Though the courts evaluate the extent of the injury on a case-to-case basis yet certain general yardsticks or parameters are followed for assessing the environmental damage.
The environmental nuisance complained of must be substantial or appreciable. Trivial matters are ignored. As for instance, temporary discharge of effluents, occasional smoke, intermittent foul smells etc. are usually not considered as nuisances.
Such invasion or injury of a continuing nature causing permanent damage or long lasting harm is a nuisance. Courts and authorities overlook isolated instance of garbage burning, single over flowing of a sewer, stray incident of drifting of pesticide etc.
Another factor, which the courts consider, is whether the alleged polluter or the complaining landowner arrived first in the locality. In case the aggrieved landowner has settled later with knowledge of the already existing nuisance nearby, he is entitled to any relief since he is deemed to have paid lesser price for the property because the nuisance has eroded its value. However, now days in nuisance claims the courts are not placing that high weight on the priority of arrival factor.
In environmental nuisance claim actions the court examines if an average normal person would be upset or annoyed by the intrusion. If so, then only the same would be considered a substantial and actionable peril to be redressed by the court. The complaints of a hypersensitive person are generally not well taken.
