'Toxic Town' features real-life, toxic-tort tragedy in UK

Premiering on February 27, Toxic Town (IMDb), a compelling new miniseries on Netflix fictionalizes a true story of toxic tort in England.

The show couldn't have been timed better for my 1L Torts students' study of public nuisance, which we just completed. The real-life events of Toxic Town are sometimes called "the British 'Erin Brockovich.'" The facts are even more like the case of water contamination in Woburn, Mass., which was the subject of A Civil Action, though Toxic Town makes much of the cadmium in circulating dust as key to opening up the case. 

In the Toxic Town matter, the town of Corby had its water supply poisoned by a defunct steelworks in East Midlands, England, resulting in a cluster of birth defects in the 1980s and 1990s. The courts ultimately ruled in favor of complainants for public nuisance against the local government, which was willfully sloppy in trying to rehabilitate the old steelworks and was not forthcoming with information when challenged. The parties settled confidentially on appeal in 2010. There's more about the true story at Esquire, Time, and BBC.

I don't know enough about British tort law to assess the portrayal of the legal case in Toxic Town. There are some compelling points that suggest the series as a worthwhile study in comparative law. The plaintiff solicitors and barristers refer to a standard of "knowing negligence," which sounds to me closer to recklessness than to negligence in American tort law. The plaintiffs' expert says he must testify with 95% certainty, an extraordinary bar. That requirement causes the plaintiff lawyers to trim their client class. In the court proceedings, a bench trial in the British system, there is testimony that would be excluded for fear of prejudice in an American jury trial. The miniseries also makes much of political tensions within the defendant town council, including a cover-up, implicating the freedom of information. I would welcome an opportunity to study further the similarities and differences here between U.S. and UK law.

The all-star cast of four-episode Toxic Town includes former Doctor Who Jodie Whittaker as the lead "Erin Brockovich" character, based on real-life mother-plaintiff Susan McIntyre. My beloved Robert Carlyle, Trainspotting's "Begbie," plays a town councilor with a conscience. The immediately recognizable Rory Kinnear plays the Civil-Action-Travolta-like plaintiff lawyer, Des Collins. Another favorite actor of mine, Michael Socha—Being Human (UK), and a co-alum with Carlyle of Once Upon a Time—plays the Whittaker character's unreliable love interest.

Town asserting 'full-on assault of stink' wins latest round in nuisance feud with hot-mix asphalt maker

Quarry and asphalt manufacturing facility in England.
Richard Law via Wikimedia Commons GNU 1.2

An asphalt plant that residential neighbors blamed for burning eyes and sore throats is a public nuisance, the Massachusetts Appeals Court affirmed Friday.

There's been much hand-wringing over the use, and argued misuse, or even abuse of public nuisance law in recent years, from me included. The sub-subject is addressed in my recent 2 Tortz (2024 rev. ed.) (SSRN), and a recent book by the insightful Prof. Linda Mullenix sits on my desk, patiently awaiting attention.

But Friday's case is a reminder that sometimes, a public nuisance is just a nuisance.

The defendant's property, in Acushnet, Massachusetts, on the commonwealth's south coast and just 10 minutes from my work, was a quarry since the 1890s and an asphalt plant since the 1950s, the court recounted. Then in 2021, owner P.J. Keating (PJK) started operating a newly constructed hot-mix asphalt plant located closer than its predecessor facility to neighboring residential properties. Subsequently, local resident complained to the Acushnet Board of Health of noxious odor and burning eyes, noses, and throats.

The board ultimately sent two investigators, one its own agent and one a hired expert. Both validated the complaints. The board's agent reported, according to the court, that "the odor was 'horrendous,' lasted throughout his fifteen-minute visit, made his eyes water, and left him feeling dizzy for one-half hour after leaving the site.... He testified that at the home of one resident, he rated the odor as level four [of seven], but at another home he rated the odor as a seven for the duration of his visit, a 'full-on assault of ... stink.'"

PJK provided contrary evidence. PJK told the board that it complied with the toughest regulatory standards, and its activity comported with the property's industrial zoning. PJK cast doubt on the credibility of the complainants, showing that a great many complaints came from relatively few neighbors. And some complaints occurred at times when the plant was not operating, PJK submitted. PJK also submitted expert evidence to argue that any odors or fumes posed no risk to public health.

Some of the disconnect might have resulted from the source of odors or fumes being transport trucks rather than the plant itself, the board expert suggested. When the mixing facility was located deeper in the property, the hot-mix asphalt had more time to cool while it was loaded into the trucks. With the new facility, trucks were loaded and hit the road, close to residences, while the asphalt was still hot.

Either way, the problem before the Appeals Court was not really one of merits. After the Board of Health ordered PJK to cease and desist until it could get its emissions under control, PJK sought and obtained relief in the Superior Court. The Superior Court ruled that the board's decision was arbitrary and capricious and not supported by substantial evidence, so annulled the cease and desist.

Hardly so, the Appeals Court ruled: "We think it plain that the record contains substantial evidence supporting the board's conclusion that PJK's plant is a public nuisance." The board might have given witness testimony more credit than PJK cared to, but that's the job of the fact-finder. The board received abundant evidence from both sides, so its conclusion was neither arbitrary nor unsubstantiated.

As a point of interest, the court observed that the board's legal determination must be given some latitude. Quoting the state high court from 1952, "[b]oards of health are likely to be composed of laymen not skilled in drafting legal documents, and their orders should be read with this fact in mind. They should be so construed as to ascertain the real substance intended and without too great attention to niceties of wording and arrangement."

At a deeper level, the simple case is indicative of the challenge at the heart of public nuisance doctrine, a division between the powers of the judiciary, resonating in corrective justice, and the powers of the political branches, resonating in distributive justice.  Public nuisance cases are difficult because they put the courts in the position of enforcing amorphous public policy, here, enjoining the operation of a lawful business.

In this vein, it's telling that PJK relied on its full compliance with zoning laws, industrial regulations, and public health and environment laws. The strategy effectively argues that the question presented already has been decided by the political branches, so the courts should not second guess. If residents don't want an asphalt plant next door, the argument goes, their remedy is with the zoning commission. To burden a business beyond substantial regulation is to invite courts to interfere with the economy: not their job.

In another state, that argument might win the day. Massachusetts courts are less solicitous, or more willing to assert regulatory authority, if there is no plain political mandate to the contrary. The court here agreed with the board that just because asphalt-mixing odors and fumes are not regulated, or are regulated only at extremes—in fact, the EPA deregulated asphalt manufacturing emissions in 2003—does not mean there is no risk to public health, nor even that emissions are not carcinogenic.

One need look no farther than PFAS to show that non-regulation is not necessarily indicative of safety.

The outcome here is bad news for a nasty collateral litigation brought by PJK in 2022 against the Town of Acushnet.

The PJK suit in federal court demands $50 million dollars for losses in stalled productivity at the facility. PJK accused the town of regulatory taking through "a series of deliberate, methodical, concerted, and systematic actions to specifically target Plaintiffs and the Property and to stop the legal, longstanding operations on the Property," WJAR reported in January. According to PJK, "the [board agent] has stated that 'the Town hired him "to make PJK's life a living hell."'" 

Currently in discovery, the federal case is Tilcon, Inc. v. Acushnet, No. 1:22-cv-12046 (D. Mass. filed Dec. 2, 2022).

Friday's case is P.J. Keating Co. v. Acushnet, No. 23-P-629 (Mass. App. Ct. Apr. 12, 2024) (temporary state posting). Justice Peter W. Sacks wrote the unanimous opinion of the panel, which also comprised Justices Meade and Massing.