1. Legal Considerations

In its early years before statutes were developed, the American legal system relied heavily on English common law, which consisted of the body of settled court case decisions developed in England over hundreds of years.  The American legal system ultimately developed its own version of Common Law borrowing in part from English laws and statutes. Common Law principles and doctrines have also been incorporated into, or had a great influence on, most statutes adopted by the states.  As such, this proposal identifies Common Law causes of action and associated legal definitions relevant to the regulation of artificial light to form the basis for developing statutes for the EH&S regulation of artificial light.  These  include tort, property law and other types of civil claims, such as follows:

1. Common Law Terms & Civil Actions Relevant to Light Regulation
   1. Property Law

• Nuisance – the unreasonable, unwarranted, or unlawful use of one’s property (owner, occupant or easement holder) in a manner that substantially interferes with the enjoyment or use of another individual’s property (owner, occupant or easement holder), without an actual trespass or physical invasion of the land. See Legal Dictionary, The Free Dictionary, by Farlex at https://legal-dictionary.thefreedictionary.com/public+nuisance.
  • Misuse of Easement – exceeding the scope or wrongful use of an easement or right-of-way.
  • Ouster – The wrongful dispossession or exclusion of a person entitled to possession of property. Ouster occurs when someone knowingly prevents a landowner from entering or using all or part of their property
  • Ultrahazardous Activity – Breach of an absolute duty of care to protect others from an ultrahazardous condition or activity on property
  • Tort Law
    • Assault – An intentional act directed toward another (e.g., threat) that causes that person apprehension of imminent physical harm or unwanted physical contact.
    • Battery – An intentional act directed toward another that causes physical harm or unwanted physical contact to that person.
    • Negligence – an act or omission proximately causing harm to a person to which a duty of reasonable care is owed representing a breach of that duty as judged by what a reasonable and prudent person would have done under the circumstances.
    • Products Liability – Breach of the duty of the manufacturer or supplier to protect the consumer from harm resulting from a dangerous or defective product.
  • Other
    • Degradation – Lowering the quality of something by introduction of a foreign substance. 
    • Contamination – the rendering of something impure or harmful by introduction of a foreign substance (i.e., contaminant).
    • Breach of Fiduciary Duty – the failure of a trustee to exercise the duties owed to beneficiaries of the trust.
• Statutory Terms & Civil Actions Relevant to Light
  • Assault & Battery – Common law actions combined into single cause of action.
  • Contamination – Degradation of a substance or medium (e.g., air, water, soil) to a degree that it creates a public health hazard (e.g., through exposure, poisoning or spread of disease).
  • See also EPA definition.

1. Condemnation – an action by the government that so interferes with the owner or tenant’s possession or use of land so as to result in ouster. The Constitution requires that the owner receive fair compensation for the value of the condemned land.
   1. Public Easement – Easement in land for the benefit of the public (e.g., access, view)
   1. Easement for View – Public or private easement requiring land owner to refrain from activity that could impair use of the easement for its intended purpose (e.g., access, view).
   1. Private Nuisance – A nuisance that interferes with the rights of a single property owner or occupier, not the public in general.
   1. Public Nuisance – A nuisance that harms or interferes with the rights of the public in general or causes special harm to an individual property owner/occupier not shared by the public.

1. Public Trust Doctrine – duty of sovereign states to hold and preserve certain resources including wildlife, for the benefit of its citizens. The doctrine provides that natural resources belong to the whole public; private owners may not deprive the public of access.
   1. Environmental Resources Damage – State or Federal government authorized to sue responsible parties for damages for harm to natural resources caused by the release of hazardous substances. See CERCLA, 42 U.S.C. §§ 9607-9675, the Oil Pollution Act (OPA), 33 U.S.C. §§ 2701-2761 and 33 U.S.C. § 1321 of the Clean Water Act.
   1. Child Abuse – an act, or failure to act, on the part of a parent or caretaker that results in the death, serious physical or emotional harm, sexual abuse, or exploitation of a child, or which places the child in an imminent risk of serious harm (42 U.S.C.A. § 5106g).
   1. Civil Rights Claims – Various statutory claims based on constitutional rights to due process and equal protection (e.g., Americans with Disabilities Act).
2. Proposed Regulatory Definitions Based on Above
   1. Artificial Light – Light emitted by a man-made, artificial including electrical, electronic, or gas plasma.
   1. Natural Light – Light from the sun during the daytime; moon and stars during the night time; and a combination of both during dawn and dusk.
   1. Light Trespass – The casting of artificial light beyond one’s property boundary onto another person’s property (owner or occupant) without their  permission.
   1. Private Light Nuisance – Artificial light emitted from private property that substantially interferes with another person’s enjoyment or use of their land (owner, occupant or easement holder); or impairs a residential beneficial use listed in these regulations or applicable local ordinance promulgated thereunder.
   1. Public Light Nuisance –
      1. Artificial light emitted from public property that harms or interferes with the rights of the public in the legal use of that property, causes special harm to a private individual not shared by the public, or impairs a beneficial use of that property specified in these regulations or applicable local ordinance promulgated thereunder; or
      1. Artificial light emitted from private property that harms or interferes with the rights of the public in the legal use of public property, causes special harm to a private individual using public property not shared by the public, or impairs a beneficial use of residential or public property lighting sector specified in these regulations or applicable local ordinance promulgated thereunder; or
   1. Light Degradation – The degradation of natural light with unnecessary artificial light.
   1. Light Pollution – The degradation of natural light with unnecessary artificial light that impairs one or more of the designated beneficial uses of natural light in a given lighting sector, as specified in these regulations or local ordinance promulgated thereunder.
   1. Light Easement – An easement for view that requires the owner/occupier of the servient estate to refrain from emitting artificial light that might obscure, blind, or otherwise interfere with the view of the beneficiary of the easement.
   1. Hazardous/Ultra-Dangerous Lights – Lights of sufficient brightness, intensity, energy or other characteristics so as to pose an imminent risk of death or serious harm or acute or chronic toxicity (e.g., __K LEDs, lasers, weaponized light).
3. State of Mind for Liability
   1. Intentional conduct
   1. Acts done knowingly or recklessly
   1. Negligent acts
   1. Strict Liability – Hazardous/Ultra-Dangerous Lights, defectively designed or manufactured lights,
4. Third Party Civil Suits

The proposed regulations would authorize third party law suits against private citizens, corporations and other forms of business organizations, and public entities for alleged statutory claims related to light listed above.  Such suits could be brought in state or federal court provided jurisdiction exists under applicable rules of civil procedure for each court.

1. Standing to sue
   1. Tort Claims – In general, the claimant must have been physically or mentally harmed, or be suing on behalf of another person who has been physically or mentally harmed by the alleged wrongful action. In other words, the gravamen of the claim must be harm to a human being, not a plant, animal or non-living legal entity such as a corporation. Also, monetary or property damage alone is not sufficient to show harm.
   1. Property Claims – gravamen of claim must be damage to property or property interest (e.g., exclusive occupancy, use and enjoyment). Harm to human health may be sufficient for this showing but is not necessarily required.
   1. Other Claims
      1. Ecosystem or Resource Damage – gravamen of the claim must be harm to plant, animal, ecosystem or natural resource (e.g., darkness).
      1. Environmental Claims – gravamen of claim must be harm to living being from light pollution, degradation, or public nuisance

The Public Trust Doctrine

                The Public Trust Doctrine states that government officials, as Trustees of the Darkness resource, have a legal obligation to protect the darkness resource for the benefit of all.

Biological Systems vs. Artificial Systems

Biological systems have evolved over millions of years based on the 365-day year and the 24-hour day/night cycle.  These biological systems include humans, wildlife, plants, and the ecological system that supports them.  The molecular structure of these systems is dependent both on darkness and light to trigger growth, eating, sleeping and other functions.  Therefore, both darkness, light and temperature are all critical needs of biological systems that must be protected.

Humans have invented other systems such as businesses, corporations, and artificial intelligence.  These artificial systems are not persons and are not dependent on the evolutionary process.  They do not function at the cellular level and therefore can function without the day/night cycle.  As such, these artificial entities have no rights and no legal standing to sue or protest any regulations that are proposed or created that are designed to protect biological systems.

Similarly, since governments are also artificial entities, Federal, State and Local governments also do not have standing to sue or protest any of these regulations that are designed to protect the functioning of biological systems at the cellular level.

Any human, animal, plant or other biological system does have standing to sue or protest these regulations if there is anything in these regulations that do not adequately protect the functioning of a biological system.  The right to sue or protest does not extend to artificial concepts such as speech, money, religion, or jobs.