Matthew J. Jasen

“ This type of pollution, wherein very small particles escape and stay in the atmosphere, has been denominated as the type of air pollution [p230] which produces the greatest hazard to human health. [4] We have thus a nuisance which not only is damaging to the plaintiffs, [5] but also is decidedly harmful to the general public.
I see grave dangers in overruling our long-established rule of granting an injunction where a nuisance results in substantial continuing damage. ”

“ In permitting the injunction to become inoperative upon the payment of permanent damages, the majority is, in effect, licensing a continuing wrong. It is the same as saying to the cement company, you may continue to do harm to your neighbors so long as you pay a fee for it. Furthermore, once such permanent damages are assessed and paid, the incentive to alleviate the wrong would be eliminated, thereby continuing air pollution of an area without abatement. ”

“ The harmful nature and widespread occurrence of air pollution have been extensively documented. Congressional hearings have revealed that air pollution causes substantial property damage, as well as being a contributing factor to a rising incidence of lung cancer, emphysema, bronchitis and asthma. [2]
The specific problem faced here is known as particulate contamination because of the fine dust particles emanating from defendant's cement plant. The particular type of nuisance is not new, having appeared in many cases for at least the past 60 years. ”