Ch.3 - Courts in Environmental Law

Summary

• List and describe the 6 common law causes of action

  • Trespass, nuisance, strict liability, negligence, public trust doctrine, and fraud

• Describe environmental examples of these common law causes of action

  • To list a few (there are many mentioned already), trespass (LUST plumes crossing property lines); nuisance (odors from animal farms); strict liability (release of nerve gas); negligence (improper hazardous waste disposal); public trust doctrine (tragedy of the commons); fraud (VW lying about emissions)

• Case studies operationalizing common law concepts

  • Be comfortable in recognizing various common law causes of action and discussing these case studies

Summary (cont.)

• Define and describe citizen suits and SLAPP

  • Citizen suits 🡪 citizens sue government for failing to uphold environmental law; or when they sue a corporation for violation of environmental law

  • SLAPP 🡪 Strategic Lawsuit Against Public Participation; suing an individual or entity to silence an opponent

• Define sovereign immunity and FTCA

  • Sovereign immunity 🡪 government can’t be sued unless they say they can. 

  • Federal Tort Claims Act 🡪 makes it so government can be sued unless negligence is needed for “discretion”

• Understand some of the tools available in environmental litigation

  • Electronic tools available to help document management; support staff to help; computer forensics

Common Laws of Action

6 commonly applied claims against those responsible for environmental contamination aka actions by defendant that result in environmental contaminants

• Trespass

• Nuisance

• Strict liability

• Negligence

• Public trust doctrine

• Fraud

Trespass

To enter or cause entry on to property of another

• Common law of action

Examples of Trespass

• Dry cleaner spills chemicals that eventually crosses property lines (surficial or subsurface)

• Gas station underground storage tanks leak into aquifers and crosses property lines

• Septic system plume crosses property lines and contaminates neighboring private drinking well

Nuisance

The unreasonable, unwarranted, and/or unlawful use of property, which causes inconvenience or damage to others, either individuals or the general public.

• Common law of action

Examples of Nuisance

• Quarry operation causes noise pollution that disturbs neighbors

• Odors and aerosols from concentrated animal feeding operations degrading air quality.

Strict Liability

Automatic responsibility, without having to prove negligence, for damages due to possession and/or use of equipment, materials or possessions that are inherently dangerous (e.g., explosives, wild animals, venomous snakes, assault weapons, etc.

• common example: beware of dog

• Typically doesn’t result in criminal law cases

• Common law of action

Examples of Strict Liability

• Air emissions from industrial operations (e.g., ore melting furnaces)

• Construction of a dam that diverts water from downstream communities.

Generally, strict liability is an issue when ________.

it pertains to a defective product

• A woman sued the company claiming that the cigarettes they produced caused her lung cancer and long-term addiction. The company was initially ordered to pay $28b and $850k in compensations. It later dropped to $28m, still sizeable.

• Smedleys v Breed: 1 tin of peas (out of millions) contained a caterpillar; despite taking all reasonable care they were convicted for violating the Food and Drugs Act of 1955

Negligance

Failure to prevent harm to others

• common example: a parent or childcare giver neglecting the child

• Common law of action

Examples of Negligance

• Dumping untreated waste into a stream or landfill.

Public Trust Doctrine

The principle that certain natural and cultural resources are preserved for public use, and that the government owns and must protect and maintain these resources for the public’s use.

• These resources belong to all and should be protected, e.g. fish/wildlife, navigable waters, National parks, etc.

• Common law of action

Examples of Public Trust Doctrine

• Public access to safe and clean beaches

Fraud

Deception for financial gain aka lying to make money

• common example: credit card fraud

• Common law of action

Examples of Fraud

• Princess Cruise Lines Ltd.

  • Illegally dumped oil-contaminated waste and falsified logs to conceal discharges. They had to pay $40m. This is the largest ever penalty for deliberate vessel pollution.

• Volkswagen AG

  • Plead guilty to 3 criminal felonies and fined $2.8b in a long-running scheme to sell ~590,000 diesel vehicles in the US via defeat device to cheat emissions tests mandated by the EPA and CA Air Resour. Board. They also lied and obstructed justice to further the scheme. In a separate civil resolutions of environmental, customs and financial claims, VW also agreed to pay $1.5 billion for a total payout of $4.3 billion in criminal and civil penalties.

• Wood Group PSN Inc.

  • Falsely reported that personnel had performed safety inspections on offshore facilities in the Gulf of Mexico for several years. They were ordered to pay $7m for false reports; $1.8m for negligently discharging oil into the Gulf and violating CWA after an explosion; and $700k for community service projects in areas where criminal conduct occurred

• XIK, LLC

  • XIK, Honeywell Int. Inc., and Domtar Inc. agreed to pay $8.2m to resolve claims for natural resource damages at the St. Louis River/Interlake/Duluth Tar Superfund Site brought under CERCLA. The polluted site consists of 255 ac of land and river embayments located primarily in Duluth, MN, and extends into the St. Louis River.

Case Study:

• 1947 🡪 Farmer Todd started a pile on his land where he buried non-burnable garbage such as insecticide, paint thinner, antifreeze, etc. Through time, chemicals seeped from the illegal landfill into the surficial aquifer.

• 2007 🡪 Neighbors discovered that their wells were contaminated and traced to Todd’s illegal landfill.

1. Common laws of action associated: Trespass and negligence

2. Some states would consider that contamination would be considered continual trespass and/or negligence and the limitation period would not matter.

3. Other federal regulations such as the RCRA may be applied, depending on the situation. Thus it could be deemed that the illegal landfill violates standards for storage and disposal of hazardous waste.

Case Study:

• Multiple individuals that share a limited resource will eventually drive that resource into depletion, even if it’s clear the best interest is to conserve the resource.

  • Property everyone owns, nobody owns (e.g., overharvesting a resource). 

  • Ex: Grazing areas (no one owns it) → competition to graze the most land aka overgrazing from livestock

Common laws of action associated: Public Trust Doctrine

Case Study:

• Acme has a contract to destroy nerve gas in storage at a weapons plant

• During disposal, some nerve gas escapes due to weather conditions and people in an adjacent neighborhood are harmed.

• Acme can document excellence in safety and use state-of-the-art equipment and a record of excellence in training personnel.

1. Common Laws of action associated: Strict liability; possible for trespassing & negligence(?)

2. It could go either way; but most likely, it’d probably be a civil case if it were to go to trial. 

3. Furthermore, if they have insurance, then they may not be held at fault, although they still could be held liable.

Businesses that deal with potential contaminants can _______.

protect themselves from common law claims by obtaining environmental insurance

Types of Lawsuits

• Citizens’ Suits/Private Attorney General Actions

• SLAPP: Strategic Lawsuit Against Public Participation

SLAPP: Strategic Lawsuit Against Public Participation

The primary goal of a corporate plaintiff is to stifle or silence a person or a group’s challenges to the corporation’s actions or plans.

• type of lawsuit

Citizens’ Suits/Private Attorney General Actions

Private citizens sue to enforce environmental laws

• type of lawsuit

Every environmental law (except FIFRA) has a ______.

Citizen suit provision

A citizen suit provision allows citizens to ______.

1. Sue EPA for failing to fulfill a duty regarding an environmental issue.

• Ex: Court slams the EPA for failing to protect children and farmworkers against pesticides.

OR

2. Sue any public or private entity that is in violation of an environmental statute

• Ex: NJ DEP seeking court order to remediate LUSTs releasing benzene, tertiary butyl alcohol, and methyl tertiary-butyl ether into the GW.

Sovereign Immunity

Government cannot be sued without its consent

Federal Tort Claims Act

Act that gave the Government its consent to be sued

In negligence cases for sovereign immunity, only ________.

“Ministerial obligations” (routine administrative tasks that require strict adherence to instructions) are considered “fair game”.

• If “discretion” is needed, then negligence cannot be cited.

• Discretion is defined as “wiggle” room where the law is not “black and white”

Environmental lawsuits are notorious for _______.

generating large numbers of documents.

Metadata

Data that describe the data that you’re using or viewing.

• Important for investigation (e-discovery)

• Assisting in Environ. litigation

Electronically stored information

Storing information electronically can aid in file management (e.g., easier to store several TBs of documents than finding physical space for thousands of reports).

• Assisting in Environ. litigation

Litigation Support

• Staff hired to assist attorneys in managing large-scale litigations. They design and implement databases that are used for accessing the above information.

• Some are hybrid paralegal/IT professionals.

• Assisting in Environ. litigation

Computer Forensics

• Finding deleted documents

• Determine who had access to information and when

• Assisting in Environ. litigation

Assisting in Environmental Litigation

1. Electronically stored information

2. Litigation support

3. Computer forensics

4. Metadata