The Role of Environmental Torts in the Future

The Role of Environmental Torts in the Future

By: Blake Cushing, Staff Contributor

The vast majority of American history saw tort law as the primary mechanism for righting environmental wrongs.[i] Simply put, a victim who suffered harm due to a tortfeasor’s actions (including the doctrine of trespass and nuisance)[ii], inactions (negligence)[iii], or engaging in “abnormally dangerous activities” (strict liability)[iv] 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.[v] 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.”[vi] 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.[vii] However, harms to the environment can obviously also affect individuals. A perfect example of why environmental torts remain necessary is that of residual risk.[viii] 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”[ix] 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)[x]

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”[xi] 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 cleanup 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.”[xii] Though the government is typically the plaintiff in CERCLA cases, there are instances in which private plaintiffs are entitled to cost recovery for cleanups.[xiii]

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.[xiv] 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.[xv] Such fears were also present during the first term of the Bush administration.[xvi] Regardless of the effect of President Trump’s order, whose potential effects remain speculative at the moment, environmental torts have historically,[xvii] 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.

[i] See Mark Latham, Victor E. Schwartz, & Christopher E. Appel, The Intersection of Tort and Environmental Law: Where the Twains Should Meet and Depart, 80 Fordham L. Rev. 737, 737 (2011).

[ii] See Kenneth S. Abraham, The Relation Between Civil Liability and Environmental Regulation: An Analytical Overview, 41 Washburn L. J. 379, 383-384 (2002).

[iii] Id. at 384-385

[iv] Id. at 385.

[v] Latham, supra note 1, at 738-739.

[vi] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 (2016).

[vii] See Latham, supra note 1.

[viii] See Troyen A. Brennan, Environmental Torts, 46 Vand. L. Rev. 1, 21 (1993).

[ix] See Gregory M. Romano, “Shovels First and Lawyers Later:” A Collision Course for CERCLA Cleanups and Environmental Torts Claims, 21 Wm. & Mary Envtl. L. & Pol’y Rev. 421, 428

[x] See id. at 421.

[xi] See Brennan, supra note 8, at 44; Latham, supra note 1, at 759.

[xii] Abraham, supra note 2, at 385.

[xiii] See id.

[xiv] Juliet Eilperin, Trump Undertakes Most Ambitious Regulatory Rollback Since Reagan, Washington Post (Feb 12, 2017).

[xv] Steven Mufson, Trump Wants to Scrap Two Regulations for Each New One Adopted, Washington Post (Jan. 30, 2017).

[xvi] Abraham, supra note 2, at 379.

[xvii] Latham, supra note 1, at 737.blake-cushing-photo