Documentos de Académico
Documentos de Profesional
Documentos de Cultura
nuisance
Public n uisance action against sugar
producer
cane pr oducers
oducer s
Former Florida Governor Claude Kirk, individually and on behalf of the State
Florida, and other state residents brought a public nuisance action against three
corporate sugar producers, including a cooperative, and a chemical company. They
alleged that the sugar producers maintained a public nuisance by the way in which
they cultivated, harvested, and processed sugar cane in South Florida. The chemical
company was accused of disposing of furfural, a by-product derived from sugar
INSIDE processing, by deep-well injection without having a permit issued by the Florida
Department of Environmental Protection.
Kirk and the other plaintiffs alleged damages to the public health and the
environment, including the air and water. In addition, they alleged that the various
• Environmental governmental agencies responsible for enforcing health and environmental laws
acted in complicity with the defendants by failing to enforce the law and by
regulation in Ghana subsidizing the defendant’s conduct. This complicity, the plaintiffs alleged, amounted
to “egregious or devastating agency error” and warranted former Governor Kirk
• Agricultural law suing in his individual capacity.
bibliography The trial court dismissed the action with prejudice, essentially ruling that various
state and federal agencies were better equipped than the court to address the
allegations and that, as to air and water pollution, Florida’s public nuisance statute
• District court affirms impliedly had been superceded by the Florida Air and Water Pollution Control Act.
shared appreciation The intermediate appellate court reversed. On its review, in a decision not yet
obligation released for publication in the permanent law reports, the Florida Supreme Court
held that Florida’s Air and Water Pollution Control Act does not impliedly supercede
statutory public nuisance actions alleging air or water pollution. It also ruled,
however, that “the doctrine of primary jurisdiction counsels in favor of having an
Continued on page 2
IN FUTURE in Oklahoma are governed by the laws of Oklahoma.” Id. at 5 (citation omitted).
Because the text of the portion of the Opinion dealing with the relationship
between the contract grower and the integrator is likely to be of particular interest,
However, when determining whether a contract Coop., Inc., 16 P.3d 450, 459 (Okla. 2000).1 requirements as the maximum number of chicks per
creates an employment relationship, courts look not Some aspects of the contract you describe weigh brooder,theairtemperatureinsidethebarns,andthe
tohowacontractdescribestherelationshipbuttothe in favor of a determination that the grower functions angle of the watering tubes. The contract also
actual roles played by the parties. See Texaco, Inc. as an independent contractor under it. The grower is provides for inspection by the integrator to ensure
v. Layton, 395 P.2d 393, 398 (Okla. 1964) (citing paid based largely on performance, rather than re- that these conditions are complied with. It is ex-
Ottinger v. Morris, 104 P.2d 254 (1939)). ceiving a wage or salary, which is indicative of an tremely difficult to characterize this situation as one
The distinguishing characteristic of an employ- employment relationship. See Mistletoe Express in which the grower fulfills the contract “according to
ment relationship is control over the manner in which Serv., Inc. v. Culp, 353 P.2d 9, 12 (Okla. 1959). In his own method and manner, free from control and
theworkisperformed. See Tulsa County v. Braswell, addition the grower raises the chickens in his own direction of ... [the integrator] in all matters con-
766 P.2d 341, 342 (Okla. 1988) (citing Clarkv.First barns and is free to hire his own employees. Courts nected with the performance of the service, except
Baptist Church, 570 P.2d 327 (Okla. 1977). As the have held that provision of one’s own equipment and astotheresultthereof.” MillerConstr.Co., 458 P.2d
Supreme Court has said: the right to engage employees are factors which at 639.
An independent contractor is one who engages to militate in favor of finding that the person in question Although we cannot in an Opinion determine that
perform a certain service for another, according to is an independent contractor. See id.;Cook Constr. any particular contract growing arrangement estab-
his own method and manner, free from control and Co. v. Longcrier, 405 P.2d 165, 169 (Okla. 1965) lishes an employer-employee relationship, where
direction of his employer in all matters connected (Williams, J., dissenting). the contract provides in detail the manner in which
with the performance of the service, except as to On the other hand, a number of other elements of the livestock or crop is to be raised, the contract
the result thereof. the contract you describe militate in the direction of grower ceases to be an independent contractor and
Miller Constr. Co. v. Wenthold, 458 P.2d 637, 639 an employment relationship. The integrator may becomes an employee.
(Okla. 1969). While the person hiring an independent terminatethecontractatanytimeandforanyreason.
1
contractor is limited to specifying what he or she This has been held to be characteristic of an employ- Bouziden isonlythemostrecentinalonglineof
wants accomplished, an employer may specify and ment relationship. See Mistletoe Express Serv.,353 cases that have described the control of the work
control the manner in which an employee performs P.2d at 12. Some of the tools of the job such as feed, done as “the decisive test” in determining whether a
the actual work itself. This is “[t]he decisive test for medicine, and other supplies are furnished by the employment relationship exists. See, e.g., Barfield
determining whether one is an employee or an integrator which is consistent with an employment v.Barfield,742 P.2d 1107, 1110 (Okla. 1987); Murrell
independent contractor.” Bouziden v. Alfalfa Elec. relationship. See id.; Smith v. St. Francis Hosp., v. Goertz, 597 P.2d 1223, 1225 (Okla. Ct. App.
Inc., 676 P.2d 279, 281 (Okla. Ct. App.1983). Per- 1979); UnionMut.Ins.Cov. Hill, 356 P. 2d 336, 337
formance under the contract may not be assigned to (Okla. 1960); YellowCabCo.v. Wills, 185 P.2d 689,
another, a fact which courts have held tends to 690 (Okla. 1947). There is, somewhat confusingly,
indicate a master-servant relationship. See Cook a parallel line of cases that list several relevant
Constr. Co., 405 P.2d at 169,170. Similarly, the factors and announce that “no one factor is control-
contract you describe provides that the grower may ling.” See, e.g., Duncan v. Powers Imports, 884 P.2d
notraisebirdsforhimselforanyotherintegrator.This 854, 856 (Okla. 1994) (quoting Coleman v. J.C.
sort of exclusivity is a badge of an employment Penney Co., 848 P.2d 1158, 1160 (Okla. 1993));
VOL. 18, NO. 5, WHOLE NO. 210 April 2001 relationship. See Commonwealth Life Ins. Co. v. Swafford v. Williams, 863 P.2d 1215, 1217 (Okla.
AALA Editor..........................Linda Grim McCormick
Gay, 365 P.2d 149, 151 (Okla. 1961) (citations 1993). The apparent tension between these deci-
Rt. 2, Box 292A, 2816 C.R. 16, Alvin, TX 77511 omitted). sions can be resolved by reference to the seminal
Phone: (281) 388-0155 Most importantly, however, the contract you de- case relied upon by all of the “no one factor is
FAX: (281) 388-0155
E-mail: lgmccormick@teacher.esc4.com scribe grants the integrator a remarkable degree of controlling”decisions– Page v. Hardy, 334 P.2d 782
control over the manner in which the chickens are (Okla. 1958). That case held that “control ... in all
Contributing Editors: Susan A. Schneider, University
of Arkansas, Fayettevklle, AR; Christopher R. Kelley, raised. Although the grower provides the barns, the matters connected with the performance of the ser-
University of Arkansas; Irene S. Egyir, North Carolina barns must be outfitted to the integrator’s specifica- vice” is the determinative issue, with the various
State University; Theodore A. Feitshans, North
Carolina State University.
tions. These specifications frequently include such factors offered as means of determining if such
detailsasthewaterstoragecapacityofthebarns,the control exists. Id. at 784.
For AALA membership information, contact William wattage of backup generators, and even the spacing —Christopher R. Kelley, Assistant
P. Babione, Office of the Executive Director, Robert A.
Leflar Law Center, University of Arkansas, Fayetteville, of the light fixtures. The methods for raising the Professor of Law, University of Arkan-
AR 72701. chicks are themselves minutely specified in the sas, Of Counsel, Vann Law Firm,
Agricultural Law Update is published by the contract or an addendum to it which lays out such Camilla, GA
American Agricultural Law Association, Publication
office: Maynard Printing, Inc., 219 New York Ave., Des
Moines, IA 50313. All rights reserved. First class postage
paid at Des Moines, IA 50313. Sugar cane/Cont. from p. 1 public nuisance actions, the Court opined
administrative agency with the experi- that Florida’s Right to Farm Act, Fla.
This publication is designed to provide accurate and
authoritative information in regard to the subject matter ence and expertise to deal with complex Stat. § 823.14, “provides a solid basis for
covered. It is sold with the understanding that the issues....” Flo-Sun, Inc. v. Kirk , Nos. the conclusion that chapter 403 was not
publisher is not engaged in rendering legal, accounting,
or other professional service. If legal advice or other SC95044, SC95045, 2001 WL 298917 at intended to supercede chapter 803.” Flo-
expert assistance is required, the services of a competent *10 (Fla. Mar. 29, 2001). Sun, 2001 WL 29917 at *5. It found this
professional should be sought.
The Florida Supreme Court had rela- “solid basis” in the fact that the Right to
Views expressed herein are those of the individual tively little difficulty in concluding that Farm Act was enacted ten years after
authors and should not be interpreted as statements of Florida’s public nuisance statute, Fla. chapter 403, yet it provided a defense to
policy by the American Agricultural Law Association.
Stat. ch. 823, was not superceded by the public nuisance actions when the chal-
Letters and editorial contributions are welcome and Florida Air and Water Pollution Control lenged agricultural activity was “‘not a
should be directed to Linda Grim McCormick, Editor,
Rt. 2, Box 292A, 2816 C.R. 163, Alvin, TX 77511. Act, Fla. Stat. ch. 403. The latter statute nuisance at the time of its established
specifically states that its purpose is to date of operation ... if the farm operation
Copyright 2001 by American Agricultural Law
Association. No part of this newsletter may be
provide “additional and cumulative rem- conforms to generally accepted agricul-
reproduced or transmitted in any form or by any means, edies....” Fla. Stat. § 403.191. Thus, it did tural and management activities.’” Id.
electronic or mechanical, including photocopying, not expressly repeal chapter 823. Fur- (quoting Fla. Stat. 823.14(4)(a)). This,
recording, or by any information storage or retrieval
system, without permission in writing from the thermore, Florida law strongly counsels according to the Court, indicates that the
publisher. against implied repeals. As to whether Florida legislature “anticipated that ag-
the Florida legislature may have implic- ricultural activities would still be subject
itly intended to repeal the authority for
Cont. on page 3
Sugar cane/Cont. from p. 2 of judges and juries, but within an ad- have been “egregious or devastating
to public nuisance actions even after the ministrative agency’s special competence, agency errors.” In the case before it,
enactment of chapter 403. Id. the court should refrain from exercising plaintiffs sought to invoke this excep-
As to whether the doctrine of primary its jurisdiction over that issue until such tion. The court, however, concluded that
jurisdiction should apply, the Florida time as the issue has been ruled upon by the plaintiffs’ contention in this respect
Supreme Court first described the doc- the agency.” Id. at *6 (citations omitted). was deficient for two reasons. First, as
trine as dictating “that when a party It then acknowledged that it had recog- the exception required, the plaintiffs had
seeks to invoke the original jurisdiction nized certain narrowly-defined instances not alleged that Florida’s Administrative
of a trial court by asserting an issue in which the doctrine was inapplicable. Procedure Act failed to provide a remedy
which is beyond the ordinary experience One of these instances is when there Cont. on p.7
Common law environmental Ghana’s framework for and at the end of 1994, the EPC— which
regulation environmental protection had only an advisory role— was changed
Most environmental law worldwide is Politically, Ghana has the distinction into an Environmental Protection Agency
of relatively recent origin. Historically, of being the first African country south of (EPA) by an Act of Parliament— the 1994
in those nations that derive their law the Sahara to have attained indepen- EPA Act (Act 490)— and given the powers
from the English common law, the com- dence from British Colonial rule (in 1957). of enforcement and control of the envi-
mon law of torts provided the remedy, if The 1992 (4th republic) Constitution pro- ronment. In carrying out its various du-
any, to environmental problems. Torts vides for a unitary system of government ties, the EPA collaborates with other
protecting two rights of ownership in real along the American model of separation institutions and agencies. Notable among
property were, and remain, particularly of powers between the executive and these are the Ministry of Food and Agri-
useful. These are the rights of possession legislature, and an independent judiciary. culture, the Forestry Department, the
and of use and quiet enjoyment. When Provision is made for a decentralized National Energy Board, and some re-
the first is violated, a trespass action system of local government, the corner- search institutions.
may be brought; when the second is vio- stone of which is the District Assembly. The Ministry of Agriculture, for in-
lated, a nuisance action may be brought.1 District Assemblies are corporate bodies stance, is responsible for the implemen-
In either, money damages, injunctive with perpetual existence. District As- tation of a soil conservation program that
relief, or both may be available. semblies are entrusted with certain func- focuses on restoring soil fertility, sup-
However, certain shortcomings in the tions for their respective districts. Among porting the inter-departmental pesticide
common law of torts as practiced in Ghana these are the development, improvement, control program, supporting the agri-
and all common law jurisdictions have and management of human settlements forestry programs, and providing encour-
demonstrated the insufficiency of com- and the environment.2 The 1992 Consti- agement for the development of private
mon law environmental regulation. tution does not expressly grant environ- and community forests with the active
·Causation is often difficult to estab- mental rights to citizens. Some of its involvement of the Forestry Department.
lish, especially where the environmental provisions, however, address the subject. The EPA also collaborates with the fol-
damage is the cumulative effect of many Article 37(9) of the Constitution enjoins lowing institutions on their various ar-
sources of pollution. Without proof of the state to take appropriate measures to eas of specialization: Soil Research Insti-
causation, there can be neither a recov- protect and safeguard the natural envi- tute, which investigates the effects of
ery nor an injunction against future harm. ronment for posterity and to seek co- mechanization and agri-chemicals on
·The tort system is not preventative in operation with other states and bodies agricultural lands; Institute of Renew-
nature; where degradation is irrevers- for the purpose of protecting the wider able Natural Resources, which is work-
ible, the common law may not provide an international environment for mankind. ing on agri-forestry, especially with ref-
adequate remedy. An injunction is also placed on every erence to indigenous species and indig-
·The tort system provides little regu- Ghanaian citizen by article 41k to protect enous agri-forestry systems; Zoology
latory certainty in the context of the and safeguard the environment.3 Department, University of Ghana, which
environment because the approach de- Following the Stockholm Conference examines the effects of pollution on wild-
pends upon the lawsuits of individual on the Human Environment, the govern- life; and Institute of Aquatic Biology,
plaintiffs and jury determinations of the ment of Ghana in 1974 established an which monitors water pollution, environ-
reasonableness of the conduct that was Environmental Protection Council (EPC) mental impacts of water resources devel-
the subject of objection in each situation. (under NRCD 239, amended in 1976- opment projects, and siltation resulting
·Some types of environmental damage SMCD 58) as an advisory institution on from deforestation, soil degradation and
have long latency periods. Years may environmental management. This was erosion.
elapse between the damage and the point one of the first environmental agencies in Part III of Act 490 establishes a Na-
at which the damage becomes recognized. Africa to address problems relating to tional Environment Fund for environ-
Long latency periods make proof of cau- development and the environment. In mental education of the general public;
sation difficult and may result in suits order that a National Environmental research, studies and investigations re-
being time-barred. Policy (NEP) could be formulated, the lating to the functions of the EPA; hu-
In general, the common law does a poor EPC was charged to prepare an Environ- man resource development; and other
job of protecting the environment. Thus mental Action Plan (EAP) for the coun- purposes to be decided upon by the Board
most countries now have enshrined in try. The resulting project, supported by of the EPA, in consultation with the
their constitutions provisions for envi- the World Bank, considered policy pro- Minister.
ronmental protection. posals on mining, industry and hazard- In addition to the above, the Fourth
ous chemicals; marine and coastal eco- Republican Constitution of Ghana, which
systems; human settlements; forestry and was adopted by referendum in 1992, pro-
wildlife; land management; and water vides for the establishment of a National
Irene S. Egyir is a Doctoral candidate, management. In addition, Draft Recom- Development Planning Commission. The
Department of Agricultural Economics, mended Legislation and Supplementary responsibility of the latter is to plan for
University of Ghana, Legon; visiting stu- Reports were prepared, and a set of Dis- the long-term sustainable development
dent, Department of Agricultural and trict Environmental Guidelines to assist of the country. Also, a wide range of
Resource Economics, North Carolina Environmental Committees of the 110 environment-related non-governmental
State University, Raleigh, NC. District Assemblies4 with management organizations (NGOs) are represented in
of their local environment were also put Ghana. Many of these are associated
Theodore A. Feitshans is Extension Spe- in place.5 Environmental law enforce- with the National Union of Environmen-
cialist and Lecturer, Department of Agri- ment is at the district level. tal Non-governmental Organizations
cultural & Resource Economics, North In 1993, the Ministry of Environment, (NUENGO), which was established in
Carolina State University, Raleigh, NC. Science and Technology was established, 1994 with the purpose of coordinating
Ghana/Cont. from p. 5
not know how low this level is, regulating revenue redistribution have been signifi- expand their productive sectors by means
the polluter is made more difficult. Pol- cant in selected developed economies.14 that also increase the negative impact on
luters have different impacts on ambient In developing economies, particularly the environment, law enforcement be-
pollution so the characteristics of pollut- Ghana, where the command and control comes an important issue.
ers must be known so that they can be approach is the only option for regula- The laws are being formulated (from
rewarded for safe disposal or penalized tion, monies gained from environmental both domestic and international fronts)
for unsafe disposal. law enforcement (taxes, fines, grants/ but the resources that are needed to
Court actions and procedures, attor- gifts, etc.) are put in a fund, but whether support their implementation and en-
ney fees and expenditure on additional the funds are used directly for the protec- forcement are meager. The cost is too
input to reduce pollution, etc. add to the tion of the environment is another mat- huge for resource-poor economies:
cost of production. How far can the farmer ter. Ghana’s environmental awareness Ghana’s EPA budget is insignificant, at-
pass this increase on to consumers, the programs are well established, although torneys are few and need further train-
majority of whom are also resource-poor, the coverage is yet to be significant. Most ing, the regulated community is ignorant
whether as urban or rural residents? activities are concentrated in the na- of the law and cannot afford to pay fines
Over thirty-five percent of Ghana's popu- tional capital, which is far removed from or reduce pollution by adding to their cost
lation is below the poverty line, and of where most of the agriculture is located. of production. Consumers do not have the
this, eighty percent live in rural areas.13 Environmental protection laws are re- ability to pay for high-priced essential
cent developments in almost all econo- commodities.
Conclusion mies. The inadequacies of tort law meant Farmers’ need for education is the most
The extent to which environmental that sometimes pollution went unabated. important aspect of enforcement. An ad-
regulation results in a cleaner environ- By direct regulation, pollutants are sup- equate budget for the enforcement agency,
ment is mixed. Measuring the results of posedly controlled from the producers’ EPA, is being called for. Strengthening
economic incentive approaches has been end. While developing economies seek to the capacity of other supporting agen-
done and cost-saving levels (permits) and Cont. on p.7
Ghana/Cont. from p. 6 tive Policy Instruments on Technology Diffusion. J.Env. ISSER, Accra, Ghana.)
12
cies, both governmental and non-govern- Econ. Mgmt. 29: S-43- S-63. Kolstad, C.D. 2000. Environmental Economics.
10
mental, should go a long way to boost the Sarpong, Ibid. Oxford University Press, New York.
11 13
enforcement of environmental regulations It is known that agriculture (including forestry and Vander Mey, B.J.1998. "Key Challenges that Ghana
in Ghana’s developing economy. fisheries) accounts fo 69 percent of the cost of environ- is Facing." Seminar paper.
14
1
Kubasek, Nancy K. and G.S. Silverman. 2000. Envi- mental degradation in Ghana (Vander Mey, B.J. 1998. Kolstad,Op.cit.
ronmental Law. Prentice Hall, New Jersey. "Key Challenges that Ghana is Facing." Seminar paper.
2
The Local Government Act, 1993 (Act 462) s.10.
3
G. A. Sarpong, “From Stockholm to Rio, Supra, n.5. Sugar cane/Cont. from p. 3 tioned that the doctrine of primary juris-
“Environmental Justice in Ghana”, RGL forthcoming. for the agency errors. Second, the plain- diction calls for judicial restraint in such
4
Ghana is divided into 10 regions and 110 districts. tiffs’ complaint failed to allege sufficiently instances, the Court added that the doc-
Some regions have more districts than others but each the ultimate facts required to invoke the trine does not command dismissal of the
region and district is a unit of the central government. exception. In essence, it found the plain- action. Instead, the doctrine only oper-
5
Vormawor, Dennis K.Y. and Joshua Awuku-Apaw. tiffs’ allegations of widespread govern- ates to postpone judicial consideration
1996. Environment and the World of Work--Ghana. Inter-
ment corruption too conclusory and il- until an agency has applied its special
national Labour Organization.
6
Sarpong, C.A. 2000. Environmental Law From the logical to be credited, even for purposes of competence. The Court therefore con-
Ghanaian Perspective. University of Ghana, Legon. a motion to dismiss. Id. at *8-*10. cluded that the trial court’s dismissal of
7
Dankwa, E.v.O. 1995. Environmental Legislation in Finally, the Court noted that the plain- the action was improper.
Ghana. UNEP Legal Consultancy Report, March 1995. tiffs’ action presented numerous issues —Christopher R. Kelley, Assistant
8
Sarpong, Ibid. that were beyond the simple, routine Professor of Law, University of Arkan-
9
Jaffe, A.B. and R.N. Stavins. 1995. Dynamic Incen- matters that could be easily understood sas, Of Counsel, Vann Law Firm,
tivesofEnvironmentalRegulations:theEffectsofAlterna- by trial judges and juries. While it cau- Camilla, GA