This Article is written by Vanshikha Mahana ( 4th-year of B.A. LL.B (H) Criminal law student pursuing it from UPES, Dehradun)
The major cause of pollution and other environmental damage is said to be the increased population in the world, and it is clear that all human activities have effects, including negative and harmful, on the environment. It is also clear that environmental problems have changed character over time, or at least discussion of them has. In the 1960s, issues concerning oil casualties and the use of pesticides were on the agenda. During the 1970s, the major cause of damage concern was point sources, i.e. emissions from large industrial plants, and chemicals. During the 1980s, non-point sources, i.e. diffuse emissions from numerous small activities, came into focus. A typical example is car emissions. Transport, agriculture, and trade in products for consumption were major components of the discussion. Further issues attended were the ozone layer and climate together with waste management. Today, the protection of biological diversity and natural resources, as well as remedying contaminated land, are being highlighted. This change of direction could be due to the findings of the 1987 Brundtland Report and progress in ecological economics. Before the Brundtland Report was published the discussion centred on an issue-by-issue approach and environmental threats were thought of as rather distinct. Today, ecology and development are clearly linked to gain “sustainable development”. Environmental issues are to be integrated into all other discussions in line with a ‘multi-media approach, and efforts are made to change consumer behaviour. Restitutive law has also developed. With historical roots in nuisance law and neighbour law, in turn, originating from corpus Juris Civilis, traditional environmental tort law focuses on the protection of privately owned property and values, while contemporary discussion focuses on publicly owned ecological values to be protected and repaired if damage occurs. Thus, one trend is a shift from reparation for damaged private interests to clean-up and restoration of the environment per se as community protection.
This alteration of scope affects the discussion of definitions of damage and liability for remedies. The second generation of definitions tends to be broader and include almost every component of ecology and human value in order to gain flexibility. In like manner, further sources could subsequently be included for the prevention of future damage in accordance with new knowledge. Here lies the fundamental problem, the lack of consensus among scientists as well as the lack of information on adverse effects.
However, definitions could develop equally from increased knowledge and from priorities in combat. With the ambition to expose the legal technique used and its development, a general discussion of legal definitions (1) is followed by a survey of special definitions (2) applicable to the protection of the marine environment and aiming at the protection of air and the atmosphere. Some examples of comprehensive definitions adopted during the past few years will be displayed (3) and the article ends with conclusions (4).
INTERSECTION OF TORT AND ENVIRONMENT LAW
The explosion of environmental statutes over the past forty years, giving rise to the field of environmental law, has created a critical and evolving question in our legal system as to how this comparatively new field of law intersects with the common law of torts. Defining the proper role of tort law in remedying environmental injuries is an important matter of public policy; the answer will determine what the tort system can and cannot achieve, inform what it should and should not achieve, and clarify which common law enforcement areas are actually voids. This information assists the judiciary in its role in addressing alleged injuries to the environment and guides the legislative and executive branches as to whether and when action is required to fashion a legal remedy.
Tort law has historically provided the principal mechanism for remedying harms to the environment. The complexities of many modern environmental harms and the actual or perceived inadequacies of the common law, however, have led policymakers such as Congress to enact wide-ranging laws that provide legal remedies. This Article analyzes how these laws operate in relation to the common law of torts and provides guidelines for judges to determine whether tort law provides a remedy for alleged environmental harm.
Examples of negligence actions with an environmental effect might include physical injuries sustained from exposure to hazardous substances released into the environment, the failure to adequately reduce or warn of such serious risks of injury, or perhaps the failure to promptly remediate acknowledged harm to the environment, for example in the aftermath of an oil spill or a release of toxic chemicals following a train derailment. A shared characteristic of negligence claims in the environmental context, similar to nuisance, is that they routinely involve some form of hazardous release into the environment by readily identifiable parties that causes direct harm to humans or property damage. Not coincidentally, this presents the area in which negligence, nuisance, and other common law tort actions function most effectively to remedy environmental harm.
CASES ON ENVIRONMENTAL TORTS
- State of Rhode Island v. Lead Industries Association
Chief trial counsel for client NL Industries and seven other companies sued by Attorney General of Rhode Island. The AG sought to declare the past sale of lead paint a “public nuisance” throughout the State of Rhode Island. Jury voted 4-2 for the defense when it deadlocked after a two-month trial in August-October 2002. Retrial from October 2005 until February 2006 resulted initially in a deadlock (4-2 for defense) and ultimately a verdict for the State. In July 2008, the Supreme Court of Rhode Island unanimously reversed the trial verdict, requiring complete dismissal of the State’s lawsuit.
- City of Milwaukee v. NL Industries
Represent NL in jury trial to declare lead paint throughout Milwaukee to be a public nuisance and to hold NL liable for costs of the city’s childhood lead poisoning program. NL, the former National Lead Company, was alleged to have been the largest U.S. producer of lead pigment in the 20th century. Complete defense verdict for NL.
- Spring Branch Independent School District v. NL Industries, Inc., et al.
Represented NL in a suit brought by the Spring Branch School District in Houston, Texas. This was the first of several suits brought by school districts in Texas seeking recovery of costs in replacing surfaces coated with lead-based paint. Bartlit Beck prepared a successful motion for summary judgment regarding product identification and causation. The Texas intermediate appellate court affirmed summary judgment. Following this summary judgment victory, the school districts in all of the remaining cases in Texas voluntarily dismissed their cases.
- Thomas v. Atlantic Richfield, NL Industries, et al.
Represented NL, and acted as lead counsel for all defendants on issues of history and science, in jury trial seeking damages for a young man’s alleged brain damage from eating lead paint as a child. Plaintiff alleged negligent failure to warn of lead paint hazards throughout the period 1900-1970. Complete defense verdict for NL and co-defendants.
- Wagner v. NL Industries
Class action on behalf of 7,500 neighborhood residents seeking several hundred million dollars in personal injury and property damages due to emissions of lead from factory over a thirty-five year period. Represented defendant NL Industries. Jury verdict for NL on all issues following ten-week trial.
- Plunkett v. Merck:
Represented Merck in first federal Vioxx trial since Merck withdrew Vioxx from the market. Plaintiff alleged Vioxx caused decedent’s heart attack and death. Two week jury trial in New Orleans Federal Court (MDL) resulted in unanimous jury verdict for Merck.
ROLES OF ENVIRONMENTAL LAWS IN FUTURE
The vast majority of American history saw tort law as the primary mechanism for righting environmental wrongs. Simply put, a victim who suffered harm due to a tortfeasor’s actions (including the doctrine of trespass and nuisance), inactions (negligence), or engaging in “abnormally dangerous activities” (strict liability) brought a civil suit that would potentially result in damages awarded to the victim, or injunctions to the defendant to cease its harmful activity. However, an increasing desire to preserve the environment in the 1970’s resulted in an exponential increase in federal environmental regulation. The many environmental laws promulgated in the 1970’s included the creation of the Environmental Protection Agency and a “Superfund” (created through the Comprehensive Environmental Response, Compensation, and Liability Act of 1980), a regulation that creates a tort-like action, to provide “liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.” In the event of prospective deregulation of key environmental regulations by the new presidential administration, environmental torts and tort-like legislation such as CERCLA may have to pick up the slack in protecting environmental interests.
The key difference between environmental regulation and environmental torts is that regulation is perpetuated to protect general public health, while torts are brought in order to rectify damages caused to individual human beings. However, harms to the environment can obviously also affect individuals. A perfect example of why environmental torts remain necessary is that of residual risk. For example, if a group of individuals in a certain community were harmed by toxic substances that were present for a number of years before the regulation regime was in place. These individuals would be able to correct a wrong through the tort system that the regulation regime, including CERCLA, “which purposely avoids providing compensation for victims and affected property owners” would be unable to fix. Unlike torts, CERCLA focuses, not on making the individual whole, but on who must fund cleanup (not necessarily who is most responsible for damages caused to victims)
One consistent prevailing theory consolidating the two is that whatever environmental regulation “misses” (in the form of lacking a regulation in a certain area) environmental torts can “fill the gaps” and offer a remedy. Put simply, regulatory laws in place simply cannot regulate all possible environmental harms, and where it cannot, civil tort action can provide a means of relief. Congress itself has recognized the necessity of pairing regulation with tort-like actions to rectify environmental wrongs, as CERCLA “imposes retroactive, strict, and joint and several liability for the cost of clean-up at sites to which the statute applies, on past and present owners of such a site, on parties who transported material to a site, and on parties who generated material deposited at a site,” Though the government is typically the plaintiff in CERCLA cases, there are instances in which private plaintiffs are entitled to cost recovery for clean ups.
The new administration has embarked on a path of significant regulatory rollback, with President Trump signing an Executive Order stipulating that agencies should “eliminate at least two regulations for each new one” in the hopes of fueling economic growth The order itself has been the cause of much criticism by environmentalists, who fear that it will result in significant rollback of environmental protections and possibly endanger public health. Such fears were also present during the first term of the Bush administration. Regardless of the effect of President Trump’s order, whose potential effects remain speculative at the moment, environmental torts have historically, and will unquestionably continue, to remain a viable course of action in protecting both the environment and the public. However, just because environmental torts will remain a viable course of action for rectifying some harms, does not mean that they would be nearly as effective as regulation, whose scope is much vaster, in protecting environmental interests. Should environmental regulation and enforcement indeed be rolled back, environmental torts will likely play an increased role in filling at least some of the gaps that would be created by deregulation. The burning question is how just significant the deregulation may be.
REMEDIES UNDER LAW OF TORTS FOR ENVIRONMENTAL POLLUTION
The courts’ tendency to balance hardships and deny injunctions and lack of “standing” to sue are factors which make the nuisance law inadequate to control widespread pollution. In private actions on public nuisance, “special injury” is to be proved if the action is to succeed. The “special injury” suffered by the plaintiff must be different in kind from that suffered by the general public and not just different only in degree. If the eiurts insist on this, the nuisance action by private individuals against pollution, against air pollution in particular, will be less effective. Still another difficulty is the burden of proving material harm attributable to unreasonable conduct of the defendant since it is impossible to point out any particular polluter responsible for the poor air or water quality. •
The common law action of trespass is not suited to deal with the general issues or questions of environmental degradation in view of the fact that it requires some direct physical interference by one against the person or property of another. Environmental degradation tends, generally, to be indirect in its nature and effect. Persons aggrieved by it may find it difficult to establish a successful legal action for trespass. The requirement tbat an aggrieved party has to prove that there is a causal connection between the negligent act and the plaintiff’s injury makes it extremely difficult for the plaintiff to succeed in an action for negligence. The degree of reasonable care depends on various factors taken into consideration by the courts in deciding the matter. Moreover the standard of care is seriously affected not only by the state of scientific knowledge as to the causes and effects of air and water pollution but, also by the state of technology and the extent to which prevailing pollution control devices’ are effective economically and feasible.
The Rylands rule has a more restricted application than those rules applied in nuisance cases. To invoke the Rylands rule there must be an accumulation of pollutants and it must be of a nuisance, likely to cause injury if it escapes. The problem to be resolved in pollution cases is however different. The problem is to control or prevent pollution, rather than to decide the liability of the wrong doer. Insurance against abnormally dangerous harm may be a proper remedy in deciding the question of liability. Considering the pollution problem in its totality, interests of the public may considerably overshadow the interests 114 COCHIN UNIVERSITY LAW REVIEW of the parties concerned. When such a situation occurs, a sound pollution control programme is called for. This requires that the public point of view be searched out and decisions be taken in the light the social policy. The inherent inability of courts to deal efficiently with issues of a scientifically complex nature is another problem.
In environmental degradation situations, often a considerable time elapses before symptoms of disease caused from pollution become manifest. The chemical, biological, physiological and other scientific evidence required to prove the causal connection between the alleged discharge of pollutants and the harm caused to the plaintiff is often highly technical. It may be impossible for even the most alert judge to assimilate and evaluate them. There are other difficulties like high costs of litigation, limited administrative capabilities etc. which make judiciary an unfit organ to provide adequate remedies.
The policy adopted by the government also has an important role to control or prevent environmental pollution. There should be insistence on observance of uniform methods of pollution control methods by all persons engaged in one industry. Selective approach may not be successful for the reason that cost of production incurred by an industry is connected with the method of pollution control adopted which ultimately affects the price of the product. It is suggested to create expert bodies and entrust them with the task of ensuring protection and development of environment. They may be urged to hold public hearing while settling standards and drafting plans for implementation.
In addition to these expert bodies, special courts should be created to deal with common law action against environmental pollution. The success of the endeavour against pollution depends mainly on the civic consciousness of the people and on the recognition of good environment and ecological balance in nature.
- THE ENVIRONMENTAL LAW IN INDIA BY P. LEELAKRISHNAN
- RATANLAL AND DHIRAJLAL – THE LAW OF TORTS