for failure to see the claim the district court's opinion has the result of stripping essential property rights from thousands of people in this case d directly and countless other pennsylvania residents that live near sources of any one of a number of types of industrial pollution  specifically we contend that the district court broke a precedent when it imposed new miracle and proximity of restrictions on the appellant's private nuisance claims that don't exist everywhere i'm sorry anywhere not in the state of pennsylvania those particular  states that think that you would problem private nuisance but there is a numerical imitation pennsylvania does now number two misapplied the special injury requirement with respect to the public nuisance claim and three wrongfully found that the apple  duty to my clients were its own affirmative action cause in the form of property damage that is recognize under the law in pennsylvania this case is about a really important set of rights using join that are among that core bundle of property rights that every person or law student section of the st article of pennsylvania's constitution list acquiring possessing and protecting property is among the inherent indefeasible rights given to all its pacifically knows that this includes the right of every man and woman to use their property so that's what's at issue in this case the apparent cause of action are essential to the preservation of their property rights those rights are inherent and indefeasible is recognized in every corner of pennsylvania's law and a right that cannot be enforced is no right at all there is no case we talk about one way to sort of harmonize it with the state of the law are brief but i think that there's another way which is the one worrying case in addition to all the factual differences that we discussed in our brief the the injury to the property interest is derived only from the violation of the public right meaning that the way the court looked at it there was not a direct impact to the property that was caused by the news there was a lack of access to the property that was the same violation of the public rights offered by the public at large so here we have direct impacts to the property as well as the violation of a separate public life and that's that's the key distinction here rather the if you're innocent you're asking to represent special so your honor their special in that they are property rights the right to use in enjoy d your property will always constitute a special injury as compared against a public right no matter your class is property  renters of residential property your own and so no matter that it's theirs and there's extensive authority and something on time to do very shortly to the effect that no matter how many people are affected in their individual property rights cannot become a public nuisance there has to be an interferes with a separate public right and that's where we believe the origin of the district courts err was is that it treated the accumulation of a large number of people property rights as the same thing as the public definition may be subject to revision based on ongoing discovery but there's this argument that there's sort of going to bomb this liability created if our position which is as an user of the law as it has been many decades is entrenched in the court pollute pollution use make over your neighbor's property based on the allegations that you make in your complaint how does the public nuisance claim differ from the private school so the public nuisance claim that this special injury in the public nuisance claim is the same harm it issue in the private nuisance claim to the loss of the use and enjoyment of the property there are the difference obviously is that with the public nuisance claim you have to compare it against to be the private right that's being violated which is a constitutional right to greet uncontaminated air there are in terms of the relief that's available in terms of the statute of limitations there are differences between the two causes of action to make it desirable to be able to advance both of them and so that's why it's doesn't make sense to just say will can you just bring it as a private nuisance and leave the public nuisance thing out of it there are rights in terms of abatement there are statutes that are limitations much landfills that are making too many orders and can we depend upon those agencies to just here in the situation we do have them rather than we cannot depend on them exclusively to enforce private property rights so this is an argument that the i believe has made right that even though they want to argue that these people have no cause of action in court none of the three that we have asserted that have been traditionally apply in this field that it's ok because paid up will regulate this this argument is a little bit like saying well my neighbor is punching me in the face i'm going to call the police hopefully at some point the police will show up and stop my neighbor from punching me in the face but that still does nothing for the violation of my rights that have occurred up until the point we're hopefully the police stop my neighbor and the police have a much better response time than paid up does in every one of these cases that we've brought in the cases in recent history d that we've discussed in pennsylvania there has been some action on the part of paid up which has been st of all the intent to component of these cases recognizes that the primary appropriate role for regulating these facilities is with the regulatory authority but the regulatory authority is without the power to damages for example for the deprivation of people private property rights in the statutory scheme the solid waste management act goes out of its way to preserve people's ability to bring private cause of action as they have historically in the cause of act applebee's breeze literally stared at page six that this case exemplifies how private nuisance and negligence remedies are inappropriate for claims regarding the public impact of large regulated infrastructure facilities but if that were true there would be no need for d statutes like the right to farm act which was an issue in the gilbert case which is so central to the negligence analysis year which provide exactly the kind of nuisance immunity the defendant wishes it has for certain agricultural and operations it doesn't exist for landfills not only is there no similar act for landfills but as i discussed there's the thousands manned macros out of that way to preserve use causes of action to preserve every right at law or equity the property owners have so the idea that these cause of action are not available art is just wrong similar cases like this have gone forward in the state for many decades and so the apple is making an argument that should be made d if at all to the legislature to the defense bar tab credit i want t the argument is being made here really quickly in some contexts they continue to find new innovative ways d d to sort of attack use cases on the pleadings before this detective detour was the idea that these common law claims are preempted by the clean air act  on the panel for bell versus just week which is a case my firm was involved in and in that case this court rejected the argument that the claims were displaced by the clean air act and starkly there was no assertion by the defend in that case that the thousands of homeowners in the class have not alleged the elements of private nuisance or negligence republicans is this is a new theory it was never raised in the baddies case that we cited in our brief by the same skilled counsel who here represents one of the men as defense amaechi that case settled for two million dollars go forward as they have although you know the idea that reversing this order would open the floodgates of litigation is simply not true all it would do is maintain the status quo on the other hand affirming this order would bar the courthouse doors to countless pennsylvania's whose rights ripple effects that this could really d affect the property rights of people across the commonwealth the nooses cause of action are inextricably tied up in the rights to use and enjoy property there is no way d to fall will be protected that right be it  through regulatory or a ministry of oversight without allowing people to come into court and enforce their property rights when someone gets a permit from the state even through it's authority from the federal government that is not a license to overtake the property rights of the people affirmative action would be the defendant's actual landfilling practices so bringing in garbage depositing in the landfill covering it doing things that are supposed to capture the pollutants before they admit those of the affirmative steps that are taken and the apple we can see that nothing in gilbert abrogates the standard rule that one is responsible for the impacts of one's own acts it's simply a matter of whether contamination on property in the air constitutes property damage is not as i already s them that separate the two i see my time is up pennsylvania law it's contrary to the statement and it's contrary to common sense and it stems from a confusion over the different doctrines of public nuisance on the one hand and private nuisance on the other as explained in the early days opinion but the southwestern energy company scores of studies have shown not only that poor communities and communities of color are disproportionately burdened by society's environmental pollution but also that environmental laws are under enforced in regulatory scheme and serving entirely different interests specifically private nuisance vindicates the bundle of property rights the come along courts have protected for centuries the right to use and enjoy one's home free from unreasonable interference by one's name such rights are not extinguished simply because one's neighbor is a factory or or a landfill as in this case for ordinary rights depends upon the ability to aggregate small claims and modest resources into a class action yet here a lower court held that when many persons are affected by a nuisance a the same time that you can't use your house to sit around you swimming pool you're also making a public nuisance claim against the odors in the air that are causing that that's correct and property private property excuse me and then anything such after should be more liable for their invasions not less liable you know you are as i see that's my time if the court has any further questions i'm happy to answer them otherwise the mickey respectfully request of this my name is eric cline i represent bethlehem landfill company plaintiffs ask this court to be the st appellate court state or federal to recognize a private right of action for mass nuisance they haven't labeled it that way but they've brought a claim in which they claim to be affected in the exact same way as twenty thousand other some people massed nuisance claims what this is about twenty thousand other landowners or writers or twenty thousand people who  circulate through this area the former your d honor they allege eight thousand four hundred households are in their geographic area if you assume that to have people roughly as is the pennsylvania national average live in those eight thousand four hundred households d we're talking about tens of thousands of only can houses were affected you have no problem because you pollute over a much bigger area you're saying it's too big we can't we can't solve the problem that's correct your honor and that is not right number that is it one hundred or two hundred thousand there is no way a court is going to be able to draw a line at an exact number but the pennsylvania supreme court has provided a test for that's more flexible than just a hard number that does draw a a boundary between private nuisance private nuisance action so a neighborhood can be densely populated it can be very sparsely and that's exactly the beauty of a test like this because this is a tricky area of law where there cannot be hard and fast rules we have to have a flexible standard and you're exactly right  of that neighborhood can be densely populated a work could be area that doesn't have done city and that's going to matter because the key factor here is the number of plaintiffs when it gets too large what you're talking about is a fundamentally public problem that deserves to be handled by public authorities that are accountable and can stop the endless suppose that they wouldn't do it that that's not exactly the case here because de has taken steps going to deal with this problem the moghuls plaintiffs in this position lots of other remedies number one pennsylvania's solid waste management act says not just that state authorities but local authorities can bring public nuisance action in the law and this is way too big because once it affects a certain number of people it is fundamentally the public's business so here that's a very he hasn't said because of a supreme court has not said no no i actually think that the pennsylvania supreme court has in fact said it if you look at the reasoning of the cases that have come before and so to address that it was suggested by opposing counsel that this is a new and creative argument that we're making in fact take a look at a case called edmunds be duff from one thousand and twenty five of the pennsylvania supreme court that's a case where one hundred years ago a lawyer stood before the pennsylvania supreme court and made the exact same argument i'm making here which is to say once a private nuisance gets to be too big it is fundamentally a public nuisance and a private plaintiff can't bring it any more unless there is a special or distinct injury now in edmonds v duff the pennsylvania supreme court did not say that's crazy that's a brand new theory that's not newton's law works that's not what they said at all they said no no that may be but in this case the number is small enough and this gets to your question judge or strep oh that was a case where the pennsylvania supreme court hopefully did some number telling there were one hundred and forty plaintiffs in a neighborhood that the court said was at least four hundred households and more that weren't counted so what you had there was a subset of the neighborhood and because of that the pennsylvania supreme court said there you go this is a small enough private nuisance action that these plaintiffs can sue the amusement park that was coming into their neighborhood it was an application of the earlier principle in gavigan that i referenced a moment ago where the court said you plaintiff you're alleging that there's oil in your basement from industrial operations nearby you can bring this action because you have an injury distinct from what has been suffered in the neighborhood that was the said because your injury is distinct from the rest of the neighborhood you may bring a private action if the whole neighborhood had been affected the logic of gavigan as the court spelled it out would have been different at that becomes a public matter and that's not a new argument but we see it becomes a public matter that when you can't bring a class action if it's a public matter it means that there is not a private right of action for nuisance but i do want to talk about the other area encompasses the entire borough of freeman's book and more prima's book has municipal solicitor that person whose every single constituent is in this proposed class is empowered to bring a public nuisance action the same pennsylvania law and we're arguing here that they don't have the right to bring a mass nuisance action a common law so they have to rely on their solicited that is one way they can do it they can rely on a county da to do it any citizen also has rights under almost every environmental statute you can bring a citizen suit action under any environmental statute to enforce a violation of that statute and them include permits so there's a clean air act permit here there is a permit that may be  action is an action for damages and that is important here the problem with a with twenty thousand people bringing a private nuisance action is that twenty thousand private damages actions are an existential threat to a defendant and so with twenty thousand or fifty thousand you can almost get up to the five million the calf of requires they're there to put it's actually i'm not saying that twenty forty one briefly step through those steps number one a justification for certification could be that the question of laws one of the st impression and is of substantial public importance so as to require prompt and definitive resolution this is not a question of  st impression as i said in edmonds one hundred years ago a lawyer stood up and made the same argument that i'm making here and the court there we recognise the principle while saying one hundred and forty plaintiffs is not too big here we have twenty million twenty thousand is far more than an order of magnitude more than a class action case and i know that case was not a class action but to be clear we're not arguing that you could never bring a class action because there can be a class that's one hundred and forty people that's not too small to be a class and in fact there's a case called brainy b exon that he cited in which a class action was brought because there was a spill at a gasoline station and they had to find a class that lived in something like a five or six square block area that would be a proper use of a class action for private nuisance claim that would be appropriate in size so what here if the players divided their twenty thousand up into communities like six different communities and three thousand six hundred is that too much it's too much or are because then they divide those up and ten so we've got communities of three hundred and sixty and all those communities bring actions the reason that doesn't work here are is because that's artful pleading but it doesn't get around the fundamental policy reason why private nuisance is limited in the circumstance you're still just aggregating tens of thousands of planes and once that happens you're talking about a public matter even if you plead it artfully you're aggravating aggravated people who's your honor i don't think anyone disagrees that in this case there is no action for public nuisance privately unless there's a special interest so how do you reconcile this public policy oh you're making with the savings clause that makes it clear that these rights  common law rights and the individual has the ability to bring your are the same as close doesn't create rights where they didn't exist before so my argument is that god didn't exist this never existed it wasn't something that's destroyed we're not making a preemption cases were decided and i would actually like to address fundamentally the reason why it's not just a you know an obstacle bits somehow unfair there's a reason behind in this is the reason if you allow twenty million fifty thousand and ten one million people to bring private nuisances what you are doing is allowing a jury of twelve people to public nuisance claim is different then other types of claims that might be in a class action because it is fundamentally a balancing act but the law on nuisance is a matter of balancing the rights of property owners to the rights of a landfill the rights of a water treatment plant against the needs and rights of property owners nearby so here that you can from the rights management  always a balancing component no cases the answer is your honor let me see if i can do it down if a private nuisance claim is brought by ten million dollars people because the there's contamination in municipal water that creates a private nuisance for ten million people which is an act that would be proper if this court rules in favor of the appellant's if ten million people can sue the water treatment plant for private nuisance the water treatment plant is in dire danger of going  that is something that affects the whole community but the community doesn't have the right in a private nuisance action there have been there is no greater danger to go extinct in this case rocked by the solicitor from the local community you're saying th public at large can't bring it but a source are good yes and the difference is that the solicitor actually has democratic accountability to that community the solicitor is in a role where he can balance that exact question the county d a can do p can do that the attorney general can do that but if two people who live a mile and a half away from a plant or a landfill can have the ability to bring a class action with damages capable of destroying a vital unit  public infrastructure then the two plaintiffs and the jury are the only ones to have any say the hundreds of thousands of other people who rely on a landfill don't have any say in what happens they only have to rely on a properly operated odor is of pollution of the air in the two years you know that i won't i won't i won't pick up that battle at this moment your answer just west point this might get the landfills attention and they may do something to correct yes but your honor the ruling that this court makes is one that is going to have to be used not just in this case but in all sorts of cases there were cases in this circuit and in new york and at the district court decision stand then nobody can bring these claims your honor someone with a private nuisance that actually lives near the landfill could still going you're right it is i mean i don't see anywhere in the law you say lives their life i don't see anywhere in the preservation law this concept of  which the district court found for the private lives well let me there are actually the concept of neighboring which was identified and gather them by the pennsylvania supreme court has been cited in myriad of cases including i would point to one called hercules conflicts between neighboring contemporaneous landowners and judge you can bottom italicize the word neighboring that is not a red herring that's a part of what a private nuisance is it is a claim among neighboring landowners and the problem is once it stops being that we are handing the power to twelve jurors to make decisions that properly belong with democratically  accountable public authorities that is why and i'm going to be clear i'm not asking the court to make that policy judgement i am arguing that that policy judgement is already included in the common law and that that is why what i'm saying and what my counterpart one hundred years ago and in edmonds was saying is not a crazy creative argument that's meant to just protect the wrongdoers from accountability there are many other routes and in fact i've you heard me a couple times say why not a claim from ten million people and that sounds outlandish but in fact there have been cases where private nuisances have been alleged by virtue of alleged contamination  courts one in new jersey one in new york both in the last decade said that's a public nuisance you can't bring a private nuisance claim that's not a crazy theory but we've invented for this case the northern district of new york didn't think so the district of new jersey didn't think so and if plaintiffs theory of nuisance is correct that any size of private nuisance is a pad then a claim five hundred and fifty thousand people one hundred thousand people ten million people d who are water customers in new york city those can all be private nuisance claims against a water utility and that's a situation where the water utility is then at the mercy of the private lawsuit and all the people that depend on clean water who aren't a part of that lawsuit have no recourse they don't have recourse to bare public officials because public officials are cut out of such a lawsuit that's why the law going all the way back to the beginning of nuisance does say that once a private nuisance gets to bid it's fundamentally the public's business and the public's democratically accountable leaders are tasked with dealing with it it's not a crazy theory that we just made up for this case it doesn't remove accountability because there are many other forms of accountability as i mentioned various routes through the solid waste management act in pennsylvania straight through local authorities in every district in  decision of this court would be reversing the decision of the district of new jersey in route b do part of the district of northern just read york in a bigger precinct up in performance plastics where those court said these are municipal water key case the plaintiff said in their brief eight a airborn contaminant is a physical damage to a property that's required for negligence going that is not what dates the rohm and haas says in that negligence claim requires physical damage to a property and the plaintiffs have not alleged that here that's described in more detail in our brief and all the rest of their thank do my best not to set a land speed record in two minutes he is a rebuttal for statement section twenty one b which was quoted in box versus southwest energy production company conduct does not become a public nuisance merely because it interferes with the use and enjoyment of land by a large number of persons it couldn't be any more straightforward the contours of a nuisance claim whether it's a private nuisance claim or whether it's actionable special injury under a public nuisance claim are constrained by their substantive elements you need to have a substantial on reasonable interference this parade of horribles that we're hearing where after the population d of the eastern seaboard brings a class action is just not justified under that there could be accidental liability that it is absolutely the case that that's possible in most class actions but if you can't afford to pay for the property rights of thousands of people you probably just shouldn't take  and thirty two where the court the supreme court of pennsylvania cloke quotes clark in his principles of equity stating that the fact that a private nuisance is also a public nuisance because it affects a large portion of the public should not in any way diminish what would found that there were too many of them to assert claim for private use because that's simply not an element of the cause of action also to clarify the record there are not twenty thousand dollars people in this class the is just rough identified the class wholly includes the owners and occupants of these properties so it's just a way of inflating to a larger number perhaps a salad little bit scarier but as the class is defined we're looking at about about eight thousand five hundred people and then finally leave it to the court to review our authority on the issue of whether or not the presence of contaminants constitutes a physical injury we think that what it states is that either a tangible effect of a pollutant on a property or the fact that it's a hazardous substance which is absolutely the case here