1 “Quality of life” means different things to different people; moreover, each individual's view and priorities tend to change over time. Preservation of the environment is at present high on the list of priorities of large numbers of people, but it has not always been and it need not continue to be. For recent discussions of the difficulties of defining and measuring the quality of life, see Environmental Studies Division, Environmental Protection Agency, The Quality of Life Concept: A Potential New Tool for Decision-makers (Washington, D.C.: Government Printing Office, 1973); Ben-Chieh Liu, Quality of Life Indicators in U.S. Metropolitan Areas: A Statistical Analysis (New York: Praeger Publishers, 1976).Google Scholar

2 For a broader discussion of these problems, see Gladwin Hill, The Politics of Air Pollution: Public Interest and Pressure Groups, 10 Ariz. L. Rev. 37 (1968); Note, The Politics of Pollution Control, 5 Suffolk U.L. Rev. 1027 (1971). Special aspects are discussed in great detail in the symposium on Environmental Decisionmaking in vol. 62, no. 3, of the Iowa Law Review (Feb. 1977) of which the following papers are particularly pertinent: David Sive, Foreword: Roles and Rules in Environmental Decisionmaking, id. at 637; N. William Hines, A Decade of Nondegradation Policy in Congress and the Courts: The Erratic Pursuit of Clear Air and Clean Water, id. at 643; Sanford E. Gaines, Decisionmaking Procedures at the Environmental Protection Agency, id. at 839.Google Scholar

3 See especially Hines, supra note 2.Google Scholar

4 This danger was demonstrated most forcefully in the famous MIT report for the Club of Rome, Donella H. Meadows et al., The Limits to Growth: Report for the Club of Rome's Project on the Predicament of Mankind (2d ed.; New York: Universe Books, 1974).Google Scholar

5 See especially Comment, The Environmental Lawsuit: Traditional Doctrines and Evolving Theories to Control Pollution, 16 Wayne L. Rev. 1085 (1970); Comment, Equity and the Eco-System: Can Injunctions Clear the Air? 68 Mich. L. Rev. 1254 (1970); Comment, The Role of Private Nuisance Law in the Control of Air Pollution, 10 Ariz. L. Rev. 107 (1968); John C. Esposito, Air and Water Pollution: What to Do While Waiting for Washington, 5 Harv. C.R.-C.L.L. Rev. 32 (1970); Julian Conrad Juergensmeyer, Common Law Remedies and Protection of the Environment, 6 U.B.C.L. Rev. 215 (1971); id., Control of Air Pollution Through the Assertion of Private Rights, 1967 Duke L.J. 1126; James E. Krier, The Polution Problem and Legal Institutions: A Conceptual Overview, 18 U.C.L.A.L. Rev. 429 (1971); Frank E. Maloney, Judicial Protection of the Environment: A New Role for Common-Law Remedies, 25 Vand. L. Rev. 145 (1972); Francis D. Morrissey, Private Nuisance: A Remedy Against Air Pollution, 38 Ins. Counsel J. 367 (1971); Note, Private Remedies for Water Pollution, 70 Colum. L. Rev. 734 (1970).Google Scholar

6 In the early stages of the environmental movement, the courts seemed to be more responsive to the cause of the environment than administrative agencies, and they were used extensively for settling environmental policy issues until the legislatures had had time to formulate official policies and set up the necessary administrative machinery for their enforcement. Since then, the pressure on the courts from the side of the environmentalists has lessened and, instead, the courts are more often called on by polluters and impairers of the environment for protection against actions by environmental protection authorities. See, e.g., Sive, supra note 2. The litigation activity of the environmentalists has by no means ceased—they frequently seek help from the courts against what they regard as too lenient enforcement of the environmental protection laws.Google Scholar

7 See especially Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970) (denying injunction against cement plant but awarding damages as a substitute); Diamond v. General Motors Corp., 20 Cal. App. 3d 374, 97 Cal. Rptr. 639 (1971)(dismissing a class action on behalf of all residents of Los Angeles County as unmanageable).Google Scholar

8 This phenomenon as manifested in public attitudes toward flood insurance and earthquake insurance has been analyzed and described by Howard Kunreuther, Disaster Insurance Protection: Public Policy Lessons (New York: John Wiley & Sons, 1978).Google Scholar

9 See for discussions of the international law problems of pollution: C. B. Bourne, International Law and Pollution of International Rivers and Lakes, 6 U.B.C.L. Rev. 115 (1971); L. F. E. Goldie, International Principles of Responsibility for Pollution, 9 Colum. J. Transnat'l L. 283 (1970); L. C. Green, International Law and Canada's Anti-Pollution Legislation, 50 Or. L. Rev. 462 (1971); Comment, International Air Pollution—United States and Canada—a Joint Approach, 10 Ariz. L. Rev. 138 (1968); Ved P. Nanda, The Establishment of International Standards for Transnational Environmental Injury, 60 Iowa L. Rev. 1089 (1975); Note, United States and Canadian Approaches to Air Pollution Control and the Implications for the Control of Transboundary Pollution, 7 Cornell Int'l L.J. 148 (1974); John E. Read, The Trail Smelter Dispute, 1 Canadian Y.B. Int'l L. 213 (1963); Alfred P. Rubin, Pollution by Analogy: The Trail Smelter Arbitration, 50 Or. L. Rev. 259 (1971); Thomas A. Mensah, International Environmental Law: International Conventions Concerning Oil Pollution at Sea, 8 Case W. Res. J. Int'l L. 110 (1976); Peter N. Swan, International and National Approaches to Oil Pollution Responsibility: An Emerging Regime for a Global Problem, 50 Or. L. Rev. 506 (1971).Google Scholar

10 This particular danger has been recognized, and efforts are being made by various groups interested in the environment to develop alternative procedures that encourage negotiations and a combination of the resources and expertise of all concerned in search for the best overall solution. See Francis X. Murray, Using ‘The Rule of Reason,’ E.P.A.J., Jan. 1978, at 12; John Busterud, Environmental Conflict Resolution, Envt'l L., Q. Newsletter [ABA] Standing Committee Envt'l L., Spring 1979, at 4.Google Scholar

11 See, e.g., John E. Settle, Jr., Guarding the Guardian: The “Citizen Suit” for Clean Air, 3 Envt'l L. 1 (1973).Google Scholar

12 See, e.g., Mountain Copper Co. v. United States, 142 F. 625 (9th Cir. 1906), appeal dismissed by stipulation, 212 U.S. 587 (1908), where a mountain area with little soil and no vegetation was regarded as “worthless” by the court and therefore of insufficient social utility to sustain a petition for an injunction against copper smelter emissions. Since 1906, of course, attitudes about the value of public lands in their natural state have changed considerably, as is shown by the case cited in note 13 infra.Google Scholar

13 While those elements of the environment that are one of a kind can be said to have no price, those that can be replaced, such as individual living organisms of widely distributed species, do have a price—a price that becomes easier to determine as advances in environmental research and natural resources management are providing both the methods for measuring losses and a market for replacements. A good illustration can be found in the recent case Puerto Rico v. S.S. Zoe Colocotroni, 456 F. Supp. 1327 (D.P.R. 1978), where the court concluded from the testimony that a total of 92,109,720 marine animals of various species had been killed by an oil spill and that replacement costs per animal ranged between $0.06 and $4.50, so that, accepting the lowest price for an individual animal, damages of $5,526,583.20 could be recovered by the government from the owners of the vessel that had caused the spill. The opinion raises some doubts inasmuch as it ignores the probability of natural recovery; this and other issues concerning the merits of the case are discussed elsewhere.Google Scholar

14 See especially Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).CrossRefGoogle Scholar

15 This is not meant to imply that the situation is governed exclusively by Parkinson's law. There is a need for cleanup and restoration after incidents of pollution; the public does place an increasing value on a clean environment, which value, however, usually is not reflected adequately in the budgets of environmental protection agencies; and cleanup technologies and methods are still not fully developed. Where, therefore, funds, equipment, and manpower are available, they are meant to be expended and may themselves serve as a measure of the value of the environment as appraised by the legislature that approved the budget. The possibility of overreaction and waste should not be discounted, but neither should it be forgotten that cleanup decisions must often be made under time pressure and before all the information is available that would allow a thorough appraisal of the long-term consequences of the incident.Google Scholar

16 For instance, the present version of the Federal Water Pollution Control Act entitles primarily the federal government to compensation for cleanup costs but extends the concept to include costs incurred by the federal government or a state government for the purpose of restoring natural resources. 33 U.S.C.A. $ 1321(f)(4), (5) (1978).Google Scholar

17 See pp. 365–66 infra.Google Scholar

18 For details and references see notes 129–34 infra and text at same.Google Scholar

19 Spur Indus., Inc. v. Del E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700 (1972). See also p. 384 infra.Google Scholar

20 See generally Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. Chi. L. Rev. 681 (1973). Zoning and other rules concerning land use are, of course, rather reliable indicators of public policy and as such are entitled to considerable weight in deciding individual nuisance cases. See pp. 381–82 infra.Google Scholar

21 See, e.g., Rockville Water & Aqueduct Co. v. Koelsch, 90 Conn. 171, 96 A. 947 (1916), applying a statutory provision first enacted in 1883. A provision to the same effect still exists in Conn. Gen. Stat. Ann. $ 25–53 (West 1975).Google Scholar

22 See p. 380 infra.Google Scholar

23 21 U.S.C.A. §§ 114a, 134a(d) (Cum. Supp. 1979).Google Scholar

24 7 U.S.C.A. § 136m (Cum. Supp. 1979).Google Scholar

25 15 U.S.C.A. § 2624(a) (Cum. Supp. 1979).Google Scholar

26 Mich. Comp. Laws Ann. §§ 288.424 (6) (milk), 288.427 (cattle) (1979). For details, see Comment, Catastrophic Chemical Contamination: A Response to the Michigan PBB Episode, 1978 S. Ill. U.L.J. 223.Google Scholar

27 Leet v. Montgomery County, 264 Md. 606, 287 A.2d 491 (1972).Google Scholar

28 Some recent developments have moved in the opposite direction—toward the premise that for every injury there must be compensation, regardless of the circumstances, and that the source of the compensation is of secondary importance. It would be premature, however, to proclaim a new general rule.Google Scholar

29 See generally C. F. Trenerry, The Origin and Early History of Insurance (London: P. S. King & Son, 1926).Google Scholar

30 Tort law did not, however, evolve directly in response to a clearly perceived need for the compensation of damage. Rather, its origins seem to have been in the criminal sanctions that were devised as a substitute for primitive self-defense and revenge. The payments imposed on wrongdoers were punitive and only late and gradually took on elements of compensation commensurate to the amount of damage. See, e.g., Wex S. Malone, Ruminations on the Role of Fault in the History of Torts, in The Origin and Development of the Negligence Action: Studies of the Role of Fault in Automobile Accident Compensation Law, Department of Transportation Automobile Insurance and Compensation Study 1 (Washington, D.C.: Government Printing Office, 1970). To this day, tort law has retained a large number of punitive elements, which are inconsistent with a purely compensatory function.Google Scholar

31 The development of the negligence action has been the subject of intensive research and detailed discussion. See, e.g., the four studies published in The Origin and Development of the Negligence Action, supra note 30: Malone, supra note 30; Fleming James, Analysis of the Origin and Development of the Negligence Action, at 35; Cornelius J. Peck, Negligence and Liability Without Fault in Tort Law, at 51: and Dix W. Noel, Comparison of Strict Liability in Products Area and Automobile Accident Reparations, at 67. Each of these articles contains numerous references to other sources.Google Scholar

32 Id.Google Scholar

33 On the public policy underlying social security and government insurance programs, see, e.g., Roy Lubove, The Struggle for Social Security 1900–1935 (Cambridge, Mass.: Harvard University Press, 1968).Google Scholar

34 See, e.g., Spencer L. Kimball, Insurance and the Evolution of Public Policy, Annals Soc'y Chartered Prop. & Cas. Underwriters, Summer 1962, at 127.Google Scholar

35 See especially Robert E. Keeton & Jeffrey O'Connell, Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance (Boston: Little, Brown & Co., 1965); Jeffrey O'Connell, The Interlocking Death and Rebirth of Contract and Tort, 75 Mich. L. Rev. 659 (1977).Google Scholar

36 Keeton & O'Connell, supra note 35. See also Kimball, supra note 34; Werner Pfennigstorf, Unification of the Protection of Traffic Victims in Europe, 15 Am. J. Comp. L. 436 (1966–67).CrossRefGoogle Scholar

37 See, e.g., Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972); R. H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960); Ellickson, supra note 20; Comment, Internalizing Externalities: Nuisance Law and Economic Efficiency, 53 N.Y.U.L. Rev. 219 (1978).Google Scholar

38 For the OECD, the polluter-pays principle was first announced in the Recommendation of the Council on Guiding Principles Concerning International Economic Aspects of Environmental Policies, of May 26, 1972. For a text of the recommendation and a discussion of the principle, see Organisation for Economic Co-operation and Development, OECD and the Environment 28 (Paris: Organisation for Economic Co-operation and Development, 1976).Google Scholar

39 The Council of Ministers of the EC adopted the polluter-pays principle in its recommendation of Mar. 3, 1975, O. J. Eur. Comm., (No. L 194) 1 (1975).Google Scholar

40 For the OECD: Recommendation of the Council on the Implementation of the Polluter-Pays Principle, of Nov. 14, 1974, inOECD and the Environment, supra note 38, at 50; for the EC: annex to the council recommendation of Mar. 3, 1975, supra note 39, at 2.Google Scholar

41 See, e.g., William Lloyd Prosser, The Principle of Rylands v. Fletcher, in Selected Topics On the Law of Torts, Thomas M. Cooley Lectures, Fourth Series 135 (Ann Arbor: University of Michigan Law School, 1953); Peter N. Davis, Theories of Water Pollution Litigation, 1971 Wis. L. Rev. 738.Google Scholar

42 See the references in note 5 supra.Google Scholar

43 See the references in note 31 supra and also W. Friedmann, Modern Trends in the Law of Torts, 1 Mod. L. Rev. 39 (1937); id., Nuisance, Negligence and the Overlapping of Torts, 3 Mod. L. Rev. 305 (1940).Google Scholar

44 See the discussion of the concepts of public and private nuisance in Restatement (Second) of Torts 3–32 (Tent. Draft No. 17, 1971).Google Scholar

45 See note 31 supra and the series of articles by Richard A. Epstein: A Theory of Strict Liability, 2 J. Legal Stud. 151 (1973); Defenses and Subsequent Pleas in a System of Strict Liability, 3 J. Legal Stud. 165 (1974); Intentional Harms, 4 J. Legal Stud. 391 (1975).Google Scholar

46 See note I supra.Google Scholar

47 The Reserve Mining case in Minnesota, the Scott paper case in Wisconsin, and many others highlight the importance of the perspective from which one views environment-related cases. The polluter-pays principle is not one that inevitably evolves in the context of real-life legal warfare, for the combatants often tend to be middle-class and often rather doctrinaire groups or individuals who are not directly affected (the Sierra Club, for example) versus heavily involved polluting industrial firms in alliance with their employees, the latter with both profits and livelihood at stake.Google Scholar

48 See generally on the role of intent as an element of tort liability: William L. Prosser, Handbook of the Law of Torts 30–31 (4th ed.; St. Paul, Minn: West Publishing Co., 1971); and for a broadbased theory of intentional harms: Epstein, Intentional Harms, supra note 45. Intentional infliction of harm has not heretofore been recognized as an independent and separate tort but has been one element among others grounding some of the traditional forms of action.Google Scholar

49 Prosser, supra note 48, at 31–34.Google Scholar

50 Id. at 98–138.Google Scholar

51 See, e.g., E. Rauh & Sons Fertilizer Co. v. Shreffler, 139 F.2d 38 (6th Cir. 1943), where the court said that even an accidental breakdown of the exhaust cleaning device does not change the character of the operation as an intentional act.Google Scholar

52 See p. 385 infra.Google Scholar

53 See pp. 371–73 infra.Google Scholar

54 Nuisance requires an interference with the right to use and enjoy real property. See p. 379 infra.Google Scholar

55 In fact, pollution damages caused by accidents, especially automobile and railroad accidents, have routinely been compensated on the same basis as other accidental damages.Google Scholar

56 See, e.g., Hagy v. Allied Chem. & Dye Corp., 122 Cal. App. 2d 361, 265 P.2d 86 (1953) (injury to larynx of automobile passenger suffered while driving through sulfuric acid smog caused by effort to start up acid factory during inversion situation); Reynolds Metals Co. v. Yturbide, 258 F.2d 321 (9th Cir.), cert. denied, 358 U.S. 840 (1958) (fluoride poisoning caused by aluminum plant emissions); Greyhound Corp. v. Bakley, 22 F.2d 401 (9th Cir. 1958) (carbon monoxide poisoning from bus engine exhausts).Google Scholar

57 See, e.g., American Cyanamid Co. v. Sparto, 267 F.2d 425 (5th Cir. 1959).Google Scholar

58 See, e.g., Oppen v. Aetna Ins. Co., 485 F.2d 252 (9th Cir. 1973).Google Scholar

59 See American Cyanamid Co. v. Sparto, 267 F.2d 425 (5th Cir. 1959).Google Scholar

60 See Hagy v. Allied Chem. & Dye Corp., 122 Cal. App. 2d 361, 265 P.2d 86 (1953); Reynolds Metals Co. v. Yturbide, 258 F.2d 321 (9th Cir.), cert. denied, 358 U.S. 840 (1958); Greyhound Corp. v. Blakley, 262 F.2d 401 (9th Cir. 1958).Google Scholar

61 In the Hagy case, supra note 60, the victim was already suffering from cancer of the larynx, which, however, was “dormant” and was alleged to have been brought to an acute stage by the effect of the sulfuric acid fumes.Google Scholar

62 The best illustration is air pollution caused by automobile traffic. By now, every urban automobile user and every automobile manufacturer and automobile dealer knows both about the health hazards caused by urban smog and about the role of automobile traffic in producing the smog, and thus each could potentially be subject to liability under negligence principles. Yet the very number of polluters and of victims and the fact that a majority of those involved are both polluters and victims make it impractical to litigate a claim of this kind. See Diamond v. General Motors Corp., 20 Cal. App. 3d 374, 97 Cal. Rptr. 639 (1971) (class action on behalf of the (7,119,184) residents of Los Angeles County against 293 named industrial corporations and municipalities as well as 1,000 unnamed individuals asking for damages amounting to several billion dollars and injunctive relief), where the court also found that the remedies asked for were preempted by federal legislation.Google Scholar

63 Heck v. Beryllium Corp., 424 Pa. 140, 226 A.2d 87 (1966).Google Scholar

64 This and similar compensation systems will be discussed in detail in the second article. For a description of the Japanese program, see Julian Gresser, The 1973 Japanese Law for the Compensation of Pollution-related Health Damage: An Introductory Assessment, 8 Law in Japan 91 (1975) reprinted in 5 E.L.R. 50229 (1975); Stephen M. Soble, A Proposal for the Administrative Compensation of Victims of Toxic Substance Pollution: A Model Act, 14 Harv. J. Legis. 683 (1977).Google Scholar

65 See, e.g., William A. Thomas, Judicial Treatment of Scientific Uncertainty in the Reserve Mining Case, Proceedings of the Fourth Symposium on Statistics and the Environment 1 (Washington, D.C.: American Statistical Association, 1977).Google Scholar

66 Reynolds Metals Co. v. Yturbide, 258 F.2d 321 (9th Cir.), cert. denied, 358 U.S. 840 (1958).Google Scholar

67 Nagy v. Allied Chem. & Dye Corp., 122 Cal. App. 2d 361, 265 P.2d 86 (1953).Google Scholar

68 American Cyanamid Co. v. Sparto, 267 F.2d 425 (5th Cir. 1959).Google Scholar

69 California v. S.S. Bornemouth, 318 F. Supp. 839 (C.D. Cal. 1970).Google Scholar

70 See, e.g., Tomlinson v. Bailey, 289 P.2d 384 (Okla. 1954).CrossRefGoogle Scholar

71 See, e.g., Heck v. Beryllium Corp., 424 Pa. 140, 226 A.2d 87 (1966).Google Scholar

72 See pp. 381–82 infra.Google Scholar

73 See generally Epstein, Strict Liability, supra note 45.Google Scholar

74 Rylands v. Fletcher, L.R. 3 H.L. 330 (1868); for details, see Prosser, supra note 41.Google Scholar

75 Restatement (Second) of Torts, chs. 20 and 21 (Tent. Draft No. 10, 1964).Google Scholar

76 See especially Malone, supra note 30, at 26–33; Peck, supra note 31.Google Scholar

77 Supra note 74.Google Scholar

78 For a fairly detailed description of the history of the case on its way through the courts, see Malone, supra note 30.Google Scholar

79 For details and references, see Prosser, supra note 41, at 149–52, who claims that those American courts that rejected the doctrine did so only because they had first misstated it—or it had been misstated by counsel—by ignoring the limitation to nonnormal use added by the House of Lords.Google Scholar

80 Id. at 512 with many case references.Google Scholar

81 See, e.g., Luthringer v. Moore, 31 Cal. 2d 489, 190 P.2d 1 (1948). For more references, see Prosser, supra note 41, at 154–55.Google Scholar

82 These jurisdictions include California—Green v. General Petroleum Corp., 205 Cal. 328, 270 P. 952 (1928); Indiana—Niagara Oil Co. v. Jackson, 48 Ind. App. 238, 91 N.E. 825 (1910); and Kansas—Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953 (1934), rehearing denied, 141 Kan. 6, 40 P.2d 359 (1935).Google Scholar

83 The reasons why Texas has not adopted the doctrine of Rylands v. Fletcher are set out in admirable detail in Turner v. Big Lake Oil Co., 128 Tex. 155, 96 S.W.2d 221 (1936). For Oklahoma, see Gulf Pipe Line Co. v. Aired, 182 Okla. 400, 77 P.2d 1155 (1938).Google Scholar

84 From a long line of cases, see especially Magnolia Petroleum Co. v. Ford, 183 Okla. 14, 79 P.2d 588 (1938); Cleary Petroleum, Inc. v. Copenhaver, 476 P.2d 327 (1970), applying Okla. Stat. Ann. tit. 52, § 296.Google Scholar

85 Gulf Pipe Line Co. v. Aired, 182 Okla. 400, 77 P.2d 1155 (1938).Google Scholar

86 Prosser, supra note 41, at 155, 157–58.Google Scholar

87 See pp. 404–18 infra.Google Scholar

88 For details, see Epstein, Defense and Subsequent Pleas, supra note 45.Google Scholar

89 See, e.g., Chapman Chem. Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820 (1949), concerning crop damage caused by a weed-killing chemical being carried by the wind over an exceptionally long distance, where the court, in dismissing the action against the neighbor who had used the substance on his land, remarked that the action should be brought against the manufacturer, on the ground that the latter had failed to conduct appropriate tests. Another example is the case involving the large-scale contamination of dairy cattle, dairy products, and even the soil in Michigan as the result of the mixing of a flame retardant chemical (PBB) with cattle feed. About 800 claims have been settled for a total amount of about $140 million; about 200 claims are still outstanding and are estimated at between $40 million and $50 million. See Comment, supra note 26; Ellis Simon, Liability for Michigan Feed Poisoning Could Double, Bus. Ins., Sept. 18, 1978, at 82. A lower court has dismissed a test case brought by one of the affected farmers, however, Tacoma v. Farm Bureau Services, Inc., as reported in Chicago Tribune, Oct. 30, 1978, § 1, at 3, cols. 1 & 2.Google Scholar

90 See generally Prosser, supra note 48, at 572–73. For recent thorough reappraisals of the rules and remedy pattern of nuisance law, see Edward Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 Va. L. Rev. 1299 (1977); Richard A. Epstein, Nuisance Law: Corrective Justice and Its Utilitarian Constraints, 8 J. Legal Stud. 49 (1979).Google Scholar

91 See pp. 378–87 infra. Private nuisance is treated separately from public nuisances because it protects only a limited interest—rights in land—while public nuisances are universal in their potential scope of application, limited only by the scope of concerns that under the police power can become the subject of a public nuisance law.Google Scholar

92 See the discussion of proposed § 821B of the Restatement (Second) of Torts 11–12 (Tent. Draft No. 17, 1971).Google Scholar

93 Id. at 13–21, proposed § 821C and comment; Prosser, supra note 48, at 586–91.Google Scholar

94 Restatement (Second) of Torts 13–21 (Tent. Draft No. 17, 1971). According to the Restatement, in order to be “special” the injury suffered by the individual must be different in kind and not only in amount from that suffered by the general public. The Tentative Draft illustrates this by several hypothetical examples.Google Scholar

95 For instance, in Hagy v. Allied Chem. & Dye Corp., 122 Cal. App. 2d 361, 265 P.2d 86 (1953), the condition that caused the injury to the plaintiff (sulfuric acid smog) most certainly also constituted a public nuisance, but that fact was properly ignored by the court in dealing with the plaintiff's claim, which was based on negligence.Google Scholar

96 See the references in note 93 supra.Google Scholar

97 See, e.g., Fisher v. Zumwalt, 128 Cal. 493, 61 P. 82 (1900); Karpisek v. Cather & Sons Constr. Inc., 174 Neb. 234, 117 N.W.2d 322 (1962); and generally John P. S. McLaren, The Common Law Nuisance Actions and the Environmental Battle—Well-tempered Swords or Broken Reeds? 10 Osgoode Hall L.J. 505, 511–17 (1972).Google Scholar

98 See McLaren, supra note 97, and Restatement (Second) of Torts 20–21 (Tent. Draft No. 17, 1971).Google Scholar

99 Prosser, supra note 48, at 63.Google Scholar

100 Id.Google Scholar

101 See, e.g., Walters v. McElroy, 151 Pa. 549, 25 A. 125 (1892).Google Scholar

102 Fairview Farms, Inc. v. Reynolds Metals Co., 176 F. Supp. 178 (D. Or. 1959); Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959), cert. denied, 362 U.S. 918 (1960) (invisible fluoride particles driven by the wind and settling on plaintiff's property).Google Scholar

103 See Comment, A Trend Toward Coalescence of Trespass and Nuisance: Remedy for Invasion of Particulates, 61 Wash. U.L.Q. 62 (1961).Google Scholar

104 Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959), cert. denied, 362 U.S. 918 (1960).Google Scholar

105 For a good summary of the history of the nuisance action and its adaptation to changing economic circumstances in England, see Joel Franklin Brenner, Nuisance Law and the Industrial Revolution, 3 J. Legal Stud. 403 (1974); for corresponding developments in the United States, see Paul M. Kurtz, Nineteenth Century Anti-entrepreneurial Nuisance Injunctions—Avoiding the Chancellor, 17 Wm. & Mary L. Rev. 621 (1976).Google Scholar

106 See, e.g., Aldred's Case, 9 Co. Rep. 57b, 77 Eng. Rep. 816 (K.B. 1611) (pigsty). Other references are given by Brenner, supra note 105, at 405–6.Google Scholar

107 Digest 8.5.8.5.Google Scholar

108 See generally Prosser, supra note 48, at 591; Brenner, supra note 105; Restatement (Second) of Torts 3–32 (Tent. Draft No. 17, 1971) and 1–7 (Tent. Draft No. 18, 1972). For theoretical analyses and suggestions for reform, see Epstein and Rabin, both supra note 90.Google Scholar

109 Prosser, supra note 48, at 591.Google Scholar

110 Brenner, supra note 105, at 411.Google Scholar

111 Section 826 of the Restatement (Second) of Torts (Tent. Draft. No. 17, 1971) refers to the “utility” of the conduct, which must be balanced against the gravity of the harm suffered by the other party. Sections 829–31 (Tent. Draft No. 18, 1972) exemplify the balancing process.Google Scholar

112 Brenner, supra note 105, at 405–6.Google Scholar

113 The nineteenth-century English courts disregarded “elegant or dainty modes and habits of living” in favor of “plain and sober and simple notions.” See Brenner, supra note 105, at 409–10. The concept of hypersensitivity is discussed extensively by Epstein, supra note 90, at 90–94.Google Scholar

114 See pp. 376–77 supra.Google Scholar

115 Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27 (1884).Google Scholar

116 Atchison, T. & S.F. Ry. v. Armstrong, 71 Kan. 366, 80 P. 978 (1905), following, and referring to, a long line of precedents.Google Scholar

117 Levin v. Goodwin, 191 Mass. 341, 77 N.E. 718 (1906).Google Scholar

118 See pp. 402–4 infra.Google Scholar

119 In an exceptional case, where construction and operation of an engine roundhouse by a railroad rendered a church building useless for worship, the United States Supreme Court found that the railroad's license was limited by the underlying legislation and did not give the railroad the right to construct the engine shed in that precise location in such a way as to interfere with the rights of others. It confirmed the lower court's decision awarding damages to the congregation. Baltimore & Potomac R.R. v. Fifth Baptist Church, 108 U.S. 317 (1883).Google Scholar

120 See generally Comment, Real Property—the Effect of Zoning Ordinances on the Law of Nuisance, 54 Mich. L. Rev. 266 (1955); Note, Zoning Ordinances and Common-Law Nuisance, 16 Syracuse L. Rev. 860 (1965).Google Scholar

121 See, e.g., Cal. Civ. Proc. Code § 731a (West Supp. 1978): Whenever any city, city and county, or county shall have established zones or districts under authority of law wherein certain manufacturing or commercial or airport uses are expressly permitted, except in an action to abate a public nuisance brought in the name of the people of the State of California, no person or persons, firm or corporation shall be enjoined or restrained by the injunctive process from the reasonable and necessary operation in any such industrial or commercial zone or airport of any use expressly permitted therein, nor shall such use be deemed a nuisance without evidence of the employment of unnecessary and injurious methods of operation. Nothing in this act shall be deemed to apply to the regulation and working hours of canneries, fertilizing plants, refineries, and other similar establishments whose operation produce [sic] offensive odors. (As amended Stats. 1959, c. 795, p. 2808, § 2.)Google Scholar

122 See, e.g., Bove v. Donner-Hanna Coke Corp., 142 Misc. 329, 236 App. Div. 37, 254 N.Y.S. 403 (1931). Courts have often refused to enjoin industrial operations even in the absence of a formal zoning law where the operation was carried on in an area that had customarily been used primarily for industrial purposes. See Riter v. Keokuk Electro-Metals Co., 248 Iowa 710, 82 N.W.2d 151 (1957).Google Scholar

123 For case references, see Comment, supra note 120, at 270–71, and Note, supra note 120, at 866–67.Google Scholar

124 See Comment, supra note 120, at 270–71, and Note, supra note 120, at 866–67.Google Scholar

125 See, e.g., Sweet v. Campbell, 282 N.Y. 146, 25 N.E.2d 963 (1940); Jones v. Chapel Hill, Inc., 273 App. Div. 510, 77 N.Y.S.2d 867 (1948); Note, supra note 120, at 864–65.Google Scholar

126 Most eloquently: Dill v. Excel Packing Co., 183 Kan. 513, 331 P.2d 539 (1958). See also Restatement (Second) of Torts, § 840D (Tent. Draft No. 16, 1970); and for a critical discussion of the concept: Rabin, supra note 90, at 1321–29.Google Scholar

127 See, e.g., Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 A. 900 (1890).Google Scholar

128 See, e.g., Restatement (Second) of Torts, Comment b to § 840D (Tent. Draft No. 16, 1970); Rabin, supra note 90, at 1321–29.Google Scholar

129 For a general discussion of this problem, including a critique of proposed § 840D of the Restatement (Second) of Torts (Tent. Draft No. 16, 1970), see Rabin, supra note 90, at 1321–29. See also Martin A. Levitin, Change of Neighborhood in Nuisance Cases, 13 Clev.-Mar. L. Rev. 340 (1964).Google Scholar

130 See Hartung v. County of Milwaukee, 2 Wis. 2d 269, 86 N.W.2d 475 (1957): valid preexisting nonconforming use recognized in the case of a quarry. But see also Brede v. Minnesota Crushed Stone Co., 143 Minn. 374, 173 N.W. 805 (1919).Google Scholar

131 See the cases cited by Rabin, supra note 90, at 1324–25. Changing use patterns are often reflected in zoning or nuisance ordinances. Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878), dealt with a plant for processing animal carcasses, offal, and other refuse from the slaughterhouses of Chicago that, in order to avoid complaints, had been constructed, in 1867, in an uninhabited swampy area of Cook County south of Chicago. Ten years later, that area had developed into the village of Hyde Park, which, immediately upon acquiring the power to pass ordinances, declared the plant to be a nuisance. The Supreme Court declined to protect the owners of the plant against that action.Google Scholar

132 Justice McKenna in Hadacheck v. Sebastian, 239 U.S. 394, 410 (1915). The owner of the brick kiln had also alleged that several of his competitors, whose operations were not affected by zoning ordinances, had influenced the legislation destroy his business. Allegations of a similar nature were expressed in Reinman v. City of Little Rock, 237 U.S. 171 (1915), dealing with the conducting of a livery stable business in a downtown area that had developed into a hotel and shopping district.Google Scholar

133 This does not mean that public nuisance statutes can never constitute a taking. Where a statute designed to protect a municipal drinking water reservoir restricts riparian owners from using their properties in ways that on any other body of water would be perfectly harmless, the restriction can indeed amount to a taking and require compensation. See Rockville Water & Aqueduct Co. v. Koelsch, 90 Conn. 171, 96 A. 947 (1916), and Conn. Gen. Stat. Ann. § 25–53 (West 1975).Google Scholar

134 Spur Indus., Inc. v. Del E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700 (1972). It should be noted that the action, and the damage claim recognized by the court, was directed only against the developer and not against any of the individual homeowners who had bought parcels from him and settled in the immediate vicinity of an existing source of annoyance. See also Ellickson, supra note 20; Rabin, supra note 90; Comment, supra note 37.Google Scholar

135 Section 826, at 33 (Tent. Draft No. 17, 1971): “An intentional invasion of another's interest in the use and enjoyment of land is unreasonable under the rule stated in § 822, unless the utility of the actor's conduct outweighs the gravity of the harm.”Google Scholar

136 See, e.g., Ellickson, supra note 20; Rabin, supra note 90; and Comment, supra note 37.Google Scholar

137 See pp. 398–402 infra.Google Scholar

138 For an account of the discussion at the American Law Institute, see Comment, supra note 37, at 233–36.Google Scholar

139 Restatement (Second) of Torts 1–5 (Tent. Draft No. 18, 1972).Google Scholar

140 See Rabin, supra note 90, at 1317–18.Google Scholar

141 See Prosser, supra note 48, at 582–83.Google Scholar

142 Restatement (Second) of Torts, § 822 (Tent. Draft No. 17, 1971).Google Scholar

143 One of the exceptional cases that do rely heavily on the issue of fault is Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310 (1954), which concerned piles of coal mining wastes (culm banks) that had been accumulated within an established community, had started to burn by spontaneous combustion (a normal and foreseeable occurrence with material of this kind), and among other things emitted hydrogen sulfide gas that damaged the paint on buildings. In rejecting one property owner's claim for damages, the court cited the Restatement and found (against two strong dissents) that the operator of the coal mine had acted neither intentionally nor recklessly. Although this case had been brought as a test case, 25 other claimants continued to fight and eventually were successful in obtaining a finding on the identical facts that the accumulation of the waste piles was indeed unreasonable and intentional: Evans v. Moffat, 388 Pa. 559, 131 A.2d 142 (1957), Evans v. Moffat, 192 Pa. Super. Ct. 204, 160 A.2d 465 (1960). Another important case in this category is Copart Industries v. Consolidated Edison Co., 41 N.Y.2d 564, 362 N.E.2d 968, 394 N.Y.S.2d 169 (1977), where damage to paint on new automobiles was traced to droplets of sulfuric acid from emissions of a power plant. The lower court jury found negligence on the part of the operators of the power plant, and the court of appeals found nothing incorrect in the instructions, which were based on the Restatement. For an analysis of the Copart case, see Comment, supra note 37.Google Scholar

144 For instance, the opinion in Waschak v. Moffat, 379 P. 441, 109 A.2d 310 (1954), although expressly relying on the question of fault, also devotes considerable space to a description of the economic benefits that the community and the surrounding area derived from the activities of the defendant coal mining company. See also Rabin, supra note 90, at 1317–18.Google Scholar

145 See, e.g., United States Smelting Co. v. Sisam, 191 F. 293 (8th Cir. 1911), which cites many other cases involving damage to crops through industrial fumes.Google Scholar

146 Id.; see also Calvin A. Behle, Industry—the Views of the Regulated, 10 Ariz. L. Rev. 74, 78 (1968). The published cases often contain references to earlier voluntary payments for damages arising from the same basic situation. See, e.g., Bliss v. Washoe Copper Co., 186 F. 789 (9th Cir. 1911).Google Scholar

147 For a more extensive discussion of the political, social, and economic factors that have influenced governments and courts in their responses to industrial pollution, see Brenner, supra note 105.Google Scholar

148 See, e.g., McLaren, supra note 97.Google Scholar

149 For a survey and critical analysis of the various legal theories, as well as an exhaustive review of relevant cases, see Davis, supra note 41.Google Scholar

150 Walker Ice Co. v. American Steel & Wire Co., 185 Mass. 463, 70 N.E. 937 (1904); Sandusky Portland Cement Co. v. Dixon Pure Ice Co., 221 F. 200 (7th Cir. 1915). The decision in the former case was based not on riparian rights but on the interpretation of conflicting provisions in the respective leases of the parties.Google Scholar

151 Sandusky Portland Cement Co. v. Dixon Pure Ice Co., 221 F. 200 (7th Cir. 1915).Google Scholar

152 See, e.g., Stauffer v. Miller Soap Co., 151 Pa. 330, 25 A. 95 (1892); Bradley v. Warner, 21 R.I. 36, 41 A. 564 (1898); Lawton v. Herrick, 83 Conn. 417, 76 A. 986 (1910).Google Scholar

153 People's Ice Co. v. Steamer Excelsior, 44 Mich. 229, 6 N.W. 636 (1880).Google Scholar

154 See the discussion pp. 392–93 infra.Google Scholar

155 Restatement (Second) of Torts, § 849, and comments at 61–68 (Tent. Draft No. 17, 1971).Google Scholar

156 For details and references, see Davis, supra note 41.Google Scholar

157 Id.Google Scholar

158 See, e.g., Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty 11–18 (2d ed., Mineola, N.Y.: Foundation Press, 1975).Google Scholar

159 Act of June 19, 1948, c. 526, 62 Stat. 496, 46 U.S.C.A. § 740 (1975 & Cum. Supp. 1979).Google Scholar

160 See, e.g., Harmon v. Chicago, 110 III. 400, 51 Am. Rep. 698 (1884) (tug-boat); People v. Cunard White Star, 280 N.Y. 413, 21 N.E.2d 489 (1939) (S.S. Queen Mary). Applicability of the smoke ordinances is based on the police power, which is still applicable to persons engaged in foreign commerce.Google Scholar

161 Act of Mar. 3, 1851, c. 43, 9 Stat. 635, amended and reenacted several times, now 46 U.S.C.A. § 183 (1958 & Cum. Supp. 1979).Google Scholar

162 This point was cruelly illustrated in the case of the S.S. Torrey Canyon, which, after stranding on a rock off the coast of Cornwall and spilling oil that fouled long stretches of British and French beaches, left nothing but a lifeboat valued at $50 to pay for claims for cleanup costs and other damages amounting to about $22 million. Thus recovery from the legal owner of the vessel was precluded, but the courts concluded that the limitation provisions did not apply to the oil company that had operated the vessel under a time charter. In re Barracuda Tanker Corp., 281 F. Supp. 228 (S.D.N.Y. 1968), rev'd in part, 409 F.2d 1013 (2d Cir. 1969). The time charterer was consequently held liable without limitation, and the claims were eventually settled by payment of $7.2 million. See N. D. Shutler, Pollution of the Sea by Oil, 7 Houston L. Rev. 415, 438 (1970).Google Scholar

163 See especially: Samuel Bergman, No Fault Liability for Oil Pollution Damage, 5 J. Mar. L. & Com. 1 (1973); Alden Lowell Doud, Compensation for Oil Pollution Damage: Further Comment on the Civil Liability and Compensation Fund Conventions, 4 J. Mar. L. & Com. 525 (1973); Alfred A. Lohne, Oil Pollution of Coastal and Inland Waters of the United States Under the Water Quality Improvement Act of 1970, 38 Ins. Counsel J. 49 (1971); Allan I. Mendelsohn, Maritime Liability for Oil Pollution—Domestic and International Law, 38 Geo. Wash. L. Rev. 1 (1969); Thomas R. Post, A Solution to the Problem of Private Compensation in Oil Discharge Situations, 28 U. Miami L. Rev. 524 (1974); Peter N. Swan, International and National Approaches to the Oil Pollution Responsibility: An Emerging Regime for a Global Problem, 50 Or. L. Rev. 506 (1971).Google Scholar

164 See generally Shutler, supra note 162; Thomas R. Post, Private Compensation for Injuries Sustained by the Discharge of Oil from Vessels on the Navigable Waters of the United States: A Survey, 4 J. Mar. L. & Com. 25 (1972); Stephen E. Roady, Remedies in Admiralty for Oil Pollution, 5 Fla. St. U.G. Rev. 361 (1977); Joseph C. Sweeney, Oil Pollution of the Oceans, 37 Fordham L. Rev. 155 (1968); Comment, Admiralty Remedies for Vessel Oil Pollution in Navigable Waters, 7 Tex. Intl. L.J. 121 (1971).Google Scholar

165 See Sweeney, supra note 164, at 170–71; Post, supra note 163; Burgess v. M/V Tamano, 370 F. Supp. 247 (D. Me. 1973); In re New Jersey Barging Corp., 144 F. Supp. 340 (S.D.N.Y. 1956); Oppen v. Aetna Ins. Co., 485 F.2d 252 (9th Cir. 1973).Google Scholar

166 Maryland v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972).Google Scholar

167 See, e.g., California v. S.S. Bornemouth, 318 F. Supp. 839 (C.D. Cal. 1970).Google Scholar

168 See, e.g., Alan P. Bentz, Chemical Identification of Oil Spill Sources, 13 Forum 425 (1978).Google Scholar

169 46 U.S.C.A. § 183(a) (1958 & Cum. Supp. 1979). In cases of personal injury, matters within the privity or knowledge of the master or managing agent are attributed to the owner. 46 U.S.C.A. § 183(e) (1958 & Cum. Supp. 1979).Google Scholar

170 See Gilmore & Black, supra note 158, at 383–404.Google Scholar

171 Id. The 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act have replaced this practice with strict liability compensation claims against the shipowner. Pub. L. No. 92–576, 86 Stat. 1263, § 18(a), 33 U.S.C.A. § 905 (1978).Google Scholar

172 See Puerto Rico v. S.S. Zoe Colocotroni, 456 F. Supp. 1327 (D.P.R. 1978).Google Scholar

173 See Port and Tanker Safety Act of 1978, Pub. L. No. 95–474 of Oct. 17, 1978, 92 Stat. 1471, 33 U.S.C.A. § 1221–1232 (Cum. Supp. 1979).Google Scholar

174 Injunctions are discussed on pp. 398–402 infra. For an extensive discussion of remedies available under nuisance rules, see William H. Rodgers, Jr., Handbook on Environmental Law (Hornbook Series) 143–150 (St. Paul, Minn.: West Publishing Co., 1977). See also Restatement (Second) of Torts, §§ 901–32 (Tent. Draft No. 19, 1973).Google Scholar

175 The general rule is explained, with numerous references, in Union Oil Co. v. Oppen, 501 F.2d 558, 565–68 (9th Cir. 1974).Google Scholar

176 Id.Google Scholar

177 See, e.g., Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir. 1974); Hampton v. North Carolina Pulp Co., 223 N.C. 535, 27 S.E.2d 538 (1943); Masonite Corp. v. Steede, 198 Miss. 530, 23 So. 2d 756 (1945).Google Scholar

178 Fort Worth & R.G. Ry. v. Hancock, 286 S.W. 335 (Tex. Civ. App. 1926).Google Scholar

179 Burgess v. M/V Tamano, 370 F. Supp. 247 (D. Me. 1973).Google Scholar

180 Biakanja v. Irving, 49 Cal. 2d 647, 650, 320 P.2d 16, 19 (1958).Google Scholar

181 Union Oil Co. v. Oppen, 501 F.2d 558, 570–71 (9th Cir. 1974).Google Scholar

182 Oppen v. Aetna Ins. Co., 485 F.2d 252, 260 (9th Cir. 1973), quoted with approval in Union Oil Co. v Oppen, 501 F.2d 558, 570 (9th Cir. 1974). The quoted phrase seems to have been coined by Prosser, supra note 48, at 590–91.Google Scholar

183 Oppen v. Aetna Ins. Co., 485 F.2d 252, 254 (9th Cir. 1973).CrossRefGoogle Scholar

184 Id. at 260.Google Scholar

185 Burgess v. M/V Tamano, 370 F. Supp. 247 (D. Me. 1973).Google Scholar

186 See notes 92–94 supra and text at same.Google Scholar

187 See the cases cited in note 97 supra.Google Scholar

188 For details and references, see annual reports of the Council on Environmental Quality: Environmental Quality—1976: The Seventh Annual Report of the Council on Environmental Quality 30–31, 32–34 (Washington, D.C.: Government Printing Office, 1976), Environmental Quality—1977 at 15–16 (1977); Environmental Quality—1978 at 118, 182, 183, 193 (1978); Douglas M. Costle, Saving Ourselves Broke, EPA J., Apr. 1979, at 2–3; William Goldfarb, Kepone: A Case Study, 8 Envt'l L. 645 (1978).Google Scholar

189 See generally Costle, supra note 188. On the Michigan PBB contamination, see supra note 89.Google Scholar

190 See, e.g., Christina Lord, Seveso Fallout: “Poison Cloud” Effects, Known and Unknown, Linger, European Community, Nov.-Dec. 1976, at 3; Philip Revzin, Chemical Fallout: A Year After Tragedy, Seveso, Italy, Residents Debate the Dangers, Wall St. J., June 29, 1977, at 1, col. 1; and Thomas Whiteside, The Pendulum and the Toxic Cloud: The Course of Dioxin Contamination (New Haven, Conn., and London: Yale University Press, 1979).Google Scholar

191 See p. 372 supra.Google Scholar

192 Puerto Rico v. S.S. Zoe Colocotroni, 456 F. Supp. 1327 (D.P.R. 1978).Google Scholar

193 On the reluctance of the English equity courts to grant injunctions, and the cost and delay involved in these procedures, see Brenner, supra note 105, at 406–7.Google Scholar

194 Richards's Appeal, 57 Pa. 105, 98 Am. Dec. 202 (1868), seems to be the only case where this formula actually appears in the opinion of the court; much more often, it is cited as an argument put forward by the polluter, only to be rejected by the court. See note 195 infra.Google Scholar

195 See especially Walters v. McElroy, 151 Pa. 549, 25 A. 125 (1892); this decision has in turn been cited and quoted by many other courts.Google Scholar

196 See, e.g., McCleery v. Highland Boy Gold Min. Co., 140 F. 951 (C.C.D. Utah 1904); Hulbert v. California Portland Cement Co., 161 Cal. 239, 118 P. 928 (1911).Google Scholar

197 See especially Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904); Powell v. Superior Portland Cement, Inc., 15 Wash. 2d 14, 129 P.2d 536 (1942); Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970); Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 A. 453 (1886).Google Scholar

198 Restatement (Second) of Torts 106 (Tent. Draft No. 22, 1976).Google Scholar

199 An impressive variety of defenses has been used successfully to avoid injunctions; for a detailed description, see Kurtz, supra note 105.Google Scholar

200 See, e.g., Pennsylvania Coal Co. v. Sanderson, 113 Pa. 126, 6 A. 453 (1886); Atchison, T. & S.F. Ry. v. Armstrong, 71 Kan. 366, 80 P. 978 (1905); Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310 (1954); Powell v. Superior Portland Cement, Inc., 15 Wash. 2d 14, 129 P.2d 536 (1942).Google Scholar

201 See, e.g., Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904), where plaintiffs were expressly referred to the damage remedy after their claim for an in-junction had been rejected on the basis of a balancing of equities. The most impressive recent case is Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970).Google Scholar

202 Reynolds Metals Co. v. Lampert, 316 F.2d 272 (9th Cir.), aff'd on rehearing, 324 F.2d 465 (1963), reversed a decision by the trial court refusing to consider the award of punitive damages; the crucial piece of evidence was a statement by the plant manager that paying damages was more economical for the company than reducing fluoride emissions. See also note 146 supra.Google Scholar

203 Ducktown Sulphur, Copper & Iron Co. v. Barnes, 60 S.W. 593 (Tenn. 1900).Google Scholar

204 See, e.g., Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904); Powell v. Superior Portland Cement, Inc., 15 Wash. 2d 14, 129 P.2d 536 (1942); Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870 (1970).Google Scholar

205 See, e.g., Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540, 57 A. 1065 (1904); Renken v. Harvey Aluminum, Inc., 226 F. Supp. 169 (D. Or. 1963).Google Scholar

206 See, e.g., Bourne v. Wilson-Case Lumber Co., 58 Or. 48, 113 P. 52 (1911), prohibiting the burning of wood shavings and other refuse within 500 feet of neighbor's residential property except in furnaces that prevent the escape of ashes and dust and the spreading of the fire.Google Scholar

207 See, e.g., Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519 (1882), prohibiting ringing of factory bells earlier than 6:30 A.M. In this case, however, the factory owner eventually prevailed after obtaining express legislative authorization for ringing his bells whenever convenient. See Sawyer v. Davis, 136 Mass. 239, 49 Am. Rep. 27 (1884). The annotation at 43 Am. Rep. 522 refers to cases restraining the ringing of church bells.Google Scholar

208 See, e.g., Anderson v. American Smelting & Ref. Co., 265 F. 928 (D. Utah 1919); Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371 (1914).Google Scholar

209 See, e.g., Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), establishing the nuisance character of two copper smelting companies, and 237 U.S. 474 and 678 (1915), announcing final opinion and decree against one of the companies.Google Scholar

210 Rabin, supra note 90; Ellickson, supra note 22; Epstein, supra note 90; Comment, Remedial Flexibility in Injunctions Against Nuisances—a Product of the Search for Middle Ground, 7 Willamette L.J. 279 (1971); Comment, supra note 37.Google Scholar

211 Rabin, supra note 90. In exceptional cases, it may even be justified to let the polluter recover damages from a third party who knowingly brought about the situation that forced the polluter to abandon his activity. See Spur Indus., Inc. v. Del E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700 (1972).Google Scholar

212 An early landmark case involving environmental impairment is Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808 (1942). For a general discussion see Stanley L. Lester, Nuisance—as a “Taking” of Property, 17 U. Miami L. Rev. 537 (1963); James M. Kramon, Inverse Condemnation and Air Pollution, 11 Nat. Res. J. 148 (1971).Google Scholar

213 See, e.g., Alevizos v. Metropolitan Airports Comm'n, 298 Minn. 471, 216 N.W.2d 651 (1974).Google Scholar

214 See, e.g., Cunningham v. Town of Tieton, 60 Wash. 434, 374 P.2d 375 (1962).Google Scholar

215 Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808 (1942).Google Scholar

216 City of Kewanee v. Otley, 204 Ill. 402, 68 N.E. 388 (1903) (based on riparian rights); Cunningham v. Town of Tieton, 60 Wash. 434, 374 P.2d 375 (1962).Google Scholar

217 United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny County, 369 U.S. 84 (1962); Town of East Haven v. Eastern Airlines, 470 F.2d 148 (2d Cir. 1972), cert. denied, 411 U.S. 965 (1973); Aaron v. City of Los Angeles, 40 Cal. App. 3d 471, 115 Cal. Rptr. 162 (1974); Alevizos v. Metropolitan Airports Comm'n, 298 Minn. 471, 216 N.W.2d 651 (1974).Google Scholar

218 Cheek v. Floyd County, 308 F. Supp. 777 (N.D. Ga. 1970); City of Yakima v. Dahlin, 5 Wash. App. 129, 485 P.2d 628 (1971).Google Scholar

219 Foss v. Maine Turnpike Auth., 309 A.2d 339 (Me. 1973).Google Scholar

220 See text accompanying notes 93–97 supra.Google Scholar

221 See especially Aaron v. City of Los Angeles, 40 Cal. App. 3d 471, 115 Cal. Rptr. 162 (1974); Alevizos v. Metropolitan Airports Comm'n, 298 Minn. 471, 216 N.W.2d 651 (1974).Google Scholar

222 Alevizos v. Metropolitan Airports Comm'n, 298 Minn. 471, 216 N.W.2d 651 (1974).Google Scholar

223 Compare the cautious approach of United States v. Causby, 328 U.S. 256 (1946), with the broader language used in recent cases such as Aaron v. City of Los Angeles, 40 Cal. App. 3d 471, 115 Cal. Rptr. 162 (1974). On airport noise generally, see William F. Baxter & Lillian R. Altree, Legal Aspects of Airport Noise, 15 J. Law & Econ. 1 (1972); Jerold B. Muskin & John A. Sorrentino, Jr., Externalities in a Regulated Industry: The Aircraft Noise Problem, 67 Am. Econ. Rev. 347 (1977).Google Scholar

224 See, e.g., City of Kewanee v. Otley, 204 Ill. 402, 68 N.E. 388 (1903).Google Scholar

225 Id.Google Scholar

226 Missouri v. Illinois, 200 U.S. 496 (1906). Similar cases include New York v. New Jersey, 256 U.S. 296 (1921); New Jersey v. City of New York, 283 U.S. 473 (1931); Illinois ex rel. Scott v. City of Milwaukee, 366 F. Supp. 298 (N.D. Ill. 1973).Google Scholar

227 See text accompanying note 70 at p. 373 supra.Google Scholar

228 United States v. Republic Steel Corp., 362 U.S. 482 (1960).Google Scholar

229 Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967).Google Scholar

230 42 U.S.C.A. § 7604(a) (Supp. 1978).Google Scholar

231 42 U.S.C.A. § 7604(e) (Supp. 1978).Google Scholar

232 In Delaware Citizens for Clean Air, Inc. v. Stauffer Chem. Co., 367 F. Supp. 1040 (D. Del. 1973), aff'd, 510 F.2d 969 (3d Cir. 1975), the court expressed the opinion that an individual injured by air pollution could bring a citizens' suit under the Clean Air Act to recover damages, but it went on to decide that an organization could not bring suit for recovering damages allegedly suffered by its members. 367 F. Supp. at 1047.Google Scholar

233 Price-Anderson Act of 1957, Pub. L. No. 85–256, § 4, 71 Stat. 576, 42 U.S.C.A. § 2210 (1973 & Cum. Supp. 1979). The act has been extended and amended several times, most recently in 1975 by Pub. L. No. 94–197, § 1, 89 Stat. 1111, 42 U.S.C.A. § 2014 (q) and (t) (Cum. Supp. 1979). For discussions of the general problems of nuclear liability and the approach taken by the Price-Anderson Act, see S. Rep. No. 296, 85th Cong., 1st Sess., of May 9, 1957 [to accompany S. 2051], reprinted in [1957] U.S. Code Cong. & Ad. News 1803; Harold P. Green, Nuclear Power: Risk, Liability, and Indemnity, 71 Mich. L. Rev. 479 (1973); Comment, The Irradiated Plaintiff: Tort Recovery Outside Price-Anderson, 6 Envt'l L. 859 (1976); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978), reversing Carolina Environmental Study Group, Inc., v. United States Atomic Energy Comm'n, 431 F. Supp. 203 (W.D.N.C. 1977).Google Scholar

234 42 U.S.C.A. § 2210 (1973 & Cum. Supp. 1979). The private insurance coverage required by the act has been provided by three insurance pools: American Nuclear Insurers (ANI), composed of stock insurance companies, which provides both first-party coverage for the property of nuclear facility operators and liability coverage; the Mutual Atomic Energy Reinsurance Pool (MAERP); and the Mutual Atomic Energy Liability Underwriters (MAELU). The latter two pools are composed of mutual insurance companies and offer first-party and liability coverages, respectively.Google Scholar

235 42 U.S.C.A. § 2210(e) (Cum Supp. 1979). The limitation of liability was recently attacked as unconstitutional by a group of concerned citizens but was confirmed by the U.S. Supreme Court as a valid exercise of legislative powers within the limits of due process of law: Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978), reversing Carolina Environmental Study Group, Inc. v. United States Atomic Energy Comm'n, 431 F. Supp. 203 (W.D.N.C. 1977).Google Scholar

236 42 U.S.C.A. § 2210(n) (1973 & Cum. Supp. 1979). “Extraordinary nuclear occurrence” is defined in § 2014(j) as one involving substantial damage as determined by the Nuclear Regulatory Commission; the Commission has promulgated regulations further specifying the concept. 10 C.F.R. § 140.84, .85 (1978).Google Scholar

237 For a survey, see Comment, supra note 233. Some of the claims were directed against the United States, which alone may explain the courts' reluctance to apply the strict liability doctrine: Bartholmae Corp. v. United States, 253 F.2d 716 (9th Cir. 1957); Mahoney v. United States, 339 F.2d 605 (6th Cir. 1963). Claims were also rejected for failure to prove a causal connection between exposure and injury—a problem that is common to most radiation or contamination cases regardless of which theory they are brought under. See, e.g., Mahoney v. United States, 339 F.2d 605 (6th Cir. 1963); Parker v. Employers Mut. Liab. Ins. Co., 440 S.W.2d 43 (Tex. 1969). The claims experience under the Price-Anderson Act is limited to 27 “incidents,” of which 7 did not result in claims being made and the others were settled out of court for a total amount of $580,000 ($400,000 of which was for two claims). See information supplied by Energy Research and Development Administration and Nuclear Liability Insurance Pools in To Amend and Extend the Price-Anderson Act: Hearings on H.R. 8631 Before the Joint Committee on Atomic Energy, 94th Cong., 1st Sess. 75–76, 82–84 (Sept. 23 & 24, 1975). The widely publicized case Silkwood v. Kerr-McGee Corp. (discussed in Chicago Tribune, May 27, 1979, § 2, at 1), in which a jury in Oklahoma City awarded damages of $10.5 million for alleged plutonium contamination, has been hailed as a step toward strict liability, but the factual situation submitted to the jury (including many hints of foul play) is unique and may limit the value of the decision as a precedent—if it is affirmed on appeal, which is not at all certain.Google Scholar

238 International Convention on Civil Liability for Oil Pollution Damage, adopted at Brussels Nov. 1969, reprinted in 64 Am. J. Int'l L. 481 (1970), entered into force (though not for the United States) June 19, 1975 (72 Dep't of State Bull. 623 (1975)). The convention is part of a series of conventions aimed at establishing an international framework for the control of oil pollution. For general surveys, see Senate Comm. on Commerce, 94th Cong., 1st Sess., Effects of Man's Activities on the Marine Environment (prepared by the Congressional Research Service of the Library of Congress at the request of Senators Magnuson and Hollings for the use of the Comm. on Commerce and the National Ocean Policy Study of the U.S. Senate) (Comm. Print, 1975); Lawrence Juda, IMCO and the Regulation of Ocean Pollution from Ships, 26 Int'l & Comp. L.Q. 558 (1977); Mensah, supra note 9. International aspects will be discussed more fully in the second part of this study.Google Scholar

239 See, e.g., statement of Rep. Biaggi, N.Y., chairman of Coast Guard Subcommittee, in the House of Representatives during the discussion of H.R. 6803 on Sept. 12, 1977, in 123 Cong. Rec. H9238 col. 2 (daily ed. Sept. 12, 1977).Google Scholar

240 Water and Environmental Quality Improvement Act of 1970, Pub. L. No. 91–224, 84 Stat. 91, § 102, creating new § 11(f) of the Federal Water Pollution Control Act. In less clear terms, a duty to reimburse the government for cleanup costs had been created by the Clean Water Restoration Act of 1966, Pub. L. No. 89–753, 80 Stat. 1252–1254, § 211(a), 33 U.S.C.A. 432 (1970) (repealed Apr. 3, 1970, Pub. L. No. 91–224, § 108, 84 Stat. 113), which amended the Oil Pollution Act of 1924, specifically by creating a new § 3(b). See note 243 infra for later amendments.Google Scholar

241 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted at Brussels in 1971, reprinted in Int'l Legal Mat. 284 (1972), entered into force (though not for the United States) Oct. 16, 1978 (78 Dep't of State Bull. 59). For details, see the references in note 238 supra.Google Scholar

242 The Deepwater Port Act of 1974, Pub. L. No. 93–627, 88 Stat. 2126, 33 U.S.C.A. 1517 (1978), in § 18(n) directed the Attorney General to conduct a study, in cooperation with several other agencies, of appropriate methods and procedures. In 1975 the Attorney General submitted the report: Senate Comm. on Commerce, 94th Cong., 1st Sess., Methods and Procedures for Implementing a Uniform Law Providing Liability for Cleanup Costs and Damages Caused by Oil Spills from Ocean Related Sources: A Study by the Department of Justice (prepared by the Attorney General, U.S. Dep't of Justice, at the request of Senators Magnuson and Hollings for the use of the Comm. on Commerce and the National Ocean Policy Study of the U.S. Senate, pursuant to S. Res. 222) (Comm. Print, 1975).Google Scholar

243 Federal Water Pollution Control Act, 33 U.S.C.A. § 1321 (1978), as amended by Clean Water Act of 1977, Pub. L. No. 95–217, § 57–58(m), 91 Stat. 1593–96. The 1977 changes in the law are explained in Senate Comm. on Environment & Pub. Works, S. Rep. No. 370, 95th Cong., 1st Sess. July 28, 1977 [to accompany S. 1952], at 64–65, reprinted in [1977] U.S. Code Cong. & Ad. News 4326, 4389–90, and House Conference Rep. No. 830, 95th Cong., 1st Sess. Dec. 6, 1977 [to accompany H.R. 3199], at 94–95, reprinted in 1977 U.S. Code Cong. & Ad. News 4424, 4466–67. The system of compensation under the old version has been described extensively elsewhere; see especially: Bergman, supra note 163; Comment, Liability for Maritime Oil Pollution: A Comparison of the Maine Coastal Conveyance Act with Federal Liability Provisions, 29 Me. L. Rev. 47 (1977).Google Scholar

244 Bills proposing a comprehensive oil spill liability and compensation system have been introduced in every Congress since 1975 but so far have failed for a variety of reasons—first because they were tied in with the ratification and implementation of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (supra note 241), which was rejected as premature, and then because of disagreements over the inclusion of other hazardous substances and the extent of preemption of state laws. In the 96th Congress, eight bills have been introduced as of July 1979. Three of them (S. 1341, H.R. 4566, and H.R. 4571) were introduced at the request and with the support of the administration; they propose a system covering oil and all hazardous substances identified by the EPA. The other bills (S. 684, S. 953, H.R. 29, H.R. 85, and H.R. 3441) are limited to oil.Google Scholar

245 In defining the contiguous zone, 33 U.S.C.A. 1321(a)(9) (1978) refers to the Convention on the Territorial Sea and the Contiguous Zone (adopted by the United Nations Conference on the Law of the Sea, Geneva, 1958 and entered into force Sept. 10, 1964), 15 U.S.T. 1606, 1612, TIAS 5639, which provides in art. 24: I. In a zone of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to: (a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b) Punish infringement of the above regulations committed within its territory or territorial sea. 2. The contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured. There is no federal statute expressly establishing a contiguous zone under the convention. The territorial sea is not defined by statute, either, but has been defined by custom as extending three miles outward from the coastline (it also includes all inland waters and the area between the high water and low water lines). Civil Aeronautics Board v. Island Airlines, Inc., 235 F. Supp. 990 (D. Hawaii 1964).Google Scholar

246 See the Fishing Conservation and Management Act of 1976, Pub. L. No. 94–265, § 101, 90 Stat. 336, 16 U.S.C.A. § 1811 (Cum. Supp. 1979). The liability applies to discharges that “may affect natural resources” (that is, marine life) within the 200-mile zone. 33 U.S.C.A. § 1321(b)(3) (Cum. Supp. 1979).Google Scholar

247 33 U.S.C.A. § 1321(b)(3) (Cum. Supp. 1979). A potential conflict between the expanded liability under the Water Pollution Control Act and the liability and liability limits established by the Deepwater Port Act itself in 33 U.S.C.A. § 1517 (1978) is avoided by 33 U.S.C.A. § 1321(r) (1978), which specifies that the amendments shall not have the effect of limiting liability under the Deep-water Port Act or the Outer Continental Shelf Lands Act.Google Scholar

248 33 U.S.C.A. § 1321(f)(1)-(3) (1978).CrossRefGoogle Scholar

249 33 U.S.C.A. § 1321(f)(4)-(5) (1978).Google Scholar

250 33 U.S.C.A. § 1321(f)(1)-(3) (1978).CrossRefGoogle Scholar

251 33 U.S.C.A. § 1321(g) (1978).Google Scholar

252 Id.; see also S. Rep. No. 370, supra note 243.Google Scholar

253 33 U.S.C.A. § 1321(i) (1978).Google Scholar

254 33 U.S.C.A. § 1321(f)(1)-(3) (1978).CrossRefGoogle Scholar

255 33 U.S.C.A. § 1321(f)(1) (1978); see also House Conference Rep. No. 830, supra note 243, at 91.Google Scholar

256 33 U.S.C.A. § 1321(f)(2) (1978).Google Scholar

257 33 U.S.C.A. § 1321(q) (1978); see also House Conference Rep. No. 830, supra note 243, at 91.Google Scholar

258 33 U.S.C.A. § 1321(p)(1978).Google Scholar

259 Id. The Federal Maritime Commission has set forth regulations specifying details of coverage to be provided and forms to be used: 46 C.F.R. § 542, revised 1978 in response to the 1977 amendments.Google Scholar

260 See especially Mendelsohn, supra note 163.Google Scholar

261 Section 305(d) of the Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95–372, 92 Stat. 677, 43 U.S.C.A. § 1815(d) (Cum. Supp. 1979), provides: The President shall conduct a study to determine— (1) whether adequate private oil pollution insurance protection is available on reasonable terms and conditions to the owners and operators of vessels, onshore facilities, and offshore facilities; and (2) whether the market for such insurance is sufficiently competitive to assure purchasers of features such as a reasonable range of deductibles, coinsurance provisions, and exclusions. A similar provision was contained in the comprehensive oil pollution liability and compensation bills that fell just short of being enacted in the 95th Congress. It is worth noting that the scope of the study is defined in broader terms than would be necessary if it were to be limited to the insurance coverage required by the Outer Continental Shelf Lands Act, as amended. The legislative history shows that the study is indeed intended to explore the capacity of the private insurance market for oil pollution liability insurance generally, including the coverages that will be required under the proposed comprehensive oil pollution law. See House Conference Rep. No. 1474, 95th Cong., 2d Sess. Aug. 10, 1978 [Conference Rep. on S. 9, Outer Continental Shelf Lands Act Amendments of 1978], at 136, reprinted in 124 Cong. Rec. H8367, 8382 col. 3 (daily ed. Aug. 10, 1978); (discussed by House in id. at H8873 (daily ed. Aug. 17, 1978)).Google Scholar

262 43 U.S.C.A. § 1811–1824 (Cum. Supp. 1979).Google Scholar

263 43 U.S.C.A. § 1813–1814 (Cum. Supp. 1979).Google Scholar

264 43 U.S.C.A. § 1814(b)-(d) (Cum. Supp. 1979).Google Scholar

265 43 U.S.C.A. § 1815 (Cum. Supp. 1979).Google Scholar

266 43 U.S.C.A. § 1812, 1817 (Cum. Supp. 1979). The law also establishes a Fishermen's Contingency Fund (43 U.S.C.A. § 1841–1846) for mechanical damage to commercial fishing vessels and gear caused by offshore installations and activities.Google Scholar

267 33 U.S.C.A. § 1517 (1978).Google Scholar

268 The structure and operation of the fund will be discussed in greater detail in the second part of this study.Google Scholar

269 Trans-Alaska Pipeline Authorization Act, Pub. L. No. 93–153 of Nov. 16, 1973, 87 Stat. 584, 588, 43 U.S.C.A. § 1651–1655 (Cum. Supp. 1979).Google Scholar

270 43 U.S.C.A. § 1653(a) (Cum. Supp. 1979).Google Scholar

271 43 U.S.C.A. § 1653(b) (Cum. Supp. 1979).Google Scholar

272 43 U.S.C.A. § 1653(c) (Cum. Supp. 1979).Google Scholar

273 43 U.S.C.A. § 1653(a) (Cum. Supp. 1979).Google Scholar

274 43 U.S.C.A. § 1653(b) (Cum. Supp. 1979).Google Scholar

275 43 U.S.C.A. § 1653(c) (Cum. Supp. 1979). The fund will be discussed specifically in the second part of this study.Google Scholar

276 See, e.g., H.R., 85 96th Cong., 1st Sess., § 103 and 104 (1979). S. 684, 96th Cong., 1st Sess. (1979), however, is limited to pollution from vessels only. See also note 244 supra.Google Scholar

277 See note 261 supra.Google Scholar

278 H.R. 6803, 95th Cong., 1st Sess., § 110(a)(1) (1977).Google Scholar

279 See, e.g., 43 U.S.C.A. § 1820 (Cum. Supp. 1979); H.R. 85, 96th Cong., 1st Sess., § 110 (1979); S. 684, 96th Cong., 1st Sess., § 15.Google Scholar

280 A list and discussion of these statutes is included in the Attorney General study, supra note 242, especially Appendix B. Of course, water pollution legislation is not limited to coastal states.Google Scholar

281 Such funds have been established in Florida, Maine, and New Jersey: Fla. Stat. Ann. § 376.11 (West Cum. Supp. 1978); Me. Rev. Stat. Ann. tit. 38, § 551 (1978); N.J. Stat. Ann. § 58:10–23.11. These funds will be rendered obsolete by the proposed federal oil spill compensation act, see pp. 409–15 supra. Pending the enactment of comprehensive federal legislation, however, these funds have been recognized as valid and not preempted. Askew v. American Waterways Operators, 411 U.S. 325 (1973); Portland Pipe Line Corp. v. Environmental Improvement Comm'n, 307 A.2d 1 (Me.), appeal dismissed, 414 U.S. 1035 (1973).Google Scholar

282 Pollution Control Act of South Carolina, S.C. Code § 48–1–10(20) (1976). Similar broad laws exist in Alaska, Alaska Stat. § 46.03.710 (1978); Delaware, Del. Code Ann. tit. 7, § 6001 (1977); Florida, Fla. Stat. Ann. § 403.161 (West Cum. Supp. 1978); Idaho, Idaho Code § 39–101 (1977); Kentucky, Ky. Rev. Stat. § 224.110 (1977); Nebraska, Neb. Rev. Stat. § 81–1506 (Cum. Supp. 1978); North Dakota, N.D. Cent. Code § 32–40–06 (1976); Oklahoma, Okla. Stat. Ann. tit. 82, § 937 (1977); Wyoming, Wyo. Stat. Ann. § 35–11–102 (1977).Google Scholar

283 See, e.g., Oregon, Or. Rev. Stat. § 517.750 to .900 (1977–78).Google Scholar

284 See, e.g., N.C. Gen. Stat. § 113A–66 (1978); S.C. Code § 48–13–10 to 48–13–60 (1976).Google Scholar

285 See, e.g., N.Y. Envir. Conserv. Law § 23–0305(8) (McKinney Cum. Supp. 1978).Google Scholar

286 See, e.g., Oklahoma, Okla. Stat. Ann. tit. 11, § 22–111 (1978).Google Scholar

287 See, e.g., Minn. Stat. Ann. § 115.071 subd. 3 (West 1977). Some statutes achieve the same result indirectly by imposing liability on persons causing a pollution, generally defined, and then excluding liability in the event the defendant was in compliance with statutory standards or a permit; see, e.g., Mass. Ann. Laws ch. 130, § 24 (Michie/Law. Co-op Cum. Supp. 1978).Google Scholar

288 The Florida definition includes most of the elements currently used by state laws: the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of air or water in quantities or at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property, or unreasonably interfere with the enjoyment of life or property, including outdoor recreation. Fla. Stat. Ann. § 403.031(2) (West Cum. Supp. 1978).Google Scholar

289 See, e.g., Ark. Stat. Ann. § 82–1909(c) (1976).CrossRefGoogle Scholar

290 See, e.g., Alaska Stat. § 46.03.822 (1978); Cal. Harb. & Nav. Code § 293 (West 1978); Fla. Stat. Ann. § 376.205 (West Cum. Supp. 1978); Md. Nat. Res. Code Ann. § 8–1409 (1974); Mass. Ann. Laws ch. 130, § 27 (Michie/Law. Co-op Cum. Supp. 1978); N.H. Rev. Stat. Ann. 146-A:10 (1977); N.C. Gen. Stat. § 143–215.93 (1978); Or. Rev. Stat. § 468.790 (1977–78) (oil), 459.685 (1978) (hazardous waste); S.C. Code § 48–1–250 (1976); Va. Code § 62.1–44.34:2 (Cum. Supp. 1978); Wash. Rev. Code Ann. § 90.48.336 (Supp. 1978).Google Scholar

291 Alaska Stat. § 46.03.822 (1978); Ark. Stat. Ann. § 82–1909 (1976); Cal. Harb. & Nav. Code § 293 (West 1978); Fla. Stat. Ann. § 376.12(4) (West Cum. Supp. 1978) (indirect liability to compensation fund); Ga. Code Ann. § 17–521.1(2) (1971); Ind. Code Ann. § 14–2–6–7 (Burns 1973); Me. Rev. Stat. Ann. tit. 38, § 552 (1978); Mass. Ann. Laws. ch. 130, §§ 24, 27 (Michie/Law. Co-op Cum. Supp. 1978); Minn. Stat. Ann. § 115.071 subd. 3 (West 1977); Mo. Ann. Stat. §§ 204.076(4), .096 (Vernon Cum. Supp. 1978); N.J. Stat. Ann. § 58:10–23.11g(c) (West Supp. 1979–80); N.Y. Envir. Conserv. L. § 71–1941 (McKinney 1978); N.C. Gen. Stat. § 143–215.83 (1978); Or. Rev. Stat. § 468.785 (1977–78); Tenn. Code Ann. § 70–338 (1977 Supp.); Va. Code § 62.1–44.34:2 (Cum. Supp. 1978); Wash. Rev. Code Ann. § 90.48.335 (Supp. 1978).Google Scholar

292 Alaska, California, Florida, Maine, Massachusetts, North Carolina, Oregon, Virginia, Washington (all as cited in note 291 supra).Google Scholar

293 Cal. Harb. & Nav. Code § 293 (West 1978).Google Scholar

294 Mass. Ann. Laws ch. 130. § 23 (Michie/Law. Co-op Cum. Supp. 1978).Google Scholar

295 Ala. Code § 22–22–9(q) (1975): If the pollution has caused damage to fish and/or other wildlife in excess of $5,000.00, … the damage shall be presumed to have been the' direct and proximate result of negligence of the person shown to be responsible for such pollution, and the burden shall then be upon such person to prove freedom of negligence in causing the pollution in such cases.Google Scholar

296 Alaska Stat. § 46.03.760(a) (1978).CrossRefGoogle Scholar

297 Alaska Stat. § 46.03.760(b) (1978).CrossRefGoogle Scholar

298 Conn. Gen. Stat. § 25–54ee (West Supp. 1978).CrossRefGoogle Scholar

299 Mass. Ann. Laws ch. 130, §§ 24, 27 (Michie/Law. Co-op Cum. Supp. 1978).Google Scholar

300 See p. 411 supra.Google Scholar

301 See, e.g., Fla. Stat. Ann. § 376.12(1) (West Cum. Supp. 1978); N.J. Stat. Ann. § 58:10–23.11 (West Cum. Supp. 1979).Google Scholar

302 See, e.g., Alaska Stat. Ann. § 46.03.828 (1978).Google Scholar

303 Me. Rev. Stat. Ann. tit. 38, § 551(2)(D) (1978): “Damage claims arising under this sub-chapter shall be recoverable only in the manner provided under this subchapter, it being the intent of the Legislature that the remedies provided in this subchapter are exclusive.”Google Scholar

304 For details, see William T. Birmingham & Jon L. Kyl, Legal and Practical Aspects of Pesticide Spraying Cases, 37 Ins. Counsel J. 585 (1970); William E. Reukauf, Regulation of Agricultural Pesticides, 62 Iowa L. Rev. 909 (1977).Google Scholar

305 The rules respecting sovereign immunity are a case in point. See, e.g., National Association of Attorneys General, Committee on the Office of Attorney General, Sovereign Immunity: The Liability of Government and Its Officials (rev. ed. Nov. 1976).Google Scholar

306 See pp. 365–66 supra.Google Scholar

307 See, e.g., Spencer L. Kimball & Don A. Davis, The Extension of Insurance Subrogation, 60 Mich. L. Rev. 841 (1962); Uriel Procaccia, Denying Subrogation in Personal Injury Claims: A Needed Change of Direction, 15 Wm. & Mary L. Rev. 93 (1973).Google Scholar

308 According to the latest available industry statistics, about 164 million persons under age 65 were covered by hospital expense insurance in 1976 but only about 61 million were protected under short-term disability income plans, and about 18 million under long-term disability income plans. Health Insurance Institute, Source Book of Health Insurance Data 1977–1978, at 21 (Washington, D.C.: Health Insurance Institute, n.d.). Total benefits paid by insurance companies (other than Blue Cross and Blue Shield Plans) in 1976 amounted to about $14.5 billion for medical expenses and to about $2.8 billion for loss of income benefits. Id. at 41.Google Scholar

309 See, e.g., Marcus Rosenblum, ed., Compendium on Workmen's Compensation 9–26 (Washington, D.C.: National Commission on State Workmen's Compensation Laws, 1973).Google Scholar

310 The program was established by the Federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91–173, 83 Stat. 742, 30 U.S.C.A. §§ 801–936 (1971), as amended by Black Lung Benefits Reform Act of 1977, Pub. L. No. 95–164, 91 Stat. 1290, 30 U.S.C.A. §§ 801–945 (1971 & Cum. Supp. 1979). For details, see Donald T. DeCarlo & William F. Vieweg, Federal Black Lung Law and Insurance in a Nutshell, 11 Forum 661 (1976).Google Scholar

311 The “unavoidable causes” against which the Federal Crop Insurance Corporation may provide coverage include drought, flood, hail, wind, frost, winterkill, lightning, fire, excessive rain, snow, wildlife, hurricane, tornado, insect infestation, and plant disease; the Board of Directors of the corporation is authorized to add other unavoidable causes. 7 U.S.C.A. § 1508(a) (1973 & Cum. Supp. 1979). The policy presently used by the corporation lists two additional perils: earthquake and poleburn. 7 C.F.R. § 401.111, no. 1(a) (1978).Google Scholar

312 See, e.g., Dwelling Building(s) and Contents Basic Form (DF-1), (Ed. 9–74), General Exclusions, item 3 (prepared by Insurance Services Office). Another clause, referred to as “nuclear exclusion,” excludes from the coverage any loss or damage caused directly by nuclear reaction or radiation (unrelated to any fire). Id., item 4. The nuclear peril, and other excluded perils, can be insured separately, however; see infra.Google Scholar

313 Id., Perils Insured Against, item 8; David v. Nat'l Union Fire Ins. Co., 206 Pa. Super. Ct. 78, 211 A.2d 66 (1965) (smoke from incinerator not covered).Google Scholar

314 Homeowners Policy—Broad Form (HO-2), (Ed. 9–71), Perils Insured Against, item 8 (prepared by Insurance Services Office).Google Scholar

315 General Property Form (CF 00 11), (Ed. 05–77). Section VI—Perils Insured Against, item 5(B)(1) (prepared by Insurance Services Office).Google Scholar

316 This is stated expressly for fires caused by nuclear reaction, etc., in the nuclear clause cited note 312 supra.Google Scholar

317 For instance, the increasing use of polyvinylchloride (PVC) as an insulating material for electric wires has resulted in claims where a small fire in the electric system produced negligible direct fire damage but huge losses to machines and other metal objects from corrosion due to the hydrochloric acid formed by the burning PVC.Google Scholar

318 See the smoke clauses cited in notes 313 and 314 supra. Not all smoke is covered, though.Google Scholar

319 See, e.g., Larson v. Fireman's Fund Ins. Co., 258 Iowa 348, 139 N.W.2d 174 (1965) (turkeys suffocated as result of being frightened by low flying aircraft; insurance claim denied for lack of proof of mischievous intent).Google Scholar

320 Boiler and Machinery Policy (BM)—Definitions and Special Provisions Endorsement (No. DSl) Section D-Refrigerating and Air Conditioning Vessels and Piping (as reproduced in Sample Insurance Policies, Property Liability Coverages plus Selected Life and Accident/Health Policies, Advanced Book, at 105 (New York: Insurance Information Institute, 1978)).Google Scholar

321 See, e.g., Personal Auto Policy (Ed. 1–77), Part D, Exclusions (prepared by Insurance Services Office).Google Scholar

322 Comprehensive Glass Policy (No. PG), Insuring Agreement (in Sample Insurance Policies, supra note 320, at 103, 104).Google Scholar

323 See, e.g., George F. Rutledge, Farm and Crop Insurance, in John D. Long & Davis W. Gregg, eds., Property and Liability Insurance Handbook 144, 153–54 (Homewood, Ill.: Richard D. Irwin, 1965).Google Scholar

324 See, e.g., Homeowners Policy—Special Form (HO-3), (Ed. 9–17), Perils Insured Against 203 (prepared by Insurance Services Office). Separate all-risks coverage for personal property is available, however, in the form of a personal property floater.Google Scholar

325 See, e.g., Special Multi-Peril Policy—Special Personal Property Form (MP-IOTA), (Ed. 7–77), Section I (prepared by Insurance Services Office).Google Scholar

326 Homeowners Policy—Special Form, supra note 324. Additional Exclusions, Under Coverages A and B, item 1.Google Scholar

327 Special Multi-Peril Policy—Special Building Form (Form MP-101), (Ed. 7–77), Section 1, VI: Exclusions, item E, no. 1 (prepared by Insurance Services Office). The exclusions for the Special Personal Property Form (MP-101A), supra note 325, employ the same language as the Homeowners Policy, however.Google Scholar

328 Lexington Ins. Co. v. Ryder Sys., Inc., 142 Ga. App. 36, 234 S.E.2d 839 (1977).Google Scholar

329 See, e.g., Mark R. Greene, Allied Lines Insurance, in Long & Gregg, supra note 323, at 100, 107–8.Google Scholar

330 See notes 233–37 supra and text at same.Google Scholar

331 See pp. 391–98 supra.Google Scholar

332 For a recent summary, see Walter Kiechel III, “The Admirality Case of the Century,” Fortune, Apr. 23, 1979, at 78.Google Scholar

333 See note 89 supra.Google Scholar

334 See, e.g., Ellis Simon, Everyone Denies Liability in N.Y. Chemical Disaster, Bus. Ins., Dec. 25, 1978, at 1; Patricia O'Brien, Chemical Disaster Creates Ghost-town Neighborhood, Chicago Tribune, Nov. 19, 1978, § I at 18.Google Scholar

335 See supra notes 92–94 and text at same.Google Scholar

336 For details, see John D. Phelan, Business Interruption Insurance, in Long & Gregg, supra note 323, at 119–29.Google Scholar

337 See W. B. Honour & G. J. R. Hickmott, Principles and Practice of Profits Insurance, 3d ed., at 106, 544 (London: Butterworth, 1966).Google Scholar

338 See, e.g., Alfred I. Jaffe, Affects [sic) of Three Mile Island Crisis, Nat'l Underwriter, Property/Cas. Ins. Ed., Apr. 27, 1979, at 35, 37. My inquiries among knowledgeable persons in the insurance industry have failed to produce any indication that a policy of this kind has actually been issued.Google Scholar

339 The coverage has been offered under the name Tax Interruption Protection Plan by a large national brokerage house; see the advertisement in Nat'l Underwriter, Property/Cas. Ins. Ed., Feb. 16, 1979, at 21.Google Scholar

340 There is what looks like an exception to this rule in personal property forms covering objects (especially objects of art) that form a pair or set and providing for the loss resulting from the fact that if one of the parts of the set is lost or damaged, the remaining parts even though undamaged are worth much less separately than they were before. The exception is apparent rather than real, however, if one considers that the insurance covers the set rather than the individual parts so that, if one of the parts is lost, the set as such is destroyed, and the remaining undamaged parts can be regarded only as salvage.Google Scholar

341 See generally Mary Coate McNeely, Illegality as a Factor in Liability Insurance, 41 Colum. L. Rev. 26 (1941). Specifically for the public policy argument in general liability insurance, see Gordon H. Snow, Occurrence vs. Accident—Just What Is Covered? 21 Ins. Counsel J. 30 (1954), at 38–40.Google Scholar

342 This rule has often been cited with approval, but it has rarely if ever been actually applied with the result of exonerating the insurer. In Rothman v. Metropolitan Cas. Ins. Co., 134 Ohio St. 241, 16 N.E.2d 417 (1938), the court states that an automobile liability insurance policy could never cover injuries inflicted intentionally by the insured but then goes on to hold that “wanton misconduct” does not amount to intent with respect to resulting injuries but rather is included in the broad meaning of “accident.” See also Clemmer v. Hartford Ins. Co., 22 Cal. 3d 865, 587 P.2d 1098 (1978), modified on denial of rehearing, 151 Cal. Rptr. 285 (1979).Google Scholar

343 The standard family automobile policy used by subscribers of the Insurance Services Office does exclude “bodily injury or property damage caused intentionally by or at the direction of the insured” the policy in the Rothman case, supra note 342, did not. In the currently used general liability policy, the exclusion is implicit in the definition of the term “occurrence” see pp. 438–39 infra.Google Scholar

344 See McNeely, supra note 341.Google Scholar

345 See, e.g., Jack O. Brittain & James F. Pennington, When Is an Intentional Tort an Intentional Tort? 26 Fed. Ins. Counsel Q. 315 (1976); William P. Casey, Fight, Riot, Brawl, Maul—and Then Some Insurance, 1976 Ins. L.J. 711.Google Scholar

346 See Rothman v. Metropolitan Cas. Ins. Co., 134 Ohio St. 241, 16 N.E. 2d 217 (1938). In Moffat v. Metropolitan Cas. Ins. Co., 238 F. Supp. 165 (M.D. Pa. 1964), the court noted that the general liability policy did not expressly exclude intentional acts of the insured and then pointed out that the insured's acts (piling up coal-mining waste materials emitting sulfurous fumes) were not done for the purpose of invading other persons' property or causing damage. The decision was against the insurer, although the insured had been found responsible for intentionally and unreasonably creating a nuisance.Google Scholar

347 Snow, supra note 341, at 31.Google Scholar

348 For general discussions of the case law concerning coverage of environmental damages under the general liability policy, see Eric M. Holmes, Applicability of Liability Insurance Coverage to Private Pollution Suits: Do We Insure Pollution? 40 Tenn. L. Rev. 377 (1973); Snow, supra note 341; Warren G. Brockmeier, Pollution—the Risk and Insurance Problem, 12 For the Defense No. 7,. Sept. 1971, reprinted in Fred L. Bardenwerper & Donald J. Hirsch, eds., Environmental Law—Defense and Insurance Problems 46 (Milwaukee: Defense Research Institute, 1977); Robert S. Soderstrom, The Role of Insurance in Environmental Litigation, 11 Forum 762 (1976); Thomas J. McGeough, The Applicabiity of Liability Insurance Coverage to Actions Involving Environmental Damage, ABA Sec. of Ins. Neg. & Compensation L. Proceedings 1970–1971 at 312 (Chicago: American Bar Center, 1971).Google Scholar

349 See especially Moffat v. Metropolitan Cas. Ins. Co., 238 F. Supp. 165 (M.D. Pa. 1964); Moore v. Fidelity & Cas. Co., 140 Cal. App. 2d Supp. 967, 295 P.2d 154 (1956).Google Scholar

350 If this view were correct, the insured would be covered even for damages inflicted by him intentionally on a third person in instances where he acted for the purpose of injuring the third person—a result that would be contrary to public policy. See notes 341–45 supra.Google Scholar

351 The contra proferentem rule, cited, for instance, in Travelers v. Humming Bird Coal Co., 371 S.W.2d 35 (Ky. 1963); White v. Smith, 4.40 S.W.2d 497 (Mo. Ct. App. 1969).Google Scholar

352 The following cases appear to be in this category, i.e., doubtful factual situations in which a decision had to be made one way or the other without materially affecting the basis of the coverage. For the insured: City of Kimball v. St. Paul Fire & Marine Ins. Co., 190 Neb. 152, 206 N.W.2d 632 (1973); City of Myrtle Point v. Pacific Indem. Co., 233 F. Supp. 193 (D. Or. 1963); Lancaster Area Refuse Auth. v. Transamerica Ins. Co., 437 Pa. 493, 263 A.2d 368 (1970); Massachusetts Bonding & Ins. Co. v. Orkin Exterminating Co., 416 S.W.2d 396 (Tex. 1967); Taylor v. Imperial Cas. & Indem. Co., 82 S.D. 298, 144 N.W.2d 856 (1966); Travelers v. Humming Bird Coal Co., 371 S.W.2d 35 (Ky. 1963); White v. Smith, 440 S.W.2d 497 (Mo. Ct. App. 1969). For the insurer: Harleysville Mut. Cas. Co. v. Harris & Brooks, Inc., 248 Md. 148, 235 A.2d 556 (1967); Leggett v. Home Indem. Co., 461 F.2d 257 (10th Cir. 1972); Town of Tieton v. General Ins. Co. of America, 61 Wash. 2d 716, 380 P.2d 127 (1963).Google Scholar

353 See especially Hutchinson Water Co. v. United States Fidelity & Guar. Co., 250 F.2d 892, 894 (10th Cir. 1957), citing the maxim that “everyone is constructively held to intend the natural and probable consequences of his acts; and, that which is intended or anticipated cannot be accidental.” See also American Cas. Co., v. Minnesota Farm Bureau Serv. Co., 270 F.2d 686 (8th Cir. 1959).Google Scholar

354 Hutchinson Water Co. v. United States Fidelity & Guar. Co., note 353 supra.Google Scholar

355 That extreme position was taken by White v. Smith, 440 S.W.2d 497 (Mo. Ct. App. 1969).Google Scholar

356 The distinction is further explained by Prosser, supra note 48, at 31–34.Google Scholar

357 For details of the history of this change, see the references in note 348 supra.Google Scholar

358 See especially Snow, supra note 341, at 36–38.Google Scholar

359 See Brockmeier, supra note 348, at 46. Taylor v. Imperial Cas. & Indem. Co., 82 S.D. 298, 144 N.W.2d 856 (1966), and Employers Ins. Co. v. Rives, 264 Ala. 310, 87 So. 2d 653, cert. denied, 264 Ala. 696, 87 So. 2d 658 (1955), would presumably be such cases.Google Scholar

360 Aetna Cas. & Sur. Co. v. Martin Bros. Container & Timber Prods. Corp., 256 F. Supp. 145 (D. Or. 1966); Grand River Lime Co. v. Ohio Cas. Ins. Co., 32 Ohio App. 2d 178, 289 N.E.2d 360 (1972); White v. Smith, 440 S.W.2d 497 (Mo. Ct. App. 1969); Lancaster Area Refuse Auth. v. Transamerica Ins. Co., 437 Pa. 493, 263 A.2d 368 (1970).Google Scholar

361 Thomas L. Ashcraft, panel presentation on Ecology, Environment, Insurance and the Law, Fed. Ins. Counsel Q., Winter 1970–71, at 52–57.Google Scholar

362 This is the version that eventually, in 1973, was included in the standard general liability policy as Exclusion (f). Sample Insurance Policies, supra note 320, at 58. Some large insurers used forms differing in language but having substantially the same intent and effect. See, e.g., Ashcraft, supra note 361; Harry E. Wilmarth, Pollution Liability—What Are the Insurance Companies Doing in This Area? Fed. Ins. Counsel Q., Summer 1971, at 18–27.Google Scholar

363 Charles K. Cox, president of Insurance Company of North America, in an address given in April 1970, quoted by Soderstrom, supra note 348, at 767.Google Scholar

364 J. C. Stamos, Pollution and Its Insurance Implications, Aetna-izer, LII, No. 4 (July-Aug. 1971) 6, quoted by Numan Arthur Williams, An Analysis of Insurance Solutions to the Wisconsin Surface Water Pollution Risk 146–47 (Ph.D. diss., University of Wisconsin, 1973).Google Scholar

365 N.Y. Ins. Law § 46(14) (McKinney Cum. Supp. 1978).Google Scholar

366 See Brockmeier, supra note 348, at 47; Ashcraft, supra note 361, at 54, Defense Research Institute, Inc., Pollution Coverage Exclusions, 11 For the Defense 75 (1970).Google Scholar

367 Brockmeier, supra note 348, at 48.Google Scholar

368 One insurance company (The Travelers Indemnity Company) uses a different clause that avoids the terms “sudden and accidental” and is intended to cover continuing and repeated discharges in the same way the occurrence clause does. See Wilmarth, supra note 362, at 26; Williams, supra note 364, at 169–70.Google Scholar

369 Williams, supra note 364, especially at 119–62.Google Scholar

370 Id. at 150–51.Google Scholar

371 See, e.g., John Bainbridge, Biography of an Idea: The Story of Mutual Fire and Casualty Insurance (Garden City, N.Y.: Doubleday & Co., 1952).Google Scholar

372 See especially Charles C. Humpstone, Pollution Insurance Comes of Age, Risk Management, Aug. 1977, at 18; Bernard J. Daenzer, How to Fill the Gap in Your CGL for Pollution Liability and Clean Up, Weekly Underwriter, Feb. 12, 1977 (Part II), at 10.Google Scholar

373 Environmental Impairment Liability Insurance, Form EIL (USA) 1276, made available by Howden Agencies, Ltd., Cranford, N.J., in Dec. 1977, at 7, 4.Google Scholar

374 See Brockmeier, supra note 348, at 47.Google Scholar

375 See pp. 409–15 supra.Google Scholar

376 See 46 C.F.R. § 542, 543 (1978). A new Part 544 was promulgated in March 1979 for vessels carrying oil from outer continental shelf facilities: 44 Fed. Reg. 16,918 (1979) (to be codified in 46 C.F.R. § 544).Google Scholar

377 See generally Nicholas J. Healy, Water Pollution Liability from an Insurance Standpoint, 9 Houston L. Rev. 662 (1972); Gordon L. Becker, Vehicles for Reimbursement of Oil Pollution Damage, 9 Houston L. Rev. 669 (1972).Google Scholar

378 See notes 234–37 supra.Google Scholar

379 Holmes, supra note 348, at 397.Google Scholar

380 See, e.g., Spencer L. Kimball, Achieving Security in an Era of Discontinuity, in Kailin Tuan, ed., Modern Insurance Theory and Education, vol. 3, Entering the Era of Cooperative Insurance and the World Arena: 1970 and Beyond 34 (Orange, N.J.: Varsity Press, 1972).Google Scholar