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Interesting, Thorfinn, but what you suggest would require legislation (gasp, isn't that what we're trying to avoid?). Here's why: the common law (judge-made law) tradition over the last 500 years has developed a doctrine for nuisance claims that makes it very difficult to prevail by claimants and severely limits the recovery. In fact, without getting too legalistic, the doctrine assumes that some industries, such as pig-farming and tanning, simply must be located somewhere and if it's near you it's tough luck so long as they are acting appropriate for their industry and are in an appropriate location. In short, under the Restatement (Second) of Torts, the "reasonableness" determination in a nuisance case requires a balancing of public benefit vs. the ill effect on you and your property.
Now, as we know, to change that long history of law, you need the legislature to write a statute. The whole purpose, basically, of statutory law is to provide derogations from the common law. So, without some governmental action, we're stuck. Now, the law can just be re-written without creating/delegating an agency to manage it, and that would certainly be good. Of course who in Washington has such political will with Big.Co. Tannery paying to run their campaigns??
I am defending several such nuisance suits in a very (in)famous hazardous cleanup case, and this gives my client some relief from its woes. On the flip side, I am seeking to close down or clean up a power plant in another case, and knowing the limits of this nuisance law, I simply tossed it out the window in favor of a citizen's suit to enforce the Clean Air Act.
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