Environmental Litigation

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Can I Sue for Environmental Harm?

Civil law remedies have been successfully applied to numerous types of environmental harms. The four traditional types of environmental civil suits are trespass, nuisance, negligence, and strict liability.

1) Trespass

Trespass is defined as a physical invasion of an owner’s property that interferes with the owner’s right to exclusive possession. Trespass claims typically involve invasion by a person, but can involve invasion by an object as well. In environmental cases, courts have found defendants liable for trespass when they have allowed polluting materials – such as ash, sewage, or garbage – to enter other people’s property.

Potential legal remedies for environmental trespass include an injunction, to stop the trespass from continuing, and, if applicable, monetary damages, either for the decrease in market value of the property or to cover cleanup costs.

2) Nuisance

Nuisance is defined as unreasonable use of property in a way that prevents others from enjoying their own property. Examples include noxious odors, loud noises, smoke, dust, and vibrations. Nuisance differs from trespass in that it requires two or more parcels of land: the property causing the nuisance, and the property (or properties) affected. In addition, unlike trespass, nuisance does not require a physical invasion; interference with enjoyment is enough for a nuisance claim.

The typical remedy for nuisance is an injunction. Before the defendant can resume use of his land, he will have to modify his activities so that they no longer harm neighboring property owners. However, in some cases, courts have decided to waive the injunction remedy and instead issue a damages award covering the plaintiff’s total economic loss resulting from the nuisance.

If curbing environmental harm is the goal of the litigation, an injunction is the better remedy. An injunction acts as an incentive for the defendant to find a less harmful way of using his land. A damages award merely permits the defendant to harm the environment (and the plaintiff) for a fee.

3) Negligence

Negligence is a very common civil claim, used to remedy a wide variety of personal and proprietary injuries. Negligence is the failure to exercise reasonable care to prevent foreseeable risk to others, and recovery is available when that failure causes another person physical or economic injury. Environmental negligence cases typically involve the defendant unintentionally discharging pollutants into the environment.

Unlike trespass and nuisance, which require some knowledge or intent on the part of the defendant, a negligence claim is available for accidental harm, provided the harm was foreseeable and the defendant acted carelessly. Additionally, negligence is not limited to crimes against property and covers personal injuries as well. A negligence claim need not involve a parcel of land at all.

Environmental laws can also come into play in negligence cases. If the defendant’s conduct violated some code, regulation, or statute intended to protect against the type of harm the defendant ended up causing, the defendant’s conduct will be considered negligence per se and the plaintiff will not have to show anything more to prove the defendant violated his duty to exercise reasonable care.

The legal remedy for negligence is damages. Damages can cover reduction in property value, cleanup costs, or compensate for a personal injury.

4) Strict Liability

Strict liability involves abnormally dangerous activities that have been allowed to continue as a matter of public policy because they are advantageous, but the law requires those who profit from the activity to bear responsibility for any harm it causes. Basically, those who engage in abnormally dangerous activities are always liable for any resulting harm.

An abnormally dangerous activity is an activity that is inherently risky; even when everyone involved exercises reasonable care there is no way to make the activity completely safe. Examples include activities that involve toxic substances, demolition or blasting activities, storing explosives, and radioactive emissions.

Statutes Can Create Additional Causes of Action

In addition to these traditional types of civil suits, new environmental laws can also create new rights for certain citizens and, if those rights are violated, new causes of action. One example is the Resource Conservation and Recovery Act (RCRA), which permits individuals to sue for injunctive relief when an entity is dealing with hazardous waste in a way that threatens human health and the environment. Another example is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which allows those who incur costs cleaning up environmental contamination to sue the responsible parties for reimbursement.

Other Environmental Claims

Other environmental law claims include:

Do I Need an Attorney for My Environmental Claim?

Environmental law is a complex and murky field. Courts don’t allow claims to move forward if they feel the alleged injury is too general or speculative. An experienced environmental attorney can help you make the best arguments and maximize your chances of recovering on your claim.

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Last Modified: 11-16-2015 09:32 PM PST

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