Liability for the release of gmos into the environment: Exploring the boundaries of nuisance

Cambridge Law Journal

Volumn 62, Issue 2, 2003, Pages 371-402

  Rodgers, Christopher P ^a  

^a ABERYSTWYTH UNIVERSITY   (United Kingdom)

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EID: 85012556708     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197303006354     Document Type: Article

References (117)

1. O.J. 1990 L. 117 p. 1 and 15, 23 April 1990. The 1990 Deliberate Releases Directive has been repealed and replaced by Directive 2001/18/E.C., O.J. L. 106 17.4.2001.
2. Directive 2001/18/E.C. O.J. L. 106 17.4.2001. The Directive came into force on 17 October 2002. For an appraisal of the environmental risk assessment regime under the revised Directive see T. Sampson, “Environmental Risk Assessment of GHOs under Directive 2001/18: An Effective Safety Net or a Collective Illusion?” (2003) 25(2) E.I.P.R. 79.
3. See the Seeds (National Lists of Varieties) Regulations 1982, especially reg. 11(3).
4. Although some would argue that this is not a release into the environment but a test of what such a release might lead to.
5. Environmental Protection Act 1990, ss. 108-112.
6. Chardonn L.L. was granted a part C commercial licence in 1998, under the more limited assessment procedures contained in the 1990 Deliberate Releases Directive. It is being reassessed in the Farm Scale Evaluations initiated by the government in 1999, under the terms of the agreement with the biotechnology industry underpinning the “moratorium” on GM plantings in the UK.
7. Greenpeace Press Release, 10 April 1999. The survey was conducted by MORI, an independent public polling organisation.
8. The “decontamination” of a GM farm scale trial in East Anglia by Lord Peter Melchett and 27 Greenpeace volunteers in 2000 was perhaps the most well known. The refusal of a jury at Norwich Crown Court to convict them of either theft or criminal damage, and their subsequent acquittal on all charges, underlines the unease felt by members of the public about the trial planting programme and the safety of GM technology. See Greenpeace Press Release, “Greenpeace welcomes verdict and calls on Government to end GM Farm Experiments”, 20 September 2000.
9. Agriculture and Environmental Biotechnology Commission (“AEBC”) Looking Ahead: an AEBC Horizon Scan (AEBC 2002) at para. 69ff.: English Nature Research Report No. 443 Gene-stacking in herbicide tolerant oilseed rape: lessons from the North American experience (English Nature, February 2002).
10. See generally M. Cardwell, “The Release of Genetically Modified Organisms into the Environment: Public Concerns and Regulatory Responses”, (2002) 4 Env. L. Rev. 156. For a discussion of some of the key issues surrounding the regulation of GM releases in the US see Neil D. Hamilton, “Legal Issues Shaping Society's Acceptance of Biotechnology and Genetically Modified Organisms” (2001) 6 Drake Journal of Agricultural Law 81 (although, as Cardwell points out, any comparisons with the US position must take into account the fact that concerns about the environmental implications of GMO releases developed much later in the US and have been more muted: (2002) 4 Env. L. Rev. 156 at 166).
11. See generally G. Little, “BSE and the Regulation of Risk” (2001) 64 M.L.R. 730; also the findings of the Phillips Report on the BSE crisis: Vol. 1 Findings and Conclusions: Executive Summary of the Report of the Enquiry, 1 Key Conclusions (available at http://www.bseinquiry.gov.uk.html).
12. The Agriculture and Environment Biotechnology Commission was established in 2000 to promote public debate on the issues surrounding GM crops and to advise the government on a wide range of issues concerning GMOs and the environment, including revisions to the regulatory framework for GMO authorisations and liability for damage arising from the introduction of GM crops.
13. Crops on Trial (AEBC 2001), available at www.aebc.gov.uk
14. To this end the AEBC has established a public attitudes development group to take this forward and provide further advise on how and when a public debate about the possible commercialisation of GM crops might be initiated. See the AEBC Draft Revised Work Plan (AEBC April 2002).
15. See generally D. Campbell, “Of Coase and Corn: A (Sort of) Defence of Private Nuisance” (2000) 63 M.L.R. 197.
16. The potential liability problems arising from the introduction of different types of herbicide and insecticide resistant GM crops is the subject of the latest consultation exercise initiated by the AEBC: AEBC Consultation About GM Crops: Post-Commercialisation Scenarios
17. (September 2002). This posits nine scenarios for discussion involving potential loss flowing from the introduction of GM crops, including the “contamination” of neighbouring crops, biodiversity damage and economic damage to organic producers facing the loss of their certified organic status.
18. See Philip Jones, “Litigation in the Wind” (April 2002), available at http://www.biotech-info.net/wind.html
19. See In Re Star Link Corn Products Liability Litigation, Marvin Kramer et al. v. Aventis Crop Science USA Holding Inc. et al. (2002) 212 F.Supp.2d 828 (US District Court N.D. Illinois).
20. (2002) 212 F.Supp.2d 828, at 845ff. (Senior District Judge Moran). The litigation is complex, involving product liability claims, in addition to claims in negligence and nuisance, and the potential for the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) to exclude claims in state law based on labelling and packaging requirements. The district court held, on a preliminary motion, that the claims in nuisance and negligence were pre empted by FIFRA insofar as they sought to impose a labelling requirement on the defendants which went beyond the federal labelling requirements set out in FIFRA. The other pre-trial motions challenging the claims based in nuisance and negligence, including those alleging contamination of neighbouring crops, were dismissed.
21. I.e. rapeseed.
22. See the website of the Saskatchewan Organic Directorate for press releases and further information : http://www.saskorganic.com.
23. See for example Langan v. Valicopters Inc. (1977) 88 Mn.2d 855 (Washington State Supreme Court).
24. (2001) 12 C.P.R. (4th) 204 (F.C.T.D.). For criticism see generally Maria Lee and Robert Burrell, “Liability for the Escape of GM Seeds: Pursuing the Victim?” (2002) 65 M.L.R. 517, H. Wilkins and F. Latorre, “Biodiversity at a Crossroads” (2002) 4 Env. L. Rev. 62.
25. These are explored further below: see note 59.
26. (2002) F.C.A. 309 (reserved judgment delivered on 4 September 2002). Leave to appeal to the Supreme Court of Canada has been applied for.
27. The principal reason may be procedural. Nuisance suits fall under provincial court jurisdiction, whereas Monsanto filed their patent suit in the Canadian Federal Patent Court (which has no jurisdiction in nuisance cases).
28. [1999] Env. L. R. 310 (CA).
29. The Statement of Claim can be viewed on the Saskatchewan Organic Directorate's website: http://www.saskorganic.com.
30. (1868) L.R. 3 H.L. 330.
31. See Hunter v. Canary Wharf Ltd. [1997] A.C. 655.
32. See R. v. Secretary of State for the Environment ex parte Watson [1999] Env. L. Rev. 310.
33. See Victoria Park Racing v. Taylor (1937) 58 C.L.R. 457.
34. The traditional basis of private nuisance was re-stated in these terms by the House of Lords in Hunter v. Canary Wharf Ltd. [1997] A.C. 655. But cf. the more imaginative approach to commercial losses taken in some of the “natural nuisance” cases discussed below, for example French v. Auckland City Council [1974] 1 N.Z.L.R. 340.
35. See for example Christie v. Davey [1893] 1 Ch. 316 (injunctive relief granted to prevent interference with music lessons conducted by the claimant in a neighbouring house) and Hollywood Silver Fox Farm Ltd. v. Emmett [1936] 2 K.B. 468. Note, however, that the interference in these cases was rendered actionable by reason of its malicious nature. The farmer planting GM crops is more likely to be motivated by factors involving profitability and production costs than a malicious intent to interfere with his neighbour's crops.
36. Kennaway v. Thompson [1981] Q.B. 88.
37. See A. Grubb, The Law of Torts (2001) Butterworths, Common Law Library, at para. 22.39.
38. [1997] A.C. 667, at 688.
39. F.H. Newark, “The Boundaries of Nuisance” (1949) 65 L.Q.R. 480, 488-489.
40. See D. Campbell, “Of Coase and Corn”, above note 15, pp. 214-215 on this aspect of the problem.
41. St. Helens Smelting Co. Ltd. v. Tipping (1865) 11 H.L.C. 642.
42. See McKinnon Industries Ltd. v. Walker (1951) 3 D.L.R. 577, discussed further below.
43. As noted above, the “locality” rules are different for the different types of claim.
44. See generally C. Witting, “Physical Damage in Negligence” [2002] C.L.J. 189.
45. For example in Blue Circle Industries pic v. Ministry of Defence [1999] Ch. 289 (CA), discussed further below.
46. (1874) 9 Ch. App. 705, 709. The bias against reliance on scientific evidence was even more strongly put by Mellish L.J., who commented that “unless the damage is proved to have been sustained so that. every fairly instructed eye can really and clearly see it” it is impossible to say that substantial damage has occurred: (1874) 9 Ch. App. 705, 713.
47. Perhaps surprisingly, a number of Victorian decisions, including Salvin v. Brancepeth Coal Co. are still cited as leading authorities on proof of damage in private nuisance claims in the standard reference works e.g. Clerk and Lindsell on Torts (18th edn. 2000), at 19.09, Grubb, The Law of Tort, at 22.14.
48. SSSIs are notified by the conservation agencies under Wildlife and Countryside Act 1981, s. 28, as amended by the Countryside and Rights of Way Act 2000, Sched. 9.
49. Designated by the conservation agencies under the Conservation (Natural Habitats & C.) Regulations 1994, SI 1994/2716, reg. 10. The land-use controls imposed on the owners and occupiers of protected sites are complex, and beyond the scope of the present paper. See e.g. C.P. Rodgers “Planning and Nature Conservation: Law in the Service of Biodiversity?”, in C. Miller (ed.) Planning and Environmental Protection (Oxford 2002), chap. 5. The legislation primarily imposes obligations on the owner or occupier of land in a designated site, and not on neighbouring landowners. It therefore has limited relevance to the issue under discussion here, i.e. the liability of neighbouring landowners introducing GM crops for the damage that may ensue on land in the immediate vicinity, which may include SSSIs or Special Areas of Conservation. The primary focus of the conservation legislation is on the damage that landowners may carry out to wildlife habitats on their own land.
50. Nuclear Installations Act 1965, ss. 7, 12, impose a strict liability regime for “damage” to property arising as a consequence of the escape of radioactive particles from a controlled nuclear installation.
51. I.e. the Atomic Weapons Establishment at Aldermaston.
52. Neither Salvin v. Brancepeth Coal Co. nor any of the other of the Victorian decisions on establishing property damage in the law of nuisance are discussed in the judgments in Blue Circle Industries.
53. See [1999] Ch. 289, 300 per Aldous L.J.
54. [1990] 2 Q.B. 557. The claim was discharged on the basis that damage to property meant damage to tangible and physical property. Cf. Hunter v. Canary Wharf [1997] A.C. 655 where it was held in the Court of Appeal that the deposit of dust on carpets from shoes could amount to damage to personal property. This point was not taken in the appeal to the House of Lords.
55. Law of Property Act 1925, s. 205.
56. (2001) 12 C.P.R. (4th) 204.
57. (2001) 12 C.P.R. (4th) 204, 242. The terms of the injunction granted at first instance were upheld on appeal: (2002) F.C.A. 309 at paras. 75-78. The injunction granted to Monsanto prevented him from planting or growing seeds which he knows (or ought to know) contain the patented genes, cultivating or harvesting any plant grown from such seeds, or offering for sale, selling, marketing or distributing by any means any and all quantities of seed which includes the patented gene.
58. See H. Wilkins and F. Latorre, “Biodiversity at a Crossroads”, (2002) 4 Env. L. Rev. 62, 67ff.
59. Schmeiser v. Monsanto Canada inc. and Monsanto Company (2002) F.C.A. 309, judgment at para. 51 (Sharlow JA).
60. (1890) 24 Q.B.D. 656, (1890) 62 L.T. 933 DC.
61. The Divisional Court had here held that no action in negligence lay to force a landowner to cut thistles which were, by virtue of wind drift of their seeds, contributing to an infestation on neighbouring land, as they were a natural growth of the soil.
62. The potential for liability in nuisance was apparently raised in argument before the Divisional Court, but is only reported in the Law Times report of the decision (“By bringing [the land] into cultivation he caused the thistles to grow, thereby creating a nuisance on the land just as much as if he had intentionally grown them. The defendant by entering into occupation of the land with the nuisance on it was under a duty to use and cultivate the land so that it would not cause damage to his neighbour”, counsel for the plaintiff at (1890) 62 L.T. 933, 934.). The judgments dismissing the claim make no mention of nuisance.
63. Peter Marcic v. Thames Water Utilities [2002] EWCA 65, at [55] (Phillips L.J.).
64. “It may be that the court [in Giles v. Walker] was disinclined to regard thistledown as sufficiently noxious to be dignified as a nuisance, and in 1890 agriculture was perhaps the least regarded of British industries. We think such an action today, especially if founded on nuisance and not negligence, as was Giles v. Walker, might have been decided differently” {Davey v. Harrow Corp. [1958] 1 Q.B. 60, 72).
65. [1967] 1 A.C. 6452 All E.R. 989 {P.C.), (1963) 110 C.L.R. 40 {High Court of Australia).
66. 7” French v. Auckland City Corporation (1974) 1 N.Z.L.R. 340.
67. Davey v. Harrow Corporation {above note 14).
68. Leakey v. National Trust [1980] Q.B. 485.
69. Holbeck Hall Hotel Ltd. v. Scarborough Borough Council [2000] 2 All E.R. 705.
70. Wandsworth LBC v. Railtrack pic [2001] Env. L.R. 441 {Railtrack held liable for pigeon droppings from a bridge at Balham station, London, onto a road running underneath. Although a naturally occurring hazard, they were liable to take reasonable steps to abate the nuisance, and had failed to do so).
71. Peter Marcic v. Thames Water Utilities [2002] EWCA 65; Brybrook Barn Garden Centre Ltd. v. Kent County Council [2001] Env. L.R. 543.
72. See The Wagon Mound (No. 2) Overseas Tankship (UK) Ltd. v. Miller Steamship Co. Pty. Ltd. [1967] 1 A.C. 617, 640 per Lord Reid.
73. Lord Wilberforce indicated that the courts should recognise “a general duty on occupiers in relation to hazards occurring on their land whether natural or man made” (emphasis added) [1967] 1 A.C. 645, 661-662.
74. Although foreseeability of damage is now established as a requirement for strict liability under Rylands v. Fletcher, just as it is for nuisance: Cambridge Water Co. v. Eastern Counties Leather plc [1994] 2 A.C. 264.
75. The impact of the economic loss doctrine in cases involving contamination by GM crops was examined in the preliminary rulings in the Star Link Corn litigation in the USA: see In Re Star Link Corn Products Liability Litigation, Marvin Kramer et al. v. Aventis Crop Science USA Holding Inc. et al. (2002) 212 F.Supp.2d 828, esp. at 838-843. The court there ruled that physical injury to the claimants’ property was required to ground an action, and that they could not recover for drops in market prices. However, it also ruled that they could recover for financial losses flowing from crops that were contaminated by Star link corn on neighbouring farms, and losses occasioned by commingling of their product with Star link corn in transport or in storage prior to sale. The further question under consideration here- whether losses flowing from loss of accredited organic status can be recovered-has not been raised in the Star link litigation.
76. Victoria Park Racing v. Taylor (1937) 58 C.L.R. 457.
77. See for example Harrison v. Good (1871) L.R. 11 Eq. 338, at 351 (Bacon V.C.); Moy v. Stoop (1909) 25 T.L.R. 262, 263 (Channell J.).
78. (1865) 11 H.L.C. 642, 650.
79. See Thompson-Schwab v. Costaki [1956] 1 All E.R. 652; Laws v. Florinplace Ltd. [1981] 1 All E.R. 659. And see R. Kidner, “Nuisance and Rights of property” [1998] Conv. 267.
80. [1974] 1 N.Z.L.R. 340.
81. The court declined to follow the old English authority of Giles v. Walker (1890) 24 Q.B.D. 656, which had held that no nuisance or negligence action lay to force a neighbouring landowner to cut thistles “which are the natural growth of the soil”. The court in French allowed damages representing lost agricultural production and extra weed control costs.
82. [1999] Ch. 289 {CA), above n. 56. See also M. Cardwell, “The release of genetically modified organisms into the environment: public concerns and regulatory responses” [2001] 4 Env. L. Rev. 156, 162ff., J. Lowry and R. Edmunds, “Stigma Damages, Amenity and the Margins of Economic Loss: Quantifying Perceptions and Fears” in J. Lowry and R. Edmunds {eds.), Environmental Protection and the Common Law {Oxford 2000), 179.
83. Eastern & Southern African Telegraph Co. v. Cape Town Tramways Ltd. (1902) A.C. 381, 393, per Lord Robertson.
84. (1999) Env. L.R. 310, 323-324.
85. Notably Robinson v. Culvert (1889) 41 Ch. D. 88.
86. Consider for example Hollywood Silver Fox Farm Ltd. v. Emmett [1936] 2 K.B. 468, where the principle was not applied in circumstances where the defendant had acted maliciously. The plaintiff's silver fox vixens were agreed to be abnormally sensitive at breeding time, but the defendants were nevertheless held liable in nuisance for losses flowing from their deliberately firing guns near the pens at night to frighten them, leading some vixens to eat their cubs and others to miscarry.
87. [1902] A.C. 381.
88. (1951) 3 D.L.R. 577.
89. Although possibly with less cause.
90. [1996] Ch. 19.
91. Gillingham Borough Council v. Medway Dock Co. Ltd. [1993] Q.B. 343.
92. Cook v. South West Water plc [1992] Water Law 103.
93. Identifying the environmental risks involved is a matter of scientific enquiry. Once the risks have been identified, however, the weighting to be given to them is a matter for the regulator to decide. See further Sampson, “Environmental Risk Assessment of GMOs” (note 2 above).
94. See Leakey v. National Trust [1980] Q.B. 485.
95. The Wagon Mound (No. 2) Overseas Tankship (UK) Ltd. v. Miller Steamship Co. Pty. Ltd. [1967] 1 A.C. 617, 640 per Lord Reid.
96. See for example Bybrook Barn Garden Centre Ltd. v. Kent County Council [2001] Env. L.R. 543.
97. [1994] 2 A.C. 264 {H.L.).
98. [1994] 2 A.C. 264, 306. The escape of chemical solvents into the plaintiff's borehole was not in fact an isolated one in this case, but a continuing one, a fact which indicated that this would classically have been regarded as a case of nuisance {pp. 306-307). By analogy it is unlikely that the release of GMOs onto neighbouring property, thereby “contaminating” non-GM crops by wind drift or cross pollination by insects, would be regarded as an isolated escape within the Rylands v. Fletcher principle, rather than as a straightforward example of a potential private nuisance.
99. As in R. v. Secretary of State for the Environment ex part Watson {above note 27) for example.
100. See Lord Reid's dictum in The Wagon Mound (No. 2) Overseas Tankship (UK) Ltd. v. Miller Steamship Co. Pty. Ltd. [1967] 1 A.C. 617, esp. at 640, and (in the closely analogous area of Rylands v. Fletcher liability) the analysis of Lord Goff in Cambridge Water Co. v. Eastern Counties Leather [1994] 2 A.C. 264, 306.
101. See article 9.1 Proposal for a Directive on Environmental Liability with regard to the prevention and remedying of environmental damage, COM (2002) 17 final (especially article 9.1. (c) and (d)).
102. Article 9.2, As in R. v. Secretary of State for the Environment ex part Watson {above note 27) for example.
103. COM {2003) 17 final {23 January 2002). See generally [2002] 14 Environmental Law and Management 5 {B. Jones).
104. COM (2000) 66 final.
105. COM (2000) 66, Executive Summary.
106. For criticism see Maria Lee, “Tort, Regulation and Environmental Liability”, {2002) 22 Legal Studies 33.
107. Effected in Council Directive 2001/18/EC. See above note 2.
108. Article 19, COM (2002) 17 final.
109. Council Directive 79/409/EEC, [1979] OJ L 103/1.
110. Council Directive 92/43/EC, [1992] OJ L 206/7.
111. Article 2.1 (2) and (18) For criticism see Maria Lee. (definitions of “biodiversity” and of “environmental damage”).
112. See Wildlife and Countryside Act 1981, s. 28, amended by Countryside and Rights of Way Act 2000, Sched. 9.
113. COM (2002) 17, at p. 17.
114. Art 9.1(c), For criticism see Maria Lee.
115. Art 9.1(d), For criticism see Maria Lee.
116. See Directive 92/43/EEC, articles 6.2 and 6.3.
117. See Wildlife and Countryside Act 1981, s. 28E, as amended by Countryside and Rights of Way Act 2000, Sched. 9.