by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

NUISANCE; ADMINISTRATIVE LAW; PREEMPTION: Notwithstanding approval of state environmental agency and land use authorities, Developer can be permanently enjoined from constructing a landfill under the theory that it is an "anticipatory nuisance" and threatens to pollute surface and ground water sources of neighboring landowners. Sharp v. 251st Street Landfill, Inc., 925 P.2d 546 (Okla. 1996).

Although the developer had obtained approval for the project from the Oklahoma Department of Environmental Quality ("DEQ"), the plaintiffs contended that the landfill would pollute their artesian wells and a creek running through the area and obtained a permanent injunction against it. The Oklahoma Supreme Court upheld the injunction, holding that the presumption that the DEQ had fulfilled the legislative purposes of the Oklahoma Solid Waste Management Act could be overcome by expert testimony that water pollution would likely occur. Although the testimony of plaintiffs' only expert was countered by several experts called by the developer, the trial court had sufficient evidence to permanently enjoin the landfill. Plaintiffs qualified for a permanent injunction by showing that the landfill as designed would probably pollute their water, which met the standard of proving that the business could not be conducted in any manner at the place situated without constituting a substantial injury to other property owners.

Compare: San Diego Gas & Electric Co. v. Covalt, 55 Cal. Rptr. 2d 724 (Cal. 1996) (State PUC has controlling authority regarding siting of transmission lines notwithstanding arguments that such lines constitute a nuisance due to electromagnetic wave emanations.)

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