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Environmental Law

There are a number of different state and federal environmental laws that have been enacted through legislative action, as well as governmental agency actions. Congress has authorized many federal agencies, including the United States Environmental Protection Agency, to inspect environmental issues and enforce federal environmental regulations and laws.

Environmental law specifically refers to the body of local, state, national, and international laws and regulations governing:

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

Previously, environmental laws were largely based on nuisance principles. An example of this would be regulations addressing obnoxious smells coming from contaminated land or water. Currently, environmental laws and regulations as the environmental policy of the United States are intended to protect the environment and preserve it for the future, without “undue interference in business and commerce.”

According to U.S. law, regulations and inducements are used to carry out this policy. Inducements are motivations, either positive or negative, intended to influence people and groups of people in carrying out environmental policy.

Most Significant Environmental Laws

In addition to laws specifically associated with the environment, there are other laws that, while not specifically about the environment, have an impact on it. Some examples of such laws include:

  • The Clean Air Act: The Clean Air Act (“CAA”) is a federal law regulating air emissions from stationary and mobile sources. This law authorizes the EPA to establish National Ambient Air Quality Standards (“NAAQS”) in order to protect public health and public welfare, as well as to regulate emissions of hazardous air pollutants;
  • The Clean Water Act: The Clean Water Act (“CWA”) regulates discharges of pollutants into the waters of the United States, as well as quality standards for surface waters. The foundation of the CWA was enacted in 1948, called the Federal Water Pollution Control Act; the Act was significantly reorganized and expanded in 1972. Under the CWA, the EPA has implemented pollution control programs including setting wastewater standards for industry, and developing national water quality criteria recommendations for pollutants in surface waters; and
  • CERCLA (Superfund-Cleanup of Contaminated Sites): A superfund site is any land in the United States that has been contaminated with such a considerable amount of waste and pollution, that the EPA has ordered the land to be cleaned as it poses a risk to human health. The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the Superfund Amendments and Reauthorization Act (“SARA”) give the EPA the power to assess the amount of danger that a piece of land poses to people's health. They may also put it on a National Priorities List for clean-up, and set up a short-term or long-term cleaning project.

Other examples of significant environmental laws include:

  • Endangered Species Act;
  • Energy Policy Act of 2005;
  • Federal Land Policy and Management Act;
  • Food Quality Protection Act;
  • National Environmental Policy Act;
  • National Forest Management Act;
  • Nuclear Waste Policy Act;
  • Ocean Dumping Act;
  • Oil Pollution Act; and
  • Safe Drinking Water Act.

While there are many other laws affecting the environment, those listed show what environmental law is intended to protect:

  • The land;
  • Water;
  • Animals;
  • Forests; and
  • Things that people consume.

In addition to federal laws, environmental laws are enacted at the state and local level. An example of this would be how most states also have their own environmental regulatory agencies, and agencies for regulating natural resources.

Most Significant Environmental Regulations

Regulations are rules made by government agencies which affect the way we address environmental policy. The most prominent environmental regulations would be those of the Environmental Protection Agency (“EPA”).

The EPA is authorized by Congress to write regulations, in cooperation with the laws, which help to outline details and procedures that could be absent from the laws themselves. A variety of other agencies are responsible for regulating specific activities. An example of this would be how the United States Forest Service oversees matters relating to national forests.

Environmental laws are intended to regulate the many aspects of business and public use. The definitive concerns of environmental law include:

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

While many of the above largely address businesses, issues associated with hunting and fishing are meant for the consumer. However, they can also impact businesses if they wish to dam a body of water which would impact fish migration, or build on conservation or hunting lands.

Environmental Violations and Environmental Contamination

Environmental violations are activities or conditions which fail to comply with environmental laws and/or regulations. Some 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.

Some activities that constitute environmental emergencies include oil and chemical spills. Environmental contamination refers to the introduction of toxic substances into an environment, or chemicals or wastes in a quantity that damages the environment and renders it unsuitable for its next intended purpose.

It is important to note that this can include contamination that is not generally toxic, such as salt. An example of this would be how salt has been poured into a person's property, essentially rendering it useless for farming. The salt is not removable, and can last for hundreds of years. As such, the contamination is so great that it is impossible to recover, which renders it unusable.

Contaminated property or sites are lands that have been contaminated by any environmental violations. Examples 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 attempts to track contaminated sites across the United States, as well as oversee the cleanup of the sites.

Environmental violations are civil in nature, meaning that they are enforced through lawsuits in civil court, and not criminal court. Penalties for environmental violations are generally monetary in nature, and particularly extreme violations may result in criminal penalties.

Violations of environmental law are also enforced by various agencies, and these agencies may hold administrative hearings in order to decide on matters of environmental violations. You should be prepared to present evidence and environmental reports, as generally required by the EPA or local government. If you are found guilty of contamination and/or violations, you should also be prepared to begin the clean-up process.

It is important to note that trying to further hide these violations will only result in more serious consequences and criminal penalties.

What Rights Do Victims of Violations of Environmental Harm Have?

Government agencies are in charge of preventing people from being harmed by violations of environmental law. However, it is not uncommon for actions of others to harm the environment and the property of someone else without violating any laws. If there is no law being broken, the government is generally powerless to stop the action, even if it is environmentally harmful.

If the Government Cannot Do Anything, What Can Private Citizens Do?

Just because the government is powerless does not mean there is nothing that can be done. There are a number of actions an individual can take to stop someone else from harming their land, including:

  • Private nuisance: Generally, this type of lawsuit can be brought when there is an interference with the use and enjoyment of one's land. For example, a company near Dave's home produces dust for months. The dust ends up on Dave's front lawn and keeps Dave from opening his windows. Dave calls the local authorities, who report that the company is in compliance with all local air quality laws. However, even though the company has not violated any laws, Dave can probably sue the company in a private nuisance action.
  • Public nuisance: This type of lawsuit can be brought when there is an interference with the common right of the general public. For example, a toxic plant pollutes the air over an entire city. Daisy is a resident in that city, and she can bring a public nuisance lawsuit, even if the toxic plant is in compliance with environmental laws.
  • Citizen suits: Many environmental laws have specific provisions that allow citizens to file lawsuits. However, before a suit can be filed, a violation of an environmental law must occur. For example, a factory violates the Clean Water Act by spilling chemicals into a river. As a citizen who lives downstream, you can bring a citizen suit to address their violations.
  • Public participation: speak up!  If you and your community get involved and make your voices heard, it can have a great impact on getting what you want.

Suing for Environmental Harm

Civil law remedies have been successfully applied to numerous types of environmental harms. The four traditional types of environmental civil suits are trespass, nuisance, negligence, and strict liability.

1) Trespass

Trespass is defined as a physical invasion of an owner's property that interferes with the owner's right to exclusive possession. Trespass claims typically involve invasion by a person, but can involve invasion by an object as well. In environmental cases, courts have found defendants liable for trespass when they have allowed polluting materials – such as ash, sewage, or garbage – to enter other people's property.

Potential legal remedies for environmental trespass include an injunction, to stop the trespass from continuing, and, if applicable, monetary damages, either for the decrease in market value of the property or to cover cleanup costs.

2) Nuisance

Nuisance is defined as unreasonable use of property in a way that prevents others from enjoying their own property. Examples include noxious odors, loud noises, smoke, dust, and vibrations. Nuisance differs from trespass in that it requires two or more parcels of land: the property causing the nuisance, and the property (or properties) affected. In addition, unlike trespass, nuisance does not require a physical invasion; interference with enjoyment is enough for a nuisance claim.

The typical remedy for nuisance is an injunction. Before the defendant can resume use of his land, he will have to modify his activities so that they no longer harm neighboring property owners. However, in some cases, courts have decided to waive the injunction remedy and instead issue a damages award covering the plaintiff's total economic loss resulting from the nuisance.

If curbing environmental harm is the goal of the litigation, an injunction is the better remedy. An injunction acts as an incentive for the defendant to find a less harmful way of using his land. A damages award merely permits the defendant to harm the environment (and the plaintiff) for a fee.

3) Negligence

Negligence is a very common civil claim, used to remedy a wide variety of personal and proprietary injuries. Negligence is the failure to exercise reasonable care to prevent foreseeable risk to others, and recovery is available when that failure causes another person physical or economic injury. Environmental negligence cases typically involve the defendant unintentionally discharging pollutants into the environment.

Unlike trespass and nuisance, which require some knowledge or intent on the part of the defendant, a negligence claim is available for accidental harm, provided the harm was foreseeable and the defendant acted carelessly. Additionally, negligence is not limited to crimes against property and covers personal injuries as well. A negligence claim need not involve a parcel of land at all.

Environmental laws can also come into play in negligence cases. If the defendant's conduct violated some code, regulation, or statute intended to protect against the type of harm the defendant ended up causing, the defendant's conduct will be considered negligence per se and the plaintiff will not have to show anything more to prove the defendant violated his duty to exercise reasonable care.

The legal remedy for negligence is damages. Damages can cover reduction in property value, cleanup costs, or compensate for a personal injury.

4) Strict Liability

Strict liability involves abnormally dangerous activities that have been allowed to continue as a matter of public policy because they are advantageous, but the law requires those who profit from the activity to bear responsibility for any harm it causes. Basically, those who engage in abnormally dangerous activities are always liable for any resulting harm.

An abnormally dangerous activity is an activity that is inherently risky; even when everyone involved exercises reasonable care there is no way to make the activity completely safe. Examples include activities that involve toxic substances, demolition or blasting activities, storing explosives, and radioactive emissions.

Statutes Can Create Additional Causes of Action

In addition to these traditional types of civil suits, new environmental laws can also create new rights for certain citizens and, if those rights are violated, new causes of action. One example is the Resource Conservation and Recovery Act (RCRA), which permits individuals to sue for injunctive relief when an entity is dealing with hazardous waste in a way that threatens human health and the environment. Another example is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which allows those who incur costs cleaning up environmental contamination to sue the responsible parties for reimbursement.

Other Environmental Claims

Other environmental law claims include:

  • Public nuisance: Involves interference with the enjoyment of a public right such as a park, beach, or waterway. Because the damage is common to the public at large the only individuals with standing to sue are government officials or individuals who have experienced special harm above and beyond what the public at large experiences.
  • Riparian rights: Riparian owners have a right to enjoy the watercourse free from substantial interference and can sue for acts that diminish the water's quantity or quality.

Other Options

Perhaps the best way to challenge a type of environmental harm is through invalidating an local zoning ordinance or governmental order. If the government or any one of its laws is involved, there may even be the potential for legal action under the Takings Clause. These options are more difficult and complex than a simple civil suit

How Can An Attorney Help Me With My Environmental Claim?

Environmental law is a complex and murky field. Courts don't allow claims to move forward if they feel the alleged injury is too general or speculative. An experienced government lawyer can help you make the best arguments and maximize your chances of recovering on your claim. 

For the most part, environmental violations are civil in nature, meaning that they are enforced via lawsuits in civil court, not criminal court. The primary penalties for environmental violations are monetary in nature. Fines can be extremely high in the case of large violations, and particularly extreme violations may lead to criminal penalties. Violations of environmental law are also enforced by agencies, and agencies may hold administrative hearings to decide on matters of environmental violations. 

You should be prepared to gather your evidence and environmental reports, as typically required by the EPA or local government. If you are guilty of contamination/violations, then be prepared to begin the clean-up process. Trying to further hide the violations will only result in more serious consequences and criminal penalties. Whether you are a concerned citizen or a business who is seeking advice on an environmental issue, you should consult with an environmental government lawyer who can help you achieve your objectives.

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