Cohen-Greenberg v. Goldstein Manufacturing Co.
New York State Court of Appeals
Decided: Sept. 28, 2017
GOES, CHIEF JUDGE
Defendant operates a large manufacturing plant near Albany. These are actions for injunction and damages by neighboring land owners alleging injury to property from dirt, smoke, vibration, and other pollutants emanating from the plant. A nuisance has been found after trial, and an injunction has been granted, to be vacated upon payment by defendant of permanent damages to the respective plaintiffs. The Supreme Court Appellate Division, Third Department, unanimously confirmed the judgment. We have granted petitioners leave to appeal in order to reconsider our decision in Boomer v. Atlantic Cement Co. (1970), which has controlled the decisions below.
At the time that Boomer was decided, public concern with air pollution arising from various sources in industry and transportation was being accorded ever wider recognition, accompanied by an increased sense of responsibility in state and federal governments to control it (see, e.g., The Clean Air Act of 1970). The defendant in that case, a cement company, was an obvious source of air pollution in the neighborhood where it operated, much like the defendant in this case, a manufacturing plant, is an obvious source of pollution.
The question raised by the litigants in Boomer was whether the Court should limit itself to resolving the dispute between the parties before it at the time, or whether, seeking promotion of the general welfare, it should use the private litigation before it to achieve a broad public objective, i.e. the reduction of air pollution. We decided there that the proper role of the court is to adjudicate the rights of the parties before them. Significant questions of law are often decided in the course of seemingly insignificant litigation, but this result is an incident of the court’s function, and not the object of it. The court’s main function is simply to settle controversies.
The petitioners in this case argue that the relief granted by the lower courts is inappropriate in this situation. Petitioners argue for absolute injunctions, not vacatable upon payment of permanent damages. Two conflicting grounds are offered in support of this request for relief. The majority of petitioners, represented by Mr. Bott, argue that we should reconsider our position in Boomer and exercise the formidable power of the judiciary in support of the general welfare or, in the alternative, that we should view the controversy before us not as a minor conflict between the named parties, but as a large conflict between all polluters and landowners on the basis of a theory similar to class-action controversies. The petitioners argue we must choose the “moral” path and use our power to support “environmentalism,” a movement which seeks to ensure that the health and cleanliness of the earth, to the benefit of all who live upon it. They offer as possible justification that we could frame our decision as a declaration of the rights of landowners as a class against polluters as a class. This we refuse to do.
The role of the judicial system was not decided in Boomer, merely reaffirmed. The delineation of our duty was set forth at the very beginning of our nation’s history, embodied in our founding documents. The United States Constitution, Article III, states that judicial power shall extend to “cases” and “controversies.” And, despite the temptations that every judge has faced, to exercise his considerable power of his own accord, we have, all of us, declined to do so for almost 250 years. Indeed, the Supreme Court of the United States has never once issued even an “advisory opinion.” We will not break with this supreme legal doctrine. Indeed, we cannot. If there is no conflict before the court, then there is nothing to be adjudicated. It is not that the Court has limited itself to deciding cases; deciding cases is its entire raison d’etre. To argue otherwise is absurd.
Moreover, a significant body of case law has been developed to determine when there is a case or controversy that can be decided by a court, under the heading of “standing,” or “justiciability.” The standing question is whether the the plaintiff has alleged “a distinct and palpable injury to himself,...sufficient facts to establish that the asserted injury was the consequence of the defendant’s actions,...[and] that prospective relief will remove the harm.” Warth v. Seldin. In other words, the plaintiff bears a strict burden that must be satisfied in order “to justify the use of the court’s remedial powers on his behalf.” Id. A party must generally assert his own legal rights and interests, and not those of third parties. Indeed, it is a principle of civil procedure that a court’s judgment cannot bind parties that are not before it, named in the action being decided upon. Finally, as Justice Scalia said in Lujan v. Defenders of Wildlife, “The province of the court is solely to decide on the rights of individuals. Vindicating the public interest is the function of the political branches.” These principles seem dispositive. We cannot rule as if the issue before us is different than it is, or decide as if the parties before us are different than who they are. The appellants’ contention thus falls.
These are basic tenets of our law and legal system. That they could be questioned so boldly by counsel in this age is, frankly, shocking. For that reason, we find Mr. Bott in violation of the New York State Rules of Professional Conduct, Rule 3.1(b)(1), and will be forwarding a copy of this decision to the proper authorities, who may consider disciplinary action against him.
If this were the only arguments advanced by petitioners, we could go no further; the case would be summarily dismissed. However, one appellant, Mr. Cohen-Greenberg, retained separate counsel, Mrs. Gergen, and has advanced a different argument in favor of permanent injunctive order.
Appellant Cohen-Greenberg agrees that the Court should limit itself, and not decide its cases on public welfare considerations because, in the words of his brief, we “are not qualified to do so. No man is.” He argues, however, that we did just that in deciding Boomer as we did, and that we should correct ourselves through the case before us.
In Boomer, an injunction was initially denied because of the “large disparity in economic consequences of the nuisance and of the injunction.” That is, the economic benefit of the cement plant’s continued operation substantially outweighed the economic cost suffered by the plaintiffs in the case. We reversed the lower courts, however, in accordance with the long-established rule in this State that whenever the damage resulting from a nuisance is found to be not “unsubstantial,” an injunction would be granted. As Judge Werner said in Whalen v. Union Bag and Paper Co., “Although the damage to the plaintiff may be slight as compared with the defendant’s expense of abating the condition, that is not a good reason for refusing an injunction.” Therefore, we granted an injunction to the plaintiffs in Boomer.
However, we also incorporated another solution into the case then before us, which was equally supported by case law: that permanent damages were an appropriate remedy where the nuisance was of a continuing nature. Reasoning that the grant of an injunction would necessitate the closing of the cement plant immediately, since the technology to avoid polluting plaintiffs’ land was not then in existence, we ruled that an injunction should be granted unless the defendant paid to the plaintiffs such permanent damages as would be determined to fully compensate them for the economic loss to their property. This appears, as Judge Jasen noted in his dissent to the decision in Boomer, as though the Court was “licensing a continuing wrong,” but, in fact, the Court believed that this was the fairest judgment, as it seemed to redress the economic loss of the plaintiffs without the destructive consequences of forbidding certain beneficial industry.
Appellant in this case argues that this remedy crafted by the Court in Boomer was, in fact, an effort to rule in support of “[our] idea of the general welfare,” rather than simply adjudicate the conflict before us, as we claimed to do.
The thought that courts should not rule for the public welfare is a complicated one. On the one hand, many of our greatest legal doctrines, such as the privilege of confidentiality afforded to communications between attorneys and their clients, are grounded almost entirely in considerations of public policy. On the other hand, the courts continually affirm their commitment to limiting the scope of their judgment to the parties before them, as we have in this very case, supra. The resolution to this apparent contradiction, we believe, is that the public welfare is best served by properly deciding and protecting the rights of the individuals seeking the court’s justice.
It is argued that monetary calculation, cost-benefit analysis, may be an appropriate method of determining the effects of our decisions on public welfare. Thus, in this case, the drastic cost of the injunction, as compared to the permanent damages suffered by plaintiffs, indicates that the public welfare would be hurt by granting the injunction. We are inclined to agree. However, the fact that this case is before the Court indicates that appellants disagree with the valuation of their damages by the trial court. This is unsurprising, considering the subjectivity of value. The point is, the court is not in a position to determine whether the economic benefits of the manufacturing plant outweighs the economic costs that burden the plaintiffs. By virtue of this appeal, it appears that the figures it has used in this determination are erroneous. Only the parties can decide whether they are better off with their land or with damages. When the damages are sufficient of fully compensate the plaintiffs for their loss of value, and the operation of the plant remains profitable, then, and only then, can we say that welfare would be maximized by the award of damages.
The best way to support public welfare is to enforce the rights of individuals in their effort to maximize their own subjective welfare. This we failed to do in Boomer.
One of the rights of every individual is the right to use and enjoy his property as he pleases, provided he does not impermissibly infringe upon everyone else’s right to do the same. Therefore, we return to the rule in New York before Boomer: whenever an individual property-owner suffers substantial damage from a nuisance, he is entitled to an absolute injunction. The court may not substitute an award of permanent damages in such cases. It is the role of the court to decide upon and enforce the rights of individuals, not to fashion our own solutions to the problems before us. The enforcement of rights is the solution.
It seems that this rule would place an unbearable burden on the manufacturer, or polluter generally. This is not the case, for two reasons.
First, a court’s ruling that a manufacturer does not have the right to pollute another’s land does not mean that the manufacturer cannot acquire that right. Part of the individual’s right to use and enjoy his property as he pleases includes the right to sell all or part of that right. The fact that courts are unqualified to determine a price at which it would be beneficial for all parties for the manufacturer to continue his operations and “pay off” the landowners does not mean that such a price does not exist. An injunction is, in truth, a start to negotiations. It is always for sale. If a price exists that the manufacturer could pay to buy the injunction and that would allow both parties to be better off, then the parties will find it on their own. As the great Judge Posner said in Walgreen Co. v. Sara Creek Property Co., “The benefit of substituting an injunction for damages [is that] it shifts the burden of determining the cost of the defendant’s conduct from the court to the parties….Prices and costs are more accurately determined by the market than by government.” It is possible that the manufacturer here may continue operating his plant; he will just have to pay a higher price to do so than the one chosen by the trial court.
Second, it must be remembered that the right to use and enjoy one’s property applies just as fully to the manufacturer as to anyone else. His pollution, the product of his operation, fully belongs to him, to do with as he pleases, so long as he does not impermissibly infringe upon the property rights of others. He may pay some property owners to accept his pollution, as suggested above. Or he may sell the pollution to some other party who wishes to use it for some other purpose. As the popular saying goes, “one man’s trash is another man’s treasure.” Waste is an economic classification; it is possible that some entrepreneur can make use of the manufacturer’s byproduct. One recalls the more than 500 products developed by J. D. Rockefeller out of his petroleum byproducts. Indeed, the defendant could make use of his pollution himself, in some other line of manufacturing. It may be that the defendant can profit from his waste, rather than bear it as a cost of business.
Whether the burden is bearable or not, however, the law must be firm. If the manufacturer cannot operate profitably without violating the rights of others, than it cannot be allowed to operate. That this means that the sole manufacturer named in this action must bear the consequence of an entire industry’s failure to develop a pollution-less manufacturing process is irrelevant. All that matters is the parties before us, and their right to be secure in their property.
In the words of Justice Kennedy, in Lawrence v. Texas, “[Boomer] was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent.”
Accordingly, the order of the trial court should be reversed, without costs, and the case remitted to Supreme Court, Albany County to grant an absolute injunction, not to be vacated without the consent of the parties holding the rights protected by the injunction.
It is so ordered.
[Dissent by Justice Nizam, arguing for the abolition of property rights, is omitted.]
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