Chapter 9 – Regulatory Agency

  • Legal Considerations
    • Definitions
      • Land Owner – Holder of legal title to land, as evidenced by deed.
      • Land Occupant or Tenant – Holder of lease or rental interest in land, or portion thereof, entitling such person to exclusive possession of agreed portion of land for term of lease or rental agreement.
      • Land Easement – A nonpossessory property interest that allows the easement holder to use another person’s land, or limits the land owner in the use of the land, for the benefit of the easement holder.
      • 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).
    • Common Law

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 underlie or have been codified into many a modern statute adopted by US states and Congress.  In like manner, this proposal identifies common law causes of action relevant to developing statutes for EH&S regulation of artificial light.  Such areas of the law include tort, property law and other types of civil claims, as follows:

  1. Property Law
    1. Trespass – Wrongful interference with an owner’s (or legal occupant’s) right to exclusive possession of real property by physical entry onto that property; Entry of a person (or object controlled by that person) onto another person’s land (owner or occupant) without their  permission.
    1. 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.
      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. Misuse of Easement – exceeding the scope or wrongful use of an easement or right-of-way.
    1. 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
    1. Ultrahazardous Activity – Breach of an absolute duty of care to protect others from an ultrahazardous condition or activity on property
    1. Tort Law
      1. Assault – An intentional act directed toward another (e.g., threat) that causes that person apprehension of imminent physical harm or unwanted physical contact.
      1. Battery – An intentional act directed toward another that causes physical harm or unwanted physical contact to that person.
      1. 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.
      1. Products Liability – Breach of the duty of the manufacturer or supplier to protect the consumer from harm resulting from a dangerous or defective product.
    1. Other
      1. Breach of Fiduciary Duty – the failure of a trustee to exercise the duties owed to beneficiaries of the trust.
    1. Statutes

Statutes adopted by states based on common law principles included terms and causes of action such as follows:

  1. Assault & Battery – Common law actions combined into single cause of action.
    1. 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).
    1. Pollution – Degradation of a medium (e.g., air, water, soil) to the extent that it results in contamination or impairs beneficial uses (e.g., taste and odor). 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. 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).
    1. Proposed Regulatory Definitions Related to Light
      1. Artificial Light – Light emitted by an artificial light source, such as electrical, electronic, or gas plasma lamp.
      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. Proposed Statutory Causes of Action Related to Light
      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. iv. 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., high  K LEDs, lasers, weaponized light).
    1. 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,
    1. Third Party Civil Suits

The proposed regulations would authorize third party lawsuits 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.

  • Standing to sue
    • 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.
    • 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.
    • Other Claims
      • Ecosystem or Resource Damage – gravamen of the claim must be harm to plant, animal, ecosystem or natural resource (e.g., darkness).
      • Environmental Claims – gravamen of claim must be harm to living being from light pollution, degradation, or public nuisance

      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. [move to other topic]

  1. Existing California Lighting Laws and Regulations

The American legal system, like those of many western countries, follows a two-tiered system of laws dating back to the Roman era. The first tier consists of statutes (also referred to as primary or enabling legislation) adopted by a legislature and the second tier consists of regulations and administrative laws adopted by the Executive branch, including various regulatory agencies, under delegated authority or mandate from the statutes. 

In the Federal system, the primary legislation (i.e., statutory law) is found in the United States Code (USC) and the secondary or administrative rules are in the Code of Federal Regulations (CFR).

In California, the primary legislation/statutes are found in the California Code.  There are currently 29 “Codes” in the California Code, identified by general subject area as follows:[f]

Name of code
Business and Professions CodeInsurance Code
Civil CodeLabor Code
Code of Civil ProcedureMilitary and Veterans Code
Commercial CodePenal Code
Corporations CodeProbate Code
Education CodePublic Contract Code
Elections CodePublic Resources Code
Evidence CodePublic Utilities Code
Family CodeRevenue and Taxation Code
Financial CodeStreets and Highways Code
Fish and Game CodeUnemployment Insurance Code
Food and Agricultural CodeVehicle Code
Government CodeWater Code
Harbors and Navigation CodeWelfare and Institutions Code
Health and Safety Code 

Statutes relating to artificial light can be found in various California Codes such as those highlighted above. When viewed through an EHS lens, however, it is evident that they are, for the most part, out of date.  Those that have been updated primarily address only global warming and energy efficiency issues not the EHS issues described in this proposal.[1]  As such, the lighting statutes in California are out of step with modern EHS laws that other sectors of the economy have to comply with to address EHS threats of their activities/products.  For example while it would be unlawful for Neighbor A to dump household waste in the street or discharge pesticide rinsate to the storm drain, under existing law it would legal for that person to install a bright LED house light that emits waste light into the street. Further, by failing to address EHS issues, these updated statues have made EHS matters worse by allowing (if not requiring) bright, glary electronic lighting such as LEDs that otherwise would not have passed EHS muster without substantially more research and modification of product. 

It is unlikely that LED lights would have become the global standard in their present form (or in any form) if they had not been given a pass on EHS review.  Current lighting statutes thus represent a misallocation of resources and a subsidy of lighting technology  that has not proven itself as being in the public interest. Much EHS information indicates rather that the lights essentially produce a waste (waste light), not a product fit for consumption that the consumer would choose to buy if not coerced or given no other choice or if faced with potential light-related tort liability is used.  Any purported energy and cost savings are thus far outweighed by the EHS costs of waste light and energy wasted producing it.  To the extent that the new electronic lighting is consistent with global warming mandates, one has to ask, at what cost?  Are we merely exchanging global warming for global brightening?  While such shallow legislative analysis has been good for the LED lighting industry, at least in the short term, it has actually increased overall costs by creating “negative externalities” such as light pollution.  It has also given the lighting industry the message that their lights are fine for public consumption, reducing any incentive for industry to address lighting EHS issues.

One need not look far to figure out how such dysfunction in the legislative process could occur.  Transformation of the economy to energy saving LEDs seemed like a win-win proposition. To this day city councils coo over budgetary savings of the lights and overseas factories churn them out like silicon chips.  Artificial lighting has become “commoditized”. Experts consulted in modernizing older lighting statutes often have connections with the lighting industry and are not able to give objective input. Ditto for experts from university lighting institutes with close ties to industry and a shocking lack of awareness or interest in EHS issues associated with the lighting they are developing. It is obvious that to them, considering EHS issues is a “buzz kill” and money loser. In summary, it does not make sense to reduce the threat of one type of environmental harm (e.g., water pollution, global warming) at the expense of another (e.g., air pollution, global brightening).

To better serve the interests of the people of the State, and meet minimal constitutional standards, it is evident that California’s lighting statutes need to be updated and modernized to address the full scope of issues associated with modern lighting, not just purported global warming goals. To this end, it is proposed that a new (i.e., 30th) code dedicated to the regulation of the environmental, health and safety impacts of artificial light be added to the California Code.  The new Code would consolidate (or incorporate by reference) existing statutes in existing code volumes, new statutes outlined in this proposal, and serve as the source of authority for all future light-related state legislation. The proposed new Code would be called the “Natural Light Code” or “Light and Dark Code” somewhat analogous to the existing Water Code. The new code would include the following major elements:

  • Declarations
    • A significant percentage of humans and animals are light sensitive depending on race/species, genetics, disorder and a number of other factors. All plants that rely on photosynthesis for energy are also light sensitive.
    • Humans, plants and animals evolved under natural light, not the artificial light.  It therefore cannot be assumed that artificial light is healthy or harmless.
    • Mounting scientific and medical evidence indicates that artificial light, especially high energy light like plasma and LEDs, are or can be harmful to humans, plants and animals.
    • Artificial light at night (ALAN) poses a potential threat plants and animals because they live outdoors and did not evolve under ALAN. ALAN is a threat to humans also because even though they live indoors, they evolved outdoors.
    • Various properties of light, such as type, spectrum, intensity, and source configuration are or can be damaging and unhealthy to humans, plants and animals.
    • Some people (sensitive receptors) are more sensitive to light (or a given property of light) than others due to genetic factors, disease, disorder, injury or other factors.
    • Some animal species (sensitive receptors) are more sensitive to daylight than others, especially nocturnal species.
    • Artificial light at night poses a potential threat to nocturnal species, depending on light type and species. More study of these sensitive receptors is needed.
    • Some animals are also nocturnal and averse to both daylight and/or artificial light at night.
    • Some people (sensitive receptors) are more sensitive to one type/property of artificial light than another type/property of artificial light.
    • Unnecessary, excessive, or harmful artificial light is a waste by definition.
    • Waste artificial light is an environmental pollutant that pollutes natural light and is or can be harmful to humans, plants and/or animals
    • Waste outdoor artificial light during the day pollutes or degrades the quality of natural daylight;
    • Waste outdoor artificial light (or indoor artificial light can been seen from outdoors) at night pollutes natural light from the moon and stars and can contaminate darkness, adversely impacting the health and well being of humans, plants and animals at night
    • negatively impacting light at night, during the daytime, at dawn, or dusk.
      • sis an environmental pollutant that needs to be regulated
      • Problems with LED lights
    • Artificial light must be adapted to serve humans, plants and animals, not the other way around.
    • Prosthetics and specialized lenses are therefore no substitute for healthy inddor and outdoor light.
    • Statements of purpose
      • Protect humans, plants and animals from harmful affects of artificial light
      • Promote use of natural light for EHS
      • Protect natural light as a resource
      • Establish minimum standards for use of artificial light
      • Require permitting and enforcement
      • Establish means for delegation of authority
      • Promote/require ongoing light EHS research
      • Promote consistency and uniformity in light EHS laws
      • Statutory scope and applicability
        • Lighting Sector
        • Primary EHS issues
        • Public vs private domains
        • Federal vs state land/facilities
      • Provide authority and mandate for:
        • Establishment of artificial lighting EHS regulatory agency under CalEPA
        • Issuance of artificial lighting EHS regulations by new CalEPA agency
        • Other regulatory agencies to update their lighting laws and regulations to comply with CalEPA EHS lighting regulations and standards.
      • Require that artificial lighting plans consistent with the EHS Code and regulations promulgated thereunder be developed for each lighting sector under the Code.

•    , including protection of the environment, public and plant and animal life from harmful or potentially harmful impacts of artificial light; ensuring artificial light is safe; 

    To study and better understand the impacts of artificial light on the environment, including humans, plants and animals.      To identify and regulate any safety hazards associated with artificial light. •     Bring uniformity and consistency to artificial lighting laws in like sectors, as appropriate;

  1. Secondary Law (Regulations)

Secondary legislation in California is embodied in the California Code of Regulations (CCR), which consists of 28 titles representing the regulations of approximately 200 regulatory agencies, as follows:

Title 1: General ProvisionsTitle 15: Crime Prevention and Corrections
Title 2: AdministrationTitle 16: Professional and Vocational Regulations
Title 3: Food and AgricultureTitle 17: Public Health
Title 4: Business RegulationsTitle 18: Public Revenues
Title 5: EducationTitle 19: Public Safety
Title 6: Governor’s Regulations (empty)Title 20: Public Utilities and Energy
Title 7: Harbors and NavigationTitle 21: Public Works
Title 8: Industrial RegulationsTitle 22: Social Security
Title 9: Rehabilitative and Developmental ServicesTitle 23: Waters
Title 10: InvestmentTitle 24: California Building Standards Code
Title 11: LawTitle 25: Housing and Community Development
Title 12: Military and VeteransTitle 26: Toxics
Title 13: Motor VehiclesTitle 27: Environmental Protection
Title 14: Natural ResourcesTitle 28: Managed Health Care

It should be noted that each of the above Titles have evolved over time as a result of agency rule-making actions under delegated authority from statute, including enacting, amending or modifying, and/or repealing regulations.  Such actions are often proposed in the form of an “act” and the once adopted collectively referred to by subject as “code” even though regulation not statute. Examples – California Energy Code, California Building Code.  

For example, Title 24 (promulgated by the California Building Standards Commission in 1978), the California Building Standards Code, currently consists of 11 sections or parts containing minimum standards and requirements for various aspects of residential and non-residential buildings (e.g., building, electrical, mechanical, plumbing, energy conservation etc.).  Title 24, Part 6, promulgated by the California Energy Commission in 2008 is referred to as the California Energy Code (CEC). The CEC sets minimum energy efficiency/efficacy standards for new and existing buildings, including appliances and indoor and outdoor lighting (residential and non-residential).  Additional energy conservation-related regulations are foundin Title 27, Part 11. Both parts are intended to reduce wasteful and unnecessary energy consumption in newly constructed and existing buildings. The California Energy Commission revisits and updates these regulations every three years by working with stake holders in a public process.

Scientific discoveries of the last two centuries revealed the importance of light in the inanimate world of physics – the light bulb, photoelectric effect, special relativity, gravity and quantum mechanics and many others.  Without these scientific breakthroughs today’s modern technology would not exist. Given the importance of light in the field of physics and high technology, it should be no surprise that light is just as important to the animate world we live in, for without natural light from the sun and nurturing darkness from the moon and starts at night, there would be no life on earth as we know it. So it is obvious that we ignore lighting issues at our own peril.

With the importance of light in mind, this proposal proposes a California Artificial Lighting Code consisting of amendments to related regulations such as the titles shown in bold above.

[1] Such Codes include, for example, the Streets and Highways Code (e.g., street light funding), the Vehicle Code (motor vehicle lamps), the Public Utilities and Public Resources Codes (e.g., light energy conservation and efficiency), and the Health and Safety Code (e.g., prohibition of hazardous substances in general purpose lights).