Environmental Litigation

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 What Is Environmental Litigation?

Environmental litigation involves legal issues and lawsuits related to environmental laws. Environmental laws specifically refer to the bodies of local, state, national, and international laws and regulations that govern:

  • Pollution;
  • Natural resources;
  • Animal rights;
  • Environmental conservation.

The current environmental laws and regulations in the United States are intended to protect the environment and preserve it for the future without “undue interference in business and commerce.” Inducements, regulations, and laws are used to carry out this policy.

An inducement is a motivation that is either positive or negative that is intended to influence individuals and groups of people in carrying out environmental policy.

What Are the Most Significant Environmental Regulations?

A government regulation is a rule that governs how environmental policies are addressed. Some of the most well-known environmental regulations include those provided by the Environmental Protection Agency (EPA).

Environmental laws regulate public use and business use. Concerns involved in environmental law include:

  • Air quality;
  • Water quality;
  • Waste management;
  • Contaminant cleanup;
  • Chemical safety; and
  • Hunting and fishing.

Although many of the concerns noted above involve businesses, fishing and hunting issues are meant for consumers. Other issues, such as damages, may also have an effect on businesses if they desire to build on conservation or hunting lands or bodies of water that impact fish migration.

What Are Environmental Violations?

An activity or condition that violates an environmental law or regulation is considered to be an environmental violation. Examples of environmental violations include:

  • Illegal hazardous waste dumping;
  • Illegal pesticide use;
  • Burning garbage;
  • Improperly disposing of and removing asbestos;
  • Destruction of wetlands;
  • Unpermitted industrial activity;
  • Releasing particulates into the air; and
  • Illegal automobile emissions.

What Is Environmental Contamination?

Environmental contamination is the introduction of toxic substances, chemicals, or waste into the environment in a quantity that damages the environment. It is important to note that contamination may not be generally toxic, for example, salt.

An example of this would be salt being poured on someone’s property, which renders it unsuitable for farming because it cannot be removed. In this instance, the contamination is so severe that it cannot be recovered, which makes it useless.

If land is contaminated by an environmental violation, it is considered to be contaminated property or a contaminated site.

Examples of these types of issues include:

  • Mineral extractions;
  • Accidental spills;
  • Illegal dumping;
  • Waste disposal;
  • Pesticide use;
  • Fertilizer applications;
  • National defense activities; and
  • Acts of nature, such as hurricanes.

The EPA monitors contaminated sites across the country. It also oversees their cleanup.

An environmental violation is civil in nature, which means that it is enforced using civil lawsuits and not criminal proceedings. An environmental violation usually results in monetary penalties.

If the violation is extreme, it may result in criminal charges. There are numerous agencies that enforce environmental law violations.

These agencies can hold administrative hearings to determine issues of environmental violations. The EPA or local government may require an individual to present evidence and environmental reports.

When Can I Sue for Environmental Harm?

There are civil law remedies that have been applied to different types of environmental harms. The four traditional types of environmental civil lawsuits include:

  • Trespass;
  • Nuisance;
  • Negligence;
  • Strict liability.

Trespass

Trespass is a physical invasion of a property owner’s property that interferes with that property owner’s right to exclusive possession. A trespass claim usually involves invasion by an individual.

However, it may also involve invasion by an object as well. In some environmental cases, courts have found defendants liable for trespass when they allowed polluting materials, for example, sewage, garbage, or ash, to enter another individual’s property.

The possible available legal remedies for environmental trespass cases include an injunction. An injunction serves to stop the trespassing conduct from continuing.

If applicable, monetary damages may also be awarded. Monetary damages are awarded to compensate for the decrease in the market value of the property or to cover cleanup costs.

Nuisance

Nuisance is defined as the unreasonable use of property in such a way that prevents other individuals from enjoying their own property. Nuisance examples include:

  • Noxious odors;
  • Loud noises;
  • Smoke;
  • Dust;
  • Vibrations.

Nuisance is different from trespass because it requires at least two or more parcels of land, the property that is causing the nuisance, and the property, or properties, that are being affected. Additionally, in contrast to trespass, a nuisance does not require a physical invasion.

Interference with enjoyment is sufficient to be the basis of a nuisance claim. One common remedy for nuisance is an injunction. In certain cases, however, courts have, instead, issued damages awards to cover the plaintiff’s total economic loss resulting from the nuisance.

An injunction is a better remedy if curbing environmental harm is the purpose of the litigation. This is because damages awards still allow the defendant to harm both the environment and the plaintiff, just for a fee.

Negligence

Negligence is a common civil claim that is used to remedy a wide variety of personal and proprietary injuries. Negligence is defined as the failure of an individual to exercise reasonable care to prevent foreseeable risk to others.

Recovery is available when that failure causes another individual physical or economic injury. Cases of environmental negligence often involve a defendant unintentionally discharging pollutants into the environment.

Environmental negligence examples may include:

  • A pipeline leak;
  • Toxic dumping;
  • Land surface distribution;
  • Water pollution;
  • Soil pollution.

In contrast to nuisance and trespass, both of which require some intent or knowledge on the part of a defendant. Negligence claims are available for accidental harm, provided that the harm was foreseeable and that the defendant acted carelessly.

Environmental law issues may also be included in negligence cases. If a defendant’s conduct violated a code, regulation, or statute intended to protect against the type of harm, the defendant caused, their conduct will be considered negligence per se.

In this type of case, a plaintiff would not be required to show anything more to prove that the defendant violated their duty to exercise reasonable care. The legal remedy for negligence is a damages award. Damages may cover:

  • The reduction in property value;
  • Cleanup costs;
  • Compensation for a personal injury.

Strict liability

Strict liability involves abnormally dangerous activities that have been permitted to continue as a matter of public policy because they are advantageous. However, the law requires those who profit from these activities to bear responsibility for any harm that they cause.

An abnormally dangerous activity is an activity that is inherently risky, even when the individuals involved exercise reasonable care, and there is no way to make the activity completely safe.

Examples of inherently dangerous activities related to environmental law issues include:

  • Toxic substances;
  • Demolition or blasting activities;
  • Storing explosives;
  • Radioactive emissions.

Do I Need an Attorney for My Environmental Claim?

Environmental law cases can be very complex. A court will not allow a claim to move forward if the alleged injury is too general or speculative.

If you have any issues, questions, or concerns related to environmental laws, a government lawyer can provide you with advice and tell you what laws apply to your issue. If you have a claim, your lawyer can help you make the most effective arguments and help maximize your chances of recovering your claim.

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