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Environmental Law Under the Common Law - Module 1 of 5

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Module 1: Environmental Law Under the Common Law

While major environmental laws are a relatively recent phenomenon in American history, dating back only to 1963, there were ways in which the environment could be protected and environmental damage remedied under tort law and other principles of law predating the passage of the Clean Air Act, Clean Water Act and other major environmental legislation. In our opening module, we will discuss how common law protects the environment in ways that don’t depend on these landmark laws. In the remaining modules, we’ll look more at federal regulation and the effects of federal environmental legislation.

We will begin by discussing the reasons that many plaintiffs prefer to pursue environmental torts under the common law rather than statutory causes of action. Next, we’ll discuss the possibilities of preventing or remedying environmental harm using trespass, private nuisance, public nuisance and strict liability torts. The module closes with a discussion of the lengths that some polluters go to in order to avoid common law liability by engaging in Strategic Lawsuits Against Public Participation, or “SLAPP” suits.

Benefits of Common Law Environmental Actions

There are myriads of state and federal laws directly regulating environmental pollution. American jurisprudence includes thousands of pages of laws designed to protect our land, air, and water. But there are still reasons that plaintiffs may prefer to bring civil actions under the common law rather than pursuing statutory remedies under federal environmental legislation.

One benefit to bringing environmental actions under the common law is that it can be particularly effective in cases of localized pollution. Damages awarded in common law suits are paid directly to the plaintiffs. When environmental releases damage specific, localized communities, common law actions are often the best way that private plaintiffs can be made whole. This is one reason why, for example, the largest awards for damages in the infamous Exxon-Valdez oil spill went to plaintiffs in common law claims. Altogether, private plaintiffs in common law actions were awarded over $300 million in compensation[1] Actions brought under federal environmental legislation, on the other hand, may instead result in fines or other damages paid to the government or public.

Sometimes, plaintiffs turn to the common law as a matter of necessity rather than preference. While there are several environmental statutes designed to address various forms of pollution, statutory law is highly specific and circumstantial. Plaintiffs may be harmed by environmental contamination that falls into an exception or exemption under statutory law. Rather than let these cases fall through the cracks, the common law offers an opportunity for remedy.

Common law doctrines also provide an important basis for building effective policy over time. Due to doctrines that afford case decisions precedential value and thus judicial consistency, causes of action are slow to change over time. Consistency in the application of environmental law is essential and aids in the development of new environmental laws and policies.

Civil actions brought under the common law offer several benefits, but they are not accessible to everyone who may have potentially been harmed by an environmental release. A plaintiff must provide evidence sufficient to show that the defendant’s wrongful action caused actual and foreseeable harm to the plaintiff and must prove that she suffered legally-recognized damages because of the defendant’s wrongful action. These limitations have prevented many plaintiffs in environmental actions from being able to recover, but they also provide important limitations on the type and nature of lawsuits that are eligible for review in judicial courts.

Native Village Kivalina v. Exxon Mobile Corp. is a recent environmental case that highlights issues faced by environmental law plaintiffs in environmental actions in the common law.[2] This case involved an action for monetary damages brought by the residents of a native Alaskan village affected by climate change who alleged that the defendant oil companies were contributing to global climate change. The Court dismissed the claim, finding that the plaintiffs’ case could not be brought under common law theories because the field of clean air and what is prohibited air pollution is covered by the Clean Air Act, leaving no room for common law actions on that subject. Some experts have called the ruling in the Kivalina case “the end of climate change tort litigation.”[3] Still, it is important to look at possible common law remedies in environmental cases.

Trespass Based on Environmental Contamination

            Some of the most significant environmental torts under the common law are brought based on theories of trespass. The elements that make up a civil claim for trespass can vary, but its origins are in the common law. Under the Second Restatement of Torts, a uniform guideline on common law causes of action, trespass means entering land possessed by another person or causing a third party to do so. If the person or object remains on the land despite the culprit’s duty to remove it, there is a trespass under the common law.[4]

            Trespass is a useful environmental tort because civil claims can be based on the unlawful intrusion of objects onto a person’s land. Historically, courts have recognized that environmental pollution can qualify as trespassing. These include small amounts of matter that migrate onto a plaintiff’s land, such as gasoline that leaks from underground storage tanks on neighboring properties or small lead deposits emitted from nearby factories.[5] If a defendant allows a physical contaminant to escape from her control and enter onto another’s land, she may be liable for trespass under the common law.

Still, it’s important to note that contaminants are physical matter. Things like radiation, noise and vibrations can be harmful or damaging to human health and the natural environment, but since they do not qualify as physical objects, they can’t form the basis for a trespass action. In these cases, plaintiffs may seek relief through private or public nuisance actions instead.

Public and Private Nuisance

            Public and private nuisance law strikes a balance between property owners’ rights to use and enjoy their property and other people’s rights to engage in lawful activities. Some view the development of nuisance law as an early form of land use planning, since it regulates what activities are allowed in which areas.[6] By preventing disruptive or unhealthy activities in certain areas, both public and private nuisance actions are effective tools for combating environmental pollution.  

            Despite how similar they sound, public nuisance and private nuisance are very different actions. Public nuisance actions arise when a defendant’s activity unreasonably interferes with the use of public property. For example, if a defendant causes a tree to fall and block a public road, he may be liable for a public nuisance.[7] State or local agencies are typically the plaintiffs in public nuisance actions, since they are the ones entitled to represent the public interest in court.

New York v. Schenectady Chemical Company applied public nuisance theories to create liability for pollution.[8] There, the state brought a civil action for public nuisance against a private company that hired an independent contractor who dumped polluting chemicals into ground water resources. New York pursued the case “in its role as guardian of the environment.”[9] The court found that the defendant’s improper disposal of its dangerous wastes constituted a public nuisance, as the company’s actions unreasonably endangered the public health and welfare.

Private nuisance claims protect individual property rights. In a private nuisance action, a defendant is liable if he intentionally and unreasonably invades the use of the plaintiff’s land. A defendant’s interference is determined to be unreasonable based on the harm it creates and based on whether the actions produce more harm than good.[10]

Private nuisance actions complement trespass actions because they account for activity that interferes with the use of the plaintiff’s land without physically touching it. For example, the landmark case of Boomer v. Atlantic Cement Company found that a cement company created a private nuisance for nearby landowners due to the noise and vibrations it created.[11] Because the cement company’s activities were intentional and unreasonable, it was legally liable for the damage the disruptions caused to adjoining landowners.

The Boomer court found the defendant’s activities to be a private nuisance but denied the plaintiff’s request to enjoin the defendant from continuing its business. Instead, it determined that the proper remedy was to require the cement company to compensate affected landowners. The Boomer court struck a balance between the cement company’s lawful but disruptive activities and the neighboring landowners’ ability to use and enjoy their properties.   

Strict Liability for Environmental Releases

In some cases, people are liable for their actions even without any fault, negligence or intentionally wrongful conduct. Where applied, that the defendant caused the harm is enough to establish liability.[12] While most types of actions require fault, strict liability is typically applied where a person harbors wild or dangerous animals[13] or engages in abnormally dangerous activities.

Activities are abnormally dangerous if they create a foreseeable and highly significant risk of physical harm regardless of safety precautions.[14] For example, if an amateur scientist were to experiment with radioactive materials in his garage, this would most likely qualify as an abnormally dangerous activity subject to strict liability if his experiments cause any damage.

Engaging in these activities assumes the risk of any resulting harm, regardless of fault. Strict liability is also imposed where manufacturing defects in mass-produced products cause injuries.

Statutes have been developed that apply strict liability to various types of environmental releases, but strict liability for various categories of activities, including pollution, has its roots in the common law. One of the seminal cases establishing strict liability for environmental pollution was Rylands v. Fletcher, which involved improperly stored coal debris contaminating a nearby mine. That case established the precedent for strict liability applied to environmental releases that is still relevant today. It held that "the person who brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it in at his peril."[15]

The case of Branch v. Western Petroleum Inc. provides a prime example of how strict liability theories can apply to environmental pollution.[16] In Branch, the defendant company disposed of contaminated water in underground wells, but because the geology in the area was permeable, the pollution seeped into the Branch’s wells, making them unusable. The court determined that the defendant was strictly liable for the water pollution that escaped from its land and highlighted several cases that applied strict liability to environmental contamination, holding that keeping noxious chemicals on one’s land is an abnormally dangerous activity that can give rise to strict liability.[17]  

SLAPP Suits  

Strategic Lawsuits Against Public Participation is a phrase developed by legal scholars to describe the trend of lawsuits brought by powerful entities to intimidate opponents.[18] Corporate plaintiffs have sometimes brought SLAPP suits against environmental organizations when high-profit development projects are on the line and environmental impacts are a concern.

The SLAPP suit may, for example, be a developer’s suit against an environmental protester who had announced opposition to the developer’s project for defamation. While the developer may realize that the defamation action won’t ultimately succeed, it may scare off the protestor (who may not have the money to hire an attorney to defend the action) and may scare off other potential protectors. Anti-SLAPP laws impose penalties on companies who bring SLAPP suits.[19]

            For example, a multi-national logging company called Resolute Forest Products brought a 2016 lawsuit against Greenpeace in response to a Greenpeace public relations campaign aimed at stopping what it considered unsustainable logging in the Boreal forest. The lawsuit alleged defamation, fraud and even racketeering.[20] Greenpeace has also been sued over its campaign against the Dakota Access pipeline.[21]

A District Court in the Northern District of California found that it qualified as a SLAPP suit, enabling remedies that included dismissing its claims.[22] Greenpeace has alleged on its website that such “lawsuits, designed to silence criticism, are textbook examples of SLAPPs.”[23]



            This module laid out the common law foundation for environmental actions based on trespass, public nuisance, private nuisance, and strict liability. Next, we’ll focus on statutory and administrative laws developed to protect human health and the environment, starting with the federal Clean Air Act and its implementing regulations.

[2] 696 F.3d 849 (9th Cir. 2012).

[3] Quin Sorenson, Native Village of Kivalina v. ExxonMobil Corp.: The end of “climate change” tort litigation?, 44 ABA Env. Energy. and Res. Newsletter 3 (2013) available at https://www.americanbar.org/publications/trends/2012_13/january_february/native_village_kivalina_v_exxonmobil_corp_end_climate_change_tort_litigation.html.

[5] Hogg v. Chevron USA, Inc., 45 So. 3d 991 (La. 2010); Borland v. Sanders Lead Co., Inc., 369 So. 2d 523 (Ala. 1979).

[6] See e.g. Beatty v. Washington Metro Area Transit Auth., 860 F.2d 1117 (D.C. Cir. 1988).

[7]See e.g. Urie v. Franconia Paper Co., 107 N.H. 131, 133(1966).

[8] 459 N.Y.S. 2d 971 (N.Y. Sup. Ct. Rensselaer Co. 1983).

[9] Id. at 982.

[11] 257 N.E.2d 870 (N.Y. Ct. App. 1970)

[14] Id. at § 20

[15] Rylands v. Fletcher, LR 3 HL 330 (July 17, 1868).

[16]  657 P.2d 267 (Utah 1982).

[17] Id. at 275.

[18] Public Participation Project, “What is a SLAPP?” (2018) https://anti-slapp.org/what-is-a-slapp/ (last visited Sept. 15, 2018).

[20] Matthew Parsons, “Lawsuit Against Greenpeace Raises Freedom of Speech Concerns,” Human Rights Watch (May 31, 2018) https://www.hrw.org/news/2018/05/31/lawsuit-against-greenpeace-raises-freedom-speech-concerns (last visited Sept. 15, 2018).