Invisible Invisible A Partnership of Law and Science by Kim Proukou '06M

Together again at the forefront of education, environmental law and science, attorney, former prosecutor and associate professor of environmental studies Robert H. Cutting Jr. and Lawrence B. Cahoon, oceanographer, climate scientist and professor of biology, have published a groundbreaking article in the nation’s leading environmental law journal, the Vermont Journal of Environmental Law (10 VJEL 109. 2008-2009). VJEL is an open-access, online and print journal that provides an international forum for investigation of environmental issues.

The Invisible Problem

In “The Gift That Keeps on Giving,” Cutting and Cahoon address greenhouse gas emissions and other invisible pollutants, current understandings of common law nuisance and trespass, asking — has the law kept up with science?

Traditionally, courts recognize visible materials that cross property lines as a trespass — a frisbee thrown through the air, for example — regardless of whether or not harm occurs. This is a straight forward objective test that is designed to protect private property.

Yet regularly, the courts consider invisible pollutants merely a nuisance. “The nuisance standard is subjective, compared with the spatial test of trespass,” Cahoon says. Also, nuisance violations require proof of damages. In the case of environmental pollutants, such harm can take years to discover — by then, often too late to rectify even if those affected have the means to pursue the case.

Cutting counters that “the visibility test is bogus, because science tells us some of the most dangerous pollutants are invisible.Trespass better reconciles the law with current science and economics because the test is spatial and objective. Trespass more accurately addresses the effects of all pollutants, even if they can be described only in equations,” he says.

Cutting and Cahoon argue for revitalizing common law trespass as a remedial tool when national policy and statutory remedies fail to motivate and educate “to prevent serious environmental consequences to real people and places like the coast.” Cutting and Cahoon have argued in top environmental law journals that landowners own everything above and below their property lines, from the sky to the depths, and that an invasion, whether visible or invisible, is trespass.

Cahoon explains, “Scientifically, there is no question what’s going on. The invisibility distinction is no longer relevant.” Physical science can demonstrate that otherwise invisible agents are, indeed, present. For example, in the case of oil pollution detection, he says, “We look for oil-specific polynucleated aromatic hydrocarbons (PAHs). PAHs are invisible pollutants, some of which are potent cancer-causing agents and poisons.”

The BP Oil Spill: Visible and Invisible

In the case of the BP oil spill disaster, the public can grasp visible oil pollution and its results. Yet, when toxic crude oil is rendered invisible by dispersants — or dissolves throughout the water column — it can eliminate much of the public relations problem, but certainly not the actual, if temporarily invisible, environmental damage.

Indeed, the invisible effects of the spill may turn out to be worse than the visible plumes and tar balls, particularly as BP races to clean up with dispersants like Corexit. The June 11, 2010, issue of The Week quotes Reese Halter of The Atlanta Journal-Constitution, “BP has used an unprecedented 700,000 gallons or more of Corexit, a chemical oil dispersant that’s toxic to marine life.” In addition, “the microbes that feed on oil are sucking oxygen out of the water, ‘creating oxygen depletion zones’ where nothing thrives.”

Invisible Global Warming and Greenhouse Gases

Invisible greenhouse gases (GHGs) are accumulating in Earth’s atmosphere at ever-increasing levels. Yet, GHGs are also subject to nuisance law, and under nuisance, it is the receptors (those affected) by pollution that must bear the burden of discovering and proving damages.

Cutting and Cahoon argue that the property rights of the receptors of pollution are at least as great as those who pollute for free. Those who pollute should have to quantify what they generate and pay the true costs of disposal as well as damages. Under trespass law, they would. In an online Wilmington StarNews article, June 2008, Cutting and Cahoon asked, “Is protecting the economic interest of generators sufficient to overcome the impact on receptors?” Is it?

“Property rights are a three-dimensional concept, protecting subsurface, surface and airspace rights.” — Robert H. Cutting, J.D.

Why the Courts?

In the article, “If the Tide Is Rising, Who Pays for the Ark?” published in The Coastal Society TCS Bulletin Vol 32 (2) April 7, 2010, Cutting and Cahoon answer their question, ‘Why the courts?’

“The courts can resuscitate the common law to protect private property,” Cutting says. While political stakeholders heavily influence the executive and legislative branches with strong, competing interests, Cutting and Cahoon say, that “the courts are uniquely well-equipped to take evidence, and then reach objective, factual and legal conclusions.” Once liability is found, the courts can use creative devices such as continuing supervision, special masters, interim damages, bonding and injunction to assess real damages and apportion responsibility.

Holding Back the Tide with Common Law

The common law concept of trespass provides a worldview that blends traditional property rights with the scientific realities of pollutant transport. Invisible pollution is, indeed, the “gift” that keeps on giving, damaging natural resources and private and public property — raising both tides and costs. Citing Working Group I, Intergovernmental Panel on Climate Change, Climate Change 2007: “The Physical Science Basis” 512 (2007) and other studies - as well as pending litigation - Cutting and Cahoon demonstrate that to ignore or deny the reality of GHG pollution and its effect on global warming is to invite catastrophe, “trillions of dollars in health effects; loss of property, crops and species and national security.”

By ignoring the very real costs of doing nothing, they say, polluters have been given significant incentive to pollute, currently discharging gases into the air and dumping invisible pollutants into watersheds, estuaries and oceans largely without investigation, for free.

Such use of public and private property, air and water for disposal — without payment for either use or damages — not only passes far greater expenses into the future but increases health hazards as well.

Giving Ear to Evidence

Recently, the U.S. Court of Appeals upheld public nuisance actions against generators of some 10 percent of the CO2 emissions derived from human activities, clearing the way for a trial featuring the most current scientific evidence of the association between invisible GHG production and effects of global warming.

Cutting says, “We argue that invisible invasions of resulting heat, for example, also constitute trespass. It will rival the Scopes Monkey trial. Causation is there.”


Concept by Shane Boista, Illustration by Kyle Prey