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Environmental litigation t he f i l i ng of lawsuits to protect the environment or to prevent or remove pollution, or countersuits to defend against environmental legal actions-has grown enormously in the United States since the 1970s. The legal basis for these suits has been a complex, growing web of federal and state statutes, which have also created environmental regulatory agencies to develop policy rules and regulations for implementing environmental public policy.
Environmental regulatory agencies, in fulfilling their legislative mandates, have developed a vast number of environmental regulations that are now part of administrative law. Their administrative rules and regulations are quasi-legislative and are usually enforced by the environmental agencies, which also have quasi-judicial powers. The net effect is that polluters can be fined or imprisoned for violating bureaucratic rules as easily or more easily than for actions violating some general laws.
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 reluctant to restrain business activities with injunctions to prevent future environmental degradation.
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.
With the adoption of massive new environmental laws in the 1970s, the legislation and the courts increasingly allowed private citizens to acquire standing for bringing a suit. The courts showed a growing willingness to allow citizen suits, even on a class action basis, to be brought to enforce the National Environmental Policy Act. The courts, in the absence of legislative authority for judicial review and in the face of bureaucratic indifference to environmental practices by the federal government, decided cases that forced the practice of developing environmental impact statements. Many of the suits that forced both federal and state bureaucracies to change old behaviors were brought by citizens or environmental action groups.
The exercise of judicial review to examine the constitutionality of governmental actions has been the basis of numerous suits, especially from business or industry seeking relief from environmental litigation. On the other hand, many environmental groups have also challenged governmental activities as unconstitutional violations. The use of tort law and judicial review are the basis of most environmental suits.
The political climate in which environmental litigation emerged in the 1970s was one of suspicion and hostility toward government. The Vietnam War had angered many on the ideological left from which the environmental movement’s activists were usually drawn. Many court battles were fought with very hostile feelings driving the litigation. This original litigious atmosphere often made negotiations or compromises difficult to achieve. The consequences were legal duels to settle disputes over environmental issues that generated serious legal costs and more acrimony.
The 1980s and 1990s
In the 1980s some environmental groups resorted to civil disobedience and, in some extreme cases, to ecological terrorism. However, in the main the use of the Endangered Species Act and other legislation brought numerous environmental issues into the courts where the tendency was to favor the environment. In some liberal courts, the green political views of environmental extremes were often favored.
In the legal world of environmental litigation, business and industry have found that even if they have complied as fully as possible with current environmental law-they have used the best practices and worked with both federal and state agenciesthey have not done enough to satisfy some litigiously minded environmental groups. The reason some lawsuits arise is due more to environmental philosophy than to actual illegal activity. For example, the forest philosophy of Gifford Pinchot was to manage resources; however, John Muir wanted the nation’s forests left as unspoiled wilderness. Very different environmental philosophies abound in the United States, where litigation is relatively easy compared with the rest of the world.
As a consequence of the litigious environmental atmosphere some law firms have organized on a national basis and have legal incident reaction teams to respond to the filing of an environmental suit almost immediately and almost anywhere no matter how remote. The goal of these environmental defense firms is to promptly protect the interests of companies and individuals from suits that may have the power to damage or destroy a business.
In response to environmental litigation many businesses have engaged in SLAPP (strategic lawsuits against political participation) countersuits. These are punitive suits that seek to punish citizens or groups for using the courts or even for using public forums to criticize business activity. SLAPP suits usually lose in court; however, they can have a chilling effect and can be expensive to defend against.
The Environmental Protection Agency has been the source of many suits. It has also reflected the philosophical policy differences of the ideological spectrum in its history as different administrations have controlled the agency. In the long run environmental litigation will continue to flourish because technological changes will continue to have significant environmental consequences, and because the American public is concerned about individual and environmental health in at least a general sense.
Because of the expense of litigation and because using court decisions often creates a zero-sum game, the use of mediation has attracted attention since the 1990s as a way of negotiating environmental policies that avoids enormous legal costs. Mediation also allows all the parties interested, including environmental groups, to have a place at the bargaining table. Environmental litigation is also growing in many countries as resource extraction or manufacturing without regard to the environmental consequences causes severe environmental damage. International agreements are increasing to deal with global environmental issues.
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