Litigation, Environmental

History

Everyone lives in some kind of environment, whether natural or man-made. Whatever affects the environment can affect the personal health, social practices, or economic health of a community. The governmental actors, and especially the courts, have recognized this for centuries with health ordinances controlling sanitation practices in many forms. What is new is the explosion in environmental litigation.

Prior to the 1970s most environmental suits were filed on the basis of the common law or on earlier judicial decisions in specific cases. If a party in a suit claimed that an injury had occurred, then tort law allowed them to have cause for action. Cases were based on negligence to stop environmentally destructive practices, nuisances, trespasses, or acts for which a party is strictly liable. Other actions sought recovery of damages as compensation for environmental injuries.

Tort-based environmental litigation was often difficult to initiate because it was often hard to prove who caused an environmental injury. In addition, courts tend to favor property rights and were [Page 1054]reluctant to restrain business activities with injunctions to prevent future environmental degradation.

Post-1970 ERA

While these earlier remedies for environmental torts are still available, since the 1970s the federal and state governments have passed comprehensive sets of environmental laws. These laws were designed as wholesale remedies for environmental problems. They were eventually followed by amendments that focused on manageable parts of environmental pollution problems.

Today the federal environmental policy program includes broad policy statutes, conservation statutes, and public health statutes. The broadest federal statute is the National Environmental Policy Act, which mandates that the federal government assess the environmental impact of its projects before they are begun. The conservation policy statutes include the Endangered Species Act, the National Forest Management Act, and the Wilderness Act. The latter two acts mandate how the nation's forests are to be managed. Congress has adopted a wide array of laws to protect the public's health. These include the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and other laws.

These federal laws, along with a growing number of state laws, have been used by both the federal and state governments as the basis of environmental litigation. In addition because some of these allow standing, or standing has been sought by environmental groups, the volume of environmental suits has grown enormously since the 1970s. So large and serious has the judicial business of environmental litigation grown that there are now law firms that specialize in environmental litigation as champions of plaintiffs or as counselors for environmental defendants.

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