Environmental Litigation


Perhaps without realizing it, environmental law affects just about every aspect of our lives. Drinking water, for instance, must meet federal and state quality standards before the public may consume it. Carmakers must comply with emissions standards to protect our air quality. And state and federal regulations control the manufacture, transportation, storage, and disposal of hazardous chemicals used to make a multitude of consumer products from toiletries, to detergents, and batteries to name just a few.

Environmental law is a combination of common law principles, state and federal statutes, and other regulations. Following is a very basic overview:

Common Law

  • Nuisance - modern environmental law originated in the common-law tort of nuisance. A nuisance occurs when a landowner or occupier of land unreasonably uses it a way that interferes appreciably with the rights of others in the area. The nuisance can be public or private and courts attempt to weigh the gravity of the nuisance and whether its environmental injury outweighs its utility prior to declaring it as such.
  • Trespass and negligence - while nuisance deals primarily with repetitive and continuing harm, trespass and negligence principles provide relief even if the harm resulted from a single event, such as a single oil spill or chemical dump on a neighboring property.
  • Strict liability - applies to situations in which the landowner's activity is deemed abnormally dangerous, resulting in fact in the harm. Examples include oil well drilling, pile driving, crop dusting, and blasting.
  • Prior appropriation and riparian rights - a riparian proprietor owns land next to a river or stream and, as such, has certain rights to the useful purposes the river or stream passing through the property may be put. Prior appropriation allows whoever first appropriates the stream for a beneficial purpose the right to continued use and diversion of the water against claimants who may later do the same.

Statutory Law

  • Air pollution - the five main classes of air pollutants, carbon monoxide, nitrogen oxide, sulfur oxide, particulates, and hydrocarbons are a threat to human health. The Clean Air Act (CAA) is the primary body of federal legislation aimed at reducing air pollution. It directs the Environmental Protection Agency (EPA) to establish the National Ambient Air Quality Standards (NAAQS) for pollutants considered harmful to public health and the environment. Each state retains "primary responsibility for assuring air quality" within its boundaries, but must submit a state implementation plan (SIP) to the EPA for approval. The SIP aims at developing and maintaining air quality standards within each state. In the late 1980s, indoor air pollution began to be regulated. The Occupational Safety and Health Act (OSHA) took on the additional responsibility of protecting employees from "occupational diseases caused by breathing air contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors." Noise pollution is considered a form of air pollution and is also regulated by the federal government.
  • Water pollution - the Federal Water Pollution Control Act (FWPCA) was originally passed by Congress in 1948 to "enhance the quality and value of our water resources and to establish a national policy for the prevention, control and abatement of water pollution." It required the EPA to establish limitations of certain toxic substances in water based public health considerations. The primary responsibility to enforce the act was left to the states, but private citizens and the federal government are also authorized to pursue remedies. The FWPCA was amended by the Clean Water Act (CWA) in 1977. It "employs a variety of regulatory and nonregulatory tools to sharply reduce direct pollutant discharges into waterways, finance municipal wastewater treatment facilities, and manage polluted runoff". Another major piece of federal legislation is the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), which prohibits outright any dumping of chemical, biological, or radiological warfare agents into ocean waters.
  • Toxic and hazardous substances - see toxic torts.
  • Pesticide regulation - the sale and distribution of pesticides are governed by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
  • Chemical manufacturing regulation - the Toxic Substance Control Act (TSCA) regulates the manufacture of chemicals on the federal level.
  • Resource Conservation and Recovery Act (RCRA) - this act was passed in1976 in response to increasing public awareness of problems regarding the disposal of hazardous waste.
  • Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) - also known as the Superfund, it was passed in 1980 to clean up hazardous waste disposal sites.
  • Preservation of Wilderness and Wildlife - the National Environmental Policy Act (NEPA) includes provisions requiring the government to ensure "safe, healthful, productive and aesthetically pleasing surroundings." To this purpose, sanctuaries and refuges for wilderness and wildlife have been established. The Endangered Species Act of 1973 also charged the Department of the Interior with protecting animals teetering on the brink of extinction.

Chemical Plant Explosions
Gas and Oil Refinery Explosion

Due to the extent and complexity of environmental laws, a qualified environmental law attorney is an important partner in the successful undertaking of environmental litigation.