Goldie, L. F., E.

English

University of New Mexico

Volume 11 
Issue 2 Marine Pollution Symposium 
Spring 1971 
Amenities Rights - Parallels to Pollution Taxes 
L. F. Goldie E. 
Recommended Citation 
L. F. Goldie E., Amenities Rights - Parallels to Pollution Taxes, 11 Nat. Resources J. 274 (1971). 
Available at: https://digitalrepository.unm.edu/nrj/vol11/iss2/4 
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AMENITIES RIGHTS-PARALLELS TO
POLLUTION TAXESt
L. F. E. GOLDIEtt
I
ENVISAGING AMENITIES RIGHTS
A number of economists and political scientists have expressed
concern about the problem of environment protection. Their pro-
posals have generally been based on either establishing an adminis-
trative agency, or a group of agencies to regulate pollution,' or by
imposing a graduated system of pollution taxation whereby the
amount of tax levied reflects an enterprise's gain from pollution. An
example of the latter is Norman F. Ramsey's suggestion of a pollu-
tion tax to provide the financial means of removing pollution and for
creating disincentives for pollution-creating industrialists.2 Another
advocate, Dr. Mishan, has suggested a graduated "spillover tax" or a
"disamenities tax ' 3 geared to the profits earned from pollution, thus
removing its incentive. (Dr. Mishan defines "spillovers" as the con-
taminations, congestions, pollutions and blights which industry pro-
duces simultaneously with the cornucopia of goods it appears to spill
before us all for the satisfaction of human needs.)4 Reasonable as
such a remedy may appear to be, it should not blind us to other
means whereby the law can give society leverages for its protections
against pollutions and allied harms.
Recently, the state of Michigan enacted the Thomas J. Anderson,
Gordon Rockwell Environmental Protection Act of 1970' whereby
private citizens can obtain judicial scrutiny of private or public con-
duct which might have unreasonable adverse impact on the environ-
tThis brief comment is intended to be a preliminary statement while a longer study is in
the process of completion.
ttCharles H. Stockton Professor of International Law, Naval War College, Newport, R.I.(1970-71); Director, International Legal Studies Program, Syracuse University College of
Law.
1. An example of entrusting control of pollution to administrative control rather than
various more subtle forms of social manipulation is to be found in the British White Paper,
The Protection of the Environment: The Fight Against Pollution, Cmd. No. 4373 (1970).
2. Ramsey, We Need a Pollution Tax!, 36 Bull. of Atomic Scientists 3, 4 (Apr. 1970).
See also Mishan, The Spillover Enemy, 33 Encounter 3 (Dec. 1969) [hereinafter cited as
Mishan].
3. Mishan 5-6 passim.
4. Id. at 4 n. 1. Dr. Mishan limited his argument to those spillovers whose effects
become immediately obvious. He said, "I disregard here the veritable wilderness of ecolog-
ical consequences of man's shortsighted interference with nature .. "
5. Mich. Comp. Laws Ann. § 691.1201 (Supp. 1970). For an indication of federal inter-
est in this field see note 9 infra.
April 19711 AMENITIES RIGHTS-PARALLELS TO POLLUTION TAXES 275
ment.6 This legislation recognizes that each person has a legally en-
forceable right to the protection, preservation and enhancement of
that environment from unreasonable impairment.7 The main thrust
of this act is to prevent such barriers as lack of standing to sue to be
interposed between the citizen and the granting of declaratory and
other equitable relief. Professor Sax, a prime mover and thinker in
the preparation of this legislation, has characterized it as an "environ-
ment protection bid." 8
In addition to this state activity, the United States Congress has
before it a legislative proposal which would arm the individual citizen
with power to vindicate his claim to a protected environment.9 Both
the federal and the state of Michigan versions provide procedural
remedies without specifically indicating any substantive rights. The
proposal here, by contrast, is whether from such procedural starting
points as those offered in the present Michigan statute, or merely by
developing a strictly common law substantive right, courts and legis-
latures have an opportunity of developing amenities rights directly
ascribable to individuals. These could be framed so as to provide
citizens with both the means of effective self-protection in the con-
temporary mass production, mass consumption and mass enter-
tainment society, and the incentives, in addition to altruism or in-
dignation, for utilizing those means to the full.
lI
THE INDIVIDUAL AND HIS CLAIM
Of what should an individual's amenities rights consist? They
would appear to be emerging as an enforceable claim for the protec-
tion of a right to health, by preventing the pollution of the air by
chemicals and by noise, and a right to vindicate the individual's stake
in the community's heritage of a beautiful landscape. There also
appears to be a right of recreation in quiet places or in areas of
dramatic and unspoilt grandeur. Property and community values of a
novel kind seem not to be excluded. They include claims to prevent
erosion of the countryside and blight of the cities. Procedurally, the
6. Id. § 691.1202.
7. Id.
8. Testimony of Joseph L. Sax, Hearings on H.B. 3055 Before the Michigan House
Committee on Conservation and Recreation (mimeo, Jan. 21, 1970) [hereinafter cited as
Hearings on H.B. 30551.
9. See also S.3575, 91st Cong. 2d Sess. (1970). Professor Sax has characterized this Bill
as "version of the Michigan bill adapted to the requirements of federal legislation." See
Testimony of Joseph L. Sax, Hearings on S. 3575, Environmental Protection Bill Before the
Subcomm. on Energy, Environment and Natural Resources of the Senate Comm. on Com-
merce, 91st Cong. 2d Sess. (mimeo, May 12, 1970) [hereinafter cited as Sax, Senate Testi-
mony].
NA TURAL RESOURCES JOURNAL
vindication and such types of personal and property claims as these
could well be undertaken by groups or communities, or by represen-
tative suits, as well as by individuals acting to vindicate rights which
are specifically their own.
The development of individuals' amenities rights to provide the
basis for protection when spillovers invade those individuals' claims
would have the following advantages: (a) Decentralization-the en-
forcement of the obligation not to pollute or deteriorate the environ-
ment would be performed by the individuals who are most directly
harmed by its breach; (b) Building-in spillover costs as a cost of
production-enterprises running the risk of inflicting pollutions on
the environment as a concomitant of their operations would need
to insure against claims, and so the amenities liability insurance
premium would have rather similar effects on costs of production as
would the spillover tax; (c) International operation-judgments won
for invading amenities rights could become entitled to transnational
recognition either by treaty or through extending conflict of law
rules of recognition to them. By analogy, similar rights to these could
be developed to govern international legal relations among states
themselves. This proposal of the development of individuals'
amenities rights is not intended to provide a complete substitution of
Dr. Ramsey's proposed disamenities tax. This amount of taxation
levied could be combined with the insurance system. For example,
an adequate proportion of the spillover tax could be a variable used
to bring up an entrepreneur's production costs when he fails to take
out adequate amenities liability insurance in an attempt to reduce his
premiums below a minimal figure requisite for effective protection.
To this writer the most signficant advantage of the formulation of
private law amenities rights would be their direct and decentralized
effect, in contrast with the centralizing effect of disamenities
taxation or of governmental regulation in the pollution field.
Amenities rights as a branch of private law could give the party
harmed the right to pursue his remedy, rather than depend on the
discretion of a bureaucrat. In addition, the courts' jurisdiction to
award compensation should be combined with an authority to issue
orders forbidding, or conditionally limiting, polluting activities, so
that spillovers causing disamenities could be reduced to a level where
they would have to become tolerable to the individuals and commu-
nities whom they discommoded in the first place. In this way the old
and basic justification of democracy "let the wearer say where the
shoe pinches" would apply. This may be contrasted with a system
relying entirely on disamenities taxes. Under that regime the taxing
authority would presumably collect the amount of the social cost
[Vol. 11
April 1971] AMENITIES RIGHTS-PARALLELS TO POLLUTION TAXES 277
from the entrepreneurs and an anonymous bureaucrat would deter-
mine what the disamenity felt like, where it pinched, and whether
(and if so how) relief should be given. One may suggest, furthermore,
that court orders prohibiting, or conditionally allowing, a spillover
activity on the terms it prescribes may have all the advantages of the
government regulation method of controlling spillovers with few of
the disadvantages of that most centralizing and illiberal of all
methods of meeting the challenge of pollution.
This proposal calls for a further development in terms of the
public interest. Since it clearly has an enormous stake in most spill-
over claims, the state should be recognized as being the custodian of
the future, and thus have the right of being joined as a party plaintiff
in any action to restrain spillovers. In addition, and because the state
must perform a unique custodial function on behalf of the future, it
should also be entitled to bring causes of action independently of
those which individuals may pursue. Such actions should not be
limited to suits to remedy and restore the situation in cases of im-
mediate damage or harm. The state should, for example, be able to
bring actions to restrain pollution of the atmosphere in order to
prevent possible danger to health in the future. It should also be
entitled to prevent abuses of woodlands and lakes in general and
preserve their natural beauty for generations to come. It should have
standing to prevent the slow poisoning of streams and lakes, to pro-
tect the whole chain of life itself as it moves onward through time.
III
THE PUBLIC SECTOR
Establishing "an environmental common law"' 0 of individual,
substantive, and procedural rights requires complementary protec-
tions in the public sector. The Michigan statute provides for such
protections. It adds to the existing considerations which administra-
tive licensing authorities are required to apply, where relevant, for
the prevention of the possibility of pollution. Thus Mich. Comp.
Laws Ann. Sect. 691, 1205 provides:
In any such administrative, licensing or other proceedings, and in
any judicial review thereof, any alleged pollution, impairment or
destruction of the air, water or other natural resources or the public
trust therein, shall be determined, and no conduct shall be author-
ized or approved which does, or is likely to have such effect so long
as there is a feasible and prudent alternative consistent with the
reasonable requirements of the public health, safety and welfare.
10. Hearings on H.B. 3055, supra note 8.
NA TURAL RESOURCES JOURNAL
Although, at least in the federal sphere, such a provision might
appear to duplicate the function of the Water Quality Improvement
Act' 1 and the National Environmental Policy Act of 1969,'2 in
point of fact it does not do so. The watchdogs of the Michigan Act
are the concerned citizens, they have the authority to insist on being
assured that administrative agencies are paying more than mere lip
service to the nation's need for conservation. Had there been, prior
to the federal government's granting of oil leases in the Santa Barbara
Channel in 1967, federal legislation on the books equivalent to the
Michigan statute, together with a growing specific federal common
law on amenities rights intertwined with the federal comptences over
resource management and exploitation, the citizens of Santa Barbara
would have brought suits to enjoin those grants, or to enjoin drilling
on the oil properties granted.' ' In that event the disasters at the
Union Oil Company's sites in the Santa Barbara Channel might never
have occurred. Indeed, they never should have occurred.
IV
PROBLEMS OF ABUSE OF RIGHTS
Should laws restraining pollution, protecting the environment, and
vindicating amenities rights be translated into an interdiction of
further development by business enterprises? Are we faced by a
choice between the reduction of pollution coupled with industrial
and commercial stagnation and a continuously increasing deteriora-
tion of the environment as the cost of continued prosperity and
economic development? Clearly we are not faced by an "either/or"
situation of mindless exploitation versus rigid conservation. The rule
of reasonableness should prevail. Section 3(1) of the Michigan Act"
offers a formula for ensuring that a court should not impose un-
reasonable restrictions on progress nor license abuses of the state's
resources. The party objecting to an enterprise or a project first must
show, prima facie, that the "conduct of the defendant has, or is
likely to pollute, impair the air, water or other natural resources or
the public trust therein." Should the plaintiff succeed in carrying this
burden, the defendant must then present as an affirmative defense
"that there is no feasible and prudent alternative to [his] conduct
and that such conduct is consistent with the promotion of the public
health, safety and welfare in light of the state's paramount concern
11. 33 U.S.C.A. § 1151 notes, 1152, 1155, 1156, 1158, 1160-75 (Supp. 1970).
12. 42 U.S.C.A. § 4321, 4331-35, 4341-47 (Supp. 1970).
13. See e.g., Sax, Senate Testimony at 4.
14. Mich. Comp. Laws Ann. § 691.1203 (Supp. 1970).
[Vol. 11
April 1971] AMENITIES RIGHTS-PARALLELS TO POLLUTION TAXES 279
for the protection of its natural resources from pollution, impair-
ment or destruction."
Secondly, to discourage frivolous or vexatious plaintiffs, Section
2(a) of the Michigan Act gives the courts competence to require the
plaintiff to post a "surety bond or cash not to exceed $500.00"
when it has reason to believe that the plaintiff is not solvent or may
otherwise be unable or unwilling to pay any costs of judgment which
might be rendered against him." s
It is submitted, however, that this legislation does not adequately
protect defendants against the full range of possibly unmeritorious
lawsuits-when, for example, a wealthy plaintiff is resolved to per-
secute a rival enterprise regardless of cost and in order to drive him
from business, or when it is utilized as a leverage for extortion or
exercising undue influence. The possibility that amenities rights legis-
lation may expose defendants to the possibility of racketeering and
blackmail should not be lost sight of. It is suggested, accordingly,
that antipollution laws should also authorize courts to award puni-
tive damages when they have been satisfied that a suit has been
brought frivolously, vexatiously, maliciously or with a criminal in-
tent. In the last situation, as are all the others, the court should be
satisfied with a civil, not a criminal burden of proof and weight of
evidence. This provision should be written clearly into the legislation
in case courts may adopt the opposite viewpoint as a matter of
"interpretation." The reason for the choice of the civil burden of
proof is that only a civil result is envisaged and so policy is best
served by giving the bona fide enterprise the opportunity of ex-
culpating itself by means of the less onerous burden of proof. It is
suggested, furthermore, that since the problem of the unmeritorious
suit touches upon a court's inherent jurisdiction to protect its
process from abuse or contempt, the judges before whom the original
frivolous, vexatious, malicious or criminal suit has been brought
might well be empowered to award punitive damages in the proceed-
ings if they are satisfied that such an award is appropriate. Vesting
such a competence in the trial judge should not be preclusive of a
right of the jury, in deciding a case in which the issue that the case
had been frivolously, vexatiously, maliciously or criminally brought
had been raised in the pleadings as a counterclaim, to award such
punitive damages. Nor should the competence of either the judge or
the jury to award damages to the defendant in the original proceed-
ings be viewed as preclusive of a right to bring a subsequent and
separate claim for punitive damages arising out of the defendant's
15. Mich. Comp. Laws Ann. § 691.1202a (Supp. 1970).
NATURAL RESOURCES JOURNAL
having been forced to submit to a frivolous or otherwise unmeritor-
ious lawsuit and not sought satisfaction by means of a counterclaim.
V
THE INTERNATIONAL SCENE
The New York Times has recently been carrying news items of
another Liberian-flag tanker casualty 1 6 which, like the Torrey Can-
yon disaster of March 1967, threatens major oil pollution damage to
the French and English coasts, as well as, possibly, those of other
Channel and North Sea countries. The recurring maritime pollution
disasters which are appearing with increasing regularity in the news-
papers underscore the need for the international, as well as federal
and state recognition of amenities rights. In the international sphere
these should not only be seen as rights of states in the traditional
sense, but in addition, as human rights and thus, to whatever extent
may be practicable at a given point of time, as enuring to individuals
as subjects of international law. In this way an international law of
amenities rights could be evolved on two levels of international and
transnational relations. On the interstate level, states should be able
to invoke international amenities rights in order to vindicate their
own claims as entities and to espouse claims on behalf of their own
citizens. On the individual and transnational level, they should recog-
nize and respect each others' citizens as individual human beings
independently of governmental rights of recovery or of espousal.
Indeed, the law on amenities rights should be so developed that
states and individuals should, in calculating the spillover effect of
new industrial developments, respect, as having equal claims as their
own citizens, the amenities accorded to foreigners beyond the plan-
ners' national borders. This transnational goal, which may seem so
idealistic, might well be made practical by means of the international
recognition of judgments and without having to wait for the clothing
of individuals with the international legal personality recognized in
the Danzig Railway Officials case. 17
16. See e.g., N.Y. Times, Oct. 25, 1970 at 1, col. 1 and at 14, col. 4.
17. Advisory Opinion Concerning the Jurisdiction of the Courts of Danzig, [1928]
P.C.I.J., ser. B, No. 15, at 17-21.
[Vol. 11


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