Immunity from Nuisance: Georgia’s New Twist for State Commercial Space Laws

The latest candidate for state laws limiting liability for commercial space activities was introduced in Georgia with the Georgia Space Flight Act. The bill, which is sponsored by Georgia state representatives Jason Spencer, Mickey Stephens, Ron Stephens, Jeff Jones, John Corbett and Craig Gordon, is designed along the line of other state-sponsored bills to facilitate commercial space activities in particular to limit liability for commercial space flight providers. However, the Georgia Space Flight Act takes an additional step in that it specifically addresses the concept of legal nuisance from the scope of commercial spaceflight activities.

The definition of what constitutes a nuisance is exhaustive, but for purposes of commercial space flight activities the legal definition of nuisance can be defined as…

“…that activity, which arises from unreasonable, unwarranted or unlawful use by a person of his own property, working obstruction or injury to right or another, or to the public, and producing such material annoyance, inconvenience and discomfort that law will presume resulting damage.”

Nuisance can be broken-down into two specific types: private and public. A private nuisance is one that interferes with a person’s enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation. Examples of nuisances interfering with a person’s enjoyment and use of property comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Such nuisances can be redressed by a civil action of law or equitable enforcement through an injunction, which requires the property owner to file suit for damages or equitable relief.

A public nuisance consists of a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience, or welfare of a community. Because they threaten the welfare of the community, public nuisances are usually regulated by ordinances prohibiting specific activities. Public nuisances may also be controlled through municipal land use decrees such as zoning ordinances.

Commercial space flight activities will likely create liability for both private and public noise-related nuisance, which could result in local ordinances, restricting commercial space flight activities as well as civil and equitable actions seeking private redress. The Georgia Space Flight Act seeks to proactively impair the ability of private and public nuisance to impede nascent commercial space activities. The bill does so in two ways.

First, the Georgia Space Flight Act appears to grant commercial space flight operators  immunity from a local government’s ability to regulate public noise-related nuisance in that:

“[n]o local governmental unit shall adopt any ordinances, resolutions, permits, or other regulations relating to noise control, noise pollution, or noise abatement to prohibit conduct of a space flight operation;”

The tenor of this phrase appears to indicate it only affects a local government’s ability to create ordinances, regulations, zoning decisions, etc. to address public nuisance in the form of noise.  However, the bill makes it clear it is not intended to bar local government’s ability to address public nuisance outside of public nuisance created by space flight operators, i.e. noise, in that…

“…nothing in this Code section shall be construed to restrict, affect, or diminish the ability of any local government to adopt or enforce ordinances, resolutions, permits, or other regulations or otherwise to exercise any lawful power under the Constitution or laws of the State of Georgia not in conflict therewith, including, without limitation, those affecting zoning, land use, or use of public rights of way.”

The bill then takes a step to address private nuisance and so-called mixed or united nuisance, which is a nuisance both public and private in that the effect of the nuisance violates public rights, injures many persons or the community; and private, because it also produces special injury to private rights. For example, pollution of a body of water will affect both public rights to its use and private rights as well. In the case of commercial space operations, it is foreseeable space flight operations would create noise-related nuisance, which not only affects use of private property but the community as a whole.

Accordingly, the Georgia Space Flight Act bars criminal and civil actions for noise-related nuisance that might interfere with space flight activities.  This prevents private individuals and local government from precluding or impairing commercial space activities that creates noise-related nuisance.

“No space flight operation shall be subject to any action for civil or criminal liability, damages, abatement, or equitable relief, including, but not limited to, declaratory judgment and injunctive relief resulting from or relating to noise generated by lawful space flight activities conducted or generated by a space flight entity as part of the space flight operation.”

The Georgia Space Flight Act seeks to protect commercial space providers through limited liability and informed consent as found in the laws of Virginia, New Mexico, Texas and others, but differentiates itself by giving commercial space providers blanket immunity from both private and public noise-related nuisance. It is notable the Georgia Space Flight Act does not prevent third parties from filing suit or seeking injunctive relief against commercial space operators for other forms of nuisance, torts or other actions at law as it is specifically tailored to to prevents third-parties and local municipalities from seeking redress from noise-related nuisance generated by commercial space operators.

In comparison, the Texas limited liability provisions for commercial spaceflight have a less stringent clause for nuisance:

Sec. 100A.002. LIMITED LIABILITY. (a) Except as provided by this section, a space flight entity is not liable to any person for damages resulting from nuisance arising from testing, launching, reentering, or landing or subject to any claim for nuisance arising from testing, launching, reentering, or landing.

Significantly, the Texas statute places a limit on nuisance in that a space flight entity is “not liable” for damages, which implies the Texas legislature foresaw situations where nuisance might be actionable and does not preclude equitable actions such as abatement or injunctive relief.  Moreover, it does not specifically single out noise-related nuisance. Conversely, the Georgia Spaceflight Act makes it explicit  space flight operators are not liable to third-parties, i.e. third-parties have no legal or equitable recourse for noise-related nuisance and in effect invalidates a cause of action or equitable action for noise-related nuisance as it relates to commercial space flight operations.

That being said, even if the Georgia Space Flight Act makes commercial space operations immune to noise-related nuisance, it is possible the noise-related nuisance from space flight operations could aggregate to a point where the continued activity reaches the level of another civil cause of action or criminal violation that is not precluded by the bill.  Absent any other legal or equitable remedies, there exists the potential of a third-party to bring an action for a taking under the 5th Amendment of the Constitution, if continued space flight operations diminish the value of private property or permanently damages a business.  Consider, even though the Georgia State government would not be physically taking the property of private third-parties through this law, the potential economic impact of preventing third-parties from seeking redress for noise-related  nuisance weighed with other factors could reach the level of a taking under the 5th Amendment.

Whether such an action would be brought or succeed is speculative at this point because the bill has just been introduced.  Even if it moves forward, it will certainly meet resistance and modification before it is passed and signed into law. However, if and when the bill is passed and the nuisance provisions survive, any action or challenge to the law will be the subject matter of the federal district courts per 51 U.S.C. § 50914(g).  Of course any challenge to the law presumes the State of Georgia can attract commercial space providers. As with many other aspects of commercial space, time will tell whether that will come to pass.

 

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