The Story of Boomer: Pollution and the Common Law

Farber, Daniel A.
February 2005
Ecology Law Quarterly;2005, Vol. 32 Issue 1, p113
Academic Journal
This article provides an overview of the litigation between Oscar and June Boomer and Atlantic Cement Co. As is often true of famous cases, the facts and issues in Boomer were more complicated than the casebooks suggest. This section begins with a look at how the case arose and its progress through the New York courts. This also examines the case from three different perspectives. The first perspective examines the issue of damages versus injunctive relief through the lens of economic analysis. The second perspective considers the extent of judicial discretion in remedying environmental harms. The final perspective questions the continuing vitality of the common law in an age of statutes and probes the complex relationship between these two sources of law. Each of these perspectives has engaged the attention of courts and scholars. Boomer's continuing vitality demonstrates the ability of a short, simple opinion to raise such weighty and sophisticated questions. Like a small but multifaceted crystal, Boomer reflected light in several directions, each still relevant today. Moreover, the Court of Appeals' opinion gives only a cursory version of the facts, leaving the impression that the plaintiffs were suffering routine damage from air pollution. In fact, the air pollution was far from routine and the plaintiffs also suffered from other serious impacts. In addition, the opinion of the Court of Appeals was not the final word in the case. Viewing the opinion without considering what happened on remand also gives a misleading impression of the outcome. In this section, it attempts to remedy those shortcomings.


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