneficial industry should simultaneously be a nuisance, but advancement of a materials recovery program, even on a national scale, cannot justifiably impair the health and well-being of a neighborhood.

1. 6 ELR 20179, __ F.2d __ (7th Cir. 1975).

2. 6 ELR at 20183.

3. A similarly unbending judicial attitude toward nuisance remedies can be found in Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970).

4. 5 ELR 20596, 514 F.2d 492 (8th Cir. 1975). Justice Clark's restrictive view of the public health standard is somewhat surprising in light of his decision in Soc'y of the Plastics Indus. v. Occupational Safety and Health Administration, 5 ELR 20157, 509 F.2d 1301 (2d Cir. 1975); see Comment, OSHA Standards for Vinyl Chloride Upheld, 5 ELR 10042 (Mar. 1975).

5. Prosser, Torts § 90, at 603-04 (4th ed. 1971).

6. Ind. Code § 34-1-52-1 (1971) reads:

Nuisance — Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.

7. See, e.g., Renken v. Harvey Aluminum, Inc., 226 F. Supp. 169 (D. Ore. 1963).

8. See Schulz, Synthetics, Latent Risks and Governmental Response: The Case of Fluourocarbons and Stratospheric Ozone, 5 ELR 50109, 50112-14 (Aug. 1975); Comment, 1974 Developments Underscore Need for Altered Standard of Proof in Public Health Cases, 5 ELR 10007 (Jan. 1975). See also Gelpe & Tarlock, Uses of Scientific Information in Environmental Decisionmaking, 48 S. Cal. L. Rev. 371 (1974); Note, Imminent Irreparable Injury: A Need for Reform, 45 S. Cal. L. Rev. 1025 (1972).