Posted on 17 April 2012.
This is a guest post by John Richards who writes for LegalMatch.com and the LegalMatch.com Law Blog. This article is offered for informational purposes only. It is in no way intended to serve as legal advice relevant for your particular situation. The only person who can give you legal advice competently is an attorney who is licensed to practice law in your state, and who has been informed about the relevant facts of your situation. If you would like to write an article, please read How to Become an Author.
“Environmental law,” as a distinct area of legal practice, is a relatively new field, coming into existence, at least in the United States, with the passage of the Clean Air Act in the early 1960s, and the creation of the Environmental Protection Agency in 1970.
Under federal law, and the laws of almost every states, there are a myriad of regulations affecting environmental pollutants, restricting their output, storage, and use. These laws are so numerous that exclusively using government agents and lawyers to enforce them would be cost-prohibitive.
So, in order to aid in the enforcement of these laws, many environmental laws create what’s known as a “private right of action.” Essentially, this allows any private individual or company to sue polluters if they suffer an injury as a result of the polluter’s actions. If they win, the polluters will not only have to cease their polluting activity, but they will also usually be required to pay a substantial sum of money to the plaintiffs (the people bringing the lawsuits). The threat of environmental lawsuits, therefore, provides industries with a strong incentive to obey environmental laws.
This article will provide a basic overview of some of the legal principles affecting environmental issues, and some of the procedure involved in filing a lawsuit for violating these laws. While it is hardly a comprehensive guide, and certainly not a substitute for the advice of an experienced environmental lawyer, it should serve as a good starting point.
Sources of Environmental Law
In the United States, environmental law comes from a wide variety of sources, including statutes, regulations, and common law torts.
The simplest way to attempt to bring a stop to a violation of environmental law doesn’t actually involve filing a lawsuit. If you simply want the polluter you’re concerned about to stop what they’re doing, particularly if you think that it poses a risk to your health, or is damaging your property, you can file a complaint with the Environmental Protection Agency (EPA).
If the complaint has any merit, the EPA will probably, at the very least, investigate the allegations you make in the complaint. If it finds that the entity you’re complaining about is causing severe pollution, it might impose fines, and order the company to stop whatever activity is causing the pollution.
Filing an Environmental Lawsuit in Court
However, if you want to collect money to compensate you for any injuries or losses caused by the defendant’s polluting, you will probably need to bring a lawsuit in civil court, rather than simply filing an administrative complaint with a regulator like the EPA.
In order to do this, it’s essential that you speak with an environmental lawyer, to see if you have a case, and determine the likely outcome of any lawsuit you file.
Environmental lawsuits are often extremely expensive and unimaginably time-consuming – it’s not unheard of for huge environmental lawsuits to drag on for well over a decade. This is the exception, of course, but you can still reasonably expect any environmental lawsuit to be a multi-year time commitment.
For that reason, the best way to obtain relief for harm under environmental law is through a class action lawsuit.
Class Action Lawsuit
A class action lawsuit is a lawsuit brought by a large number of people against a defendant, alleging that the defendant has, though its actions, caused harm of a similar nature to all of the plaintiffs.
For example, if a chemical company polluted a town’s water supply, causing many residents of the town to become ill, the residents of the town could band together and bring a single class action lawsuit against the company. This would obviously be far less complex and costly, for both the plaintiffs and defendants, than if every single resident of the town had to bring their own individual lawsuit.
In a class action, the entire group of plaintiffs is represented by one lawyer, or, more likely, team of lawyers. There will be a few “named plaintiffs” who will take the lead in the case, with every other eligible person joining the class if they want to.
This has the advantage of allowing a large number of injured parties to recover for their injuries or illnesses without being involved in the day-to-day proceedings of the lawsuit, which is likely to take at least a few years to make its way through the court system.
However, class actions do have some disadvantages: unless you are one of the lead plaintiffs, you will have little say in how the lawsuit is conducted, and almost no influence in the overall legal strategy that the plaintiffs will take. Also, while large class action lawsuits sometimes result in huge settlements, in the tens of millions of dollars, often a large percentage of that goes to the attorneys, with the rest being split up among the individual plaintiffs who could number anywhere from the dozens to the thousands. This often leaves individual plaintiffs with little in the way of compensation.
Sometimes, the most effective way to get compensation for an environmental injury is to rely on basic legal principles, like trespass and public nuisance, to sue environmental polluters.
In these cases, the plaintiff is not relying on laws written specifically to protect the environment. Rather, they’re using laws meant to protect property rights. While the goal of a plaintiff in these cases may be to protect the environment, and a favorable judgment could do that, the case will have to be framed in different terms. Essentially, you’d have to allege that a polluter’s conduct is significantly interfering with your ability to use and enjoy your property. This is known as “nuisance.” For example, if smoke from a new factory constantly blows over your land, making it extremely unpleasant and unhealthy to be there, you may be able to sue the factory owners, getting monetary damages, and an injunction (a court order) forcing them to stop their polluting activity.
Alternatively, you could sue for trespass, which is an unlawful physical intrusion onto your property. A victory in a trespass lawsuit would require the defendant to remove whatever object is intruding onto your land.
As you can see, there are several different ways to use the law to protect the environment, and to protect your own rights in the environmental context. This article is hardly a comprehensive guide to seeking redress for environmental injuries, and is by no means a substitute for the advice of a professional environmental lawyer. However, it should serve as a starting point when thinking about these issues.