21st Century Environmental Litigation: a primer

Introduction

Many lawyers fail to recognize that there is a significant distinction between environmental litigation which seeks to protect natural resources, environmental systems, and the plants and animals which are essential elements of those systems, or challenge government actions which might cause damage to environmental values as a result of shortsighted, mission-oriented agency policies which can be shown to be ecologically unsophisticated, environmentally irresponsible, economically irrational, and socially unacceptable.

Toxic Torts

Environmental damage such as the BP oil spill in the Gulf of Mexico, the Exxon Valdez grounding in Alaska, the blowout of Platform A in the Santa Barbara Channel, failure of the 3-Mile Island nuclear power station in Pennsylvania, and the contamination of groundwater memorialized in the film, A Civil Action, Anderson v. Cryovac,
and the PFAS cases against DuPont are all examples of what are generally referred to as “toxic torts.”

“Toxic” torts are not much different than more traditional torts such as nuisance, trespass, and “Negligence.” The Plaintiff victim claims to have suffered economically determinable injuries as a result of breach of duty owed to them by the wrongdoer/tortfeasor. The breach of duty was the “proximate” cause of the injury and the resulting economic loss and damage.

Failure to fully comprehend the nature of the environmental system in which the tort occurred leads to a defendant’s verdict as occurred in the Anderson case where the Plaintiff’s attorneys failed to understand the groundwater hydrology of the region and were unable to establish that the toxic wastes released by the Defendants contaminated the drinking water of the Plaintiffs.

Disincentives to Environmental litigation

Because environmental litigation seeking equitable relief to protect natural resources and environmental systems does not usually lead to money damages and large attorney’s fees, very few of the highly skilled and successful members of the tort bar are interested in undertaking environmental litigation. Environmental litigation has been left for not-for-profit organizations to bring and in many cases such organizations are forced to rely upon attorneys with relatively little litigation and courtroom experience. As a result, the litigation tends to pursue a few conventional avenues involving challenges to actions or lack of action by federal and occasionally state administrative agencies who are defended, as a general rule by government lawyers who also lack litigation and courtroom experience outside of their administrative tribunals.

This creates a situation where, at the trial level, it often appears that the blind and unknowledgeable are leading the halt and lame uninformed through the miasma of misunderstanding. The judicial officers who preside over those administrative trial hearings are often limited by the constraints of their agency mission statement and not really qualified to see the context of the litigation before them of how it affects an entire environmental system rather than merely that portion of the system which Congress has designated to be within the Agency’s “jurisdiction.”

Judges in environmental litigation

Judges in courts of general jurisdiction, both state and federal, are less constrained and often more willing to consider the larger effects of the actions or lack of action the Plaintiffs are complaining about. Judges in Courts of general jurisdiction expect to be educated by counsel and the witnesses they present during a trial.

The hearing officers and Administrative Law Judges who preside over administrative agency litigation at the trial stage often bring a special expertise in the subject matter within the agency jurisdiction. They may not be willing to hear evidence and testimony outside the scope of the agency interest. An exception was Maurice Van Susteren (1918–1999), the hearing officer appointed by the Wisconsin Department of Natural Resources to hear the case against DDT.

Van Susteren not only allowed the plaintiffs to present evidence establishing DDT and its principal environmental metabolite, DDE, as an environmental contaminant affecting a wide variety of biological systems throughout the world, not just in the state of Wisconsin, but he seriously considered the evidence in his decision.

Environmental Litigators

The responsibility of attorneys representing Plaintiffs in environmental litigation extends beyond demonstrating legal prowess and skill as a trial lawyer. It is imperative that they possess a thorough understanding of the subject matter of the litigation and the science upon which it is based. Many attorneys are often unwilling or unable to acquire a comprehensive understanding of the scientific evidence supporting the Plaintiff’s case and, as a result, fail to present it in a compelling manner to the judge or jury who serve as the ultimate arbiters of the facts.

The current state of environmental litigation is a tragedy that can be traced back to the failure of not-for-profit fundraising organizations which filed actions without insisting that the attorneys who try them understand the science upon which the case depends.

This is perhaps no better illustrated than the comment by a trustee of the Environmental Defense Fund in December, 1969, when they terminated the services of their founder and attorney, Victor John Yannacone, jr., “Never again will we hire a lawyer who understands science!” And they never did.

Environmental litigation; general considerations

Meaningful “Environmental” litigation involves a lawsuit to prevent serious, permanent, and irreparable damage to natural resources or environmental systems.

Environmental litigation evolved from civil rights litigation in 1966 with the challenge to DDT use for Mosquito control in Suffolk County, NY.

Environmental litigation is public interest litigation and should be brought as a class action for declaratory judgment and equitable relief; not for money damages to compensate an individual or individuals.

The Representative Plaintiff

Class actions require a “Representative Plaintiff” who can establish their ability to fairly represent, without any conflicts or adverse interest, all the individuals who may be considered members of the class.

The Representative Plaintiff in class action environmental litigation should be an ad hoc not-for-profit, public benefit corporation qualifying for registration under 26 U.S.C.S. § 501 (LexisNexis, Lexis Advance through Public Law 118-34, approved December 26, 2023, with a gap of Public Law 118-31) (“§501(c)(4)”) whose statement of purpose is, “to take whatever direct legal action may be necessary to assures that public policy is based upon on rational science and actions which affect the Environment as a General System whether by government agencies, business entities, or individuals is taken only on the basis of substantial credible scientific evidence in accordance with the precautionary principle.”

The §501(c)(4) corporation should have a limited number of members, all of whom are Trustees. The trustees approve litigation and the litigation budget, accept the funds necessary to conduct the litigation, and distribute and pay out those funds according to the budget. The operational members of the NFPC are the Controller and the Executive Secretary. Other than the Controller and Executive Secretary, all the other members of the §501(c)(4) corporation can remain anonymous if they so choose. Their contributions of goods, services, and money can also remain unattributed.

The §501(c)(4) corporation manages production of scientific witnesses including arrangements for travel, meals and lodging as well as honoraria for professional services which may be performed in the public interest.

Expert witnesses

As a matter of policy, all scientific witnesses in public interest environmental litigation are produced by subpoena so that they can maintain their scientific objectivity and detachment. They will be testifying under court mandate (subpoena) in the public interest not as partisans in the litigation. They will not be paid “fees” for testifying; however, their expenses will be covered and an “academic” level honorarium provided which many of the witnesses will waive.

Contact between the Representative Plaintiff and their attorneys calling them as a witness will be limited to a review of publications and the preparation of abstracts of those publications that are being offered to the Court as evidence.

The §501(c)(4) corporation retains the attorneys and trial counsel for the litigation; negotiates the retainer agreements; and approves the litigation budget.

This organization plan minimizes the risk of compromising the tax-exempt status of any established §501(c)(3) corporation organization which wishes to support the litigation and protects the integrity and independence of each individual scientific expert.

In the United States and Canada, indigenous peoples organized as nations, tribes, or even families can claim sovereignty and assert their rights of access to the American Courts under the Constitution of the United States in order to protect their people, their natural resources and environment, and their culture.

The complaint in environmental litigation

One of the fundamental principles of environmental litigation since I coined the phrase in 1967 and launched the Environmental Defense Fund on the path towards national prominence was, and still is, to bring any legal action which seeks to influence public policy in the form of a declaratory judgment demanding equitable relief.

A declaratory judgment action is, by its very nature, non-adversarial. It seeks only to determine truth as the law contemplates the meaning of that term, a declaration of rights, and provide an equitable remedy for violation of those rights.

In the United States, all legal actions in the federal courts require a complaint verified under oath by someone who is familiar with the facts alleged in the complaint.

The party against whom the complaint is addressed must respond with a verified answer and/or some kind of procedural motion to dismiss the complaint.

In addition to responding directly to the allegations of the complaint, an answer may contain affirmative defenses, counterclaims, and cross-complaints the allegations of which have to be answered in a sworn reply by the party who filed the complaint.

Initiating Environmental litigation

Environmental litigation is based upon a verified Complaint.
The allegations of the complaint include procedural statements about jurisdiction, venue, causes of action, and a prayer for relief all together with substantive allegations of fact concerning the substance of the litigation.

The complaint can be filed together with a Summons and the action will follow the timetable of the Court in which it is filed.

However, if the Representative Plaintiff believes there is imminent danger of serious, permanent and irreparable damage, the Plaintiffs can make application to a Judge for an Order to Show Cause with an accelerated return date, sometimes only a few hours later as occurred in the Florissant fossil beds litigation.

Principles common to all Environmental complaints

A number of complex interactive dynamic systems involving the atmosphere, hydrosphere, and lithosphere establish the conditions under which the Biosphere can and does exist on this planet Earth.

All of the dynamic processes responsible for life on Earth occur over time at a variety of scales from fractions of seconds to billions of years.

The “Environment” is by definition the result of the interaction of all the dynamic interactive processes of the atmosphere, hydrosphere, lithosphere and biosphere over time on Earth.

A successful Environmental “case” is presented to the Court as an edifice built from many individual bricks — statements of fact which can be established from substantial credible scientific evidence. The purpose of the allegations in the Complaint is to obtain as many admissions as possible of the facts upon which to build the case and establish a specific and precise outline of the areas of disagreement, so the Court and the media will have no doubt about the issues.

That is why many of the allegations in a properly crafted Environmental Complaint are stated as “According to the work of <>” who may become a witness, published or reported in “<>,” so there is no question this is a fact which can be denied only by assertion of contrary substantial credible scientific evidence, “<>” that must be responded to with similar precision.

The verified Complaint upon which an Environmental lawsuit is based must be a lengthy and detailed “white paper” setting forth the entire substance of the claim against the Defendant(s).

Any motions seeking to dismiss the complaint should be met with cross-motions for partial summary judgment which require a preliminary “mini” trial on the merits of the allegations in the Complaint.

Environmental litigation; the answer

The Defendants must respond to Plaintiffs’ verified complaint with either a verified Answer or a Motion to Dismiss or a Motion for Summary Judgment.

Regardless of what method of response the Defendant(s) choose, the factual allegations of the verified complaint must be responded to in some fashion under oath by someone having direct knowledge of the substantive matter of which the truth or accuracy is challenged.

The responses of the Defendants’ Answer to the substantive allegations of the complaint are limited to “Admit;” “Admit with specific qualifications;” “Deny;” or “Denied upon information and belief” which requires the party making the denial to state the basis for denying the truth of the allegation either at the time the denial is made or shortly thereafter.

An Answer may also contain an admission of ignorance, “Party lacks any knowledge or information sufficient to form a belief as to the truth of the allegation.”

The usual procedure of government agencies is to challenge the “standing” of the Representative Plaintiff or their right to bring the action on procedural grounds. Otherwise they must either admit or deny the substantive allegations contained in the complaint.

On the return of the Order to Show Cause or motions seeking to dismiss the Complaint, the Representative Plaintiff must advise the court that they are ready to establish by a fair preponderance of the substantial credible evidence elicited through direct testimony and cross-examination from a variety of witnesses that the allegations of fact in the verified complaint are true and accurate.

The need to respond to each allegation of fact with particularity forces the Defendant(s) to precisely define their defenses and identify the precise evidence they rely upon. It also circumscribes and bounds the positions of their experts. Their answers to the myriad of factual allegations in a properly crafted Environmental Complaint creates a target or targets against which to direct the testimony of the witnesses presented by the Plaintiffs.

Each of the specific allegations referring to an individual or a reference has to be linked to the original document which will also be attached to our pleading as whatever electronic record the local Court rules require. Contemporaneous with filing the original Complaint, the Representative Plaintiff §501(c)(4) corporation must establish an information only non-interactive secure website to which will be posted all the documents filed with the Court in the action and provide email contact information to which journalists, the public and potential donors may direct correspondence and inquiries.

Proximate Cause

Proximate cause is a hallowed element of tort law that comes to us from the late Nineteenth Century in both the United States and the English Common Law jurisdictions. It is the lynchpin of stare decisis for the modern Law of Torts, particularly in areas involving product liability and personal injury. It rules out speculative causation and long chains of circumstances such as exemplified in the maxim, “for want of a nail, the shoe was lost, and for want of a shoe, the horse was lost…”

Under the doctrine of proximate cause, the people injured by the ultimate injury to the horse would not have a viable cause of action against the negligent farrier whose shoddy workmanship led to loss of the horseshoe. Another word for the proximate cause doctrine is “remoteness.”
Environmental litigation confronts the issue of proximate cause in the allegations of the complaint which define the Regional Environmental System and its elements which have been injured and damaged by the actions or lack of action about which the Plaintiffs complain.

The prayer for relief

The prayer for relief in any complaint filed in an environmental lawsuit basically requests judgment and an order of the court providing equitable relief in the nature of an injunction to prohibit further damage; creating a trust fund from the current earnings of the responsible non-governmental entities responsible for the damage; a mandate for mitigation of the damage already done as well as a prohibition on activities which might cause further damage; and finally a monitoring program coupled with continuing jurisdiction of the court to assure that the system is recovering and that the mitigation plan is working.

The equitable trust fund from current earnings of non-governmental defendants is a way to prevent any of them seeking protection under the bankruptcy laws which would permit reorganization without regard to any damage for which they were responsible prior to the bankruptcy. The bankruptcy filings of the Boy Scouts of America and many religious organizations to escape liability for child abuse is an example of how large organizations, even not-for-profit charitable and religious organizations, can escape responsibility for the injuries inflicted in their name and avoid responsibility for the damages the victims have incurred.

In any environmental lawsuit, the prayer for relief must always demand that the defendants pay for an independent Environmental Impact Assessment (EIA) and production of the initial Leopold Matrix. The Leopold Matrix was developed in 1972 by Luna Leopold, a world famous hydrologist and expert on fluvial processes at the United States geological survey to guide federal agencies in developing the Environmental Impact Statements (EIS) required by NEPA.

Include some kind of provision for long-term monitoring as well. That assures continuation of jurisdiction by the Court over the defendants during the course of any remedial or mitigation actions that are necessary and provides a regularly reportable measure of the success or failure of the remedial or mitigation actions. Without monitoring over a reasonable period of time measured in terms of the time it takes for natural recovery of the environmental system which has been damaged, any success in the litigation is temporary at best. There is no guarantee that the damage to the system will not continue albeit perhaps a bit slower in being observed.

The value of Environmental Litigation

Whatever the court decides, the facts will be before the public and in the hands of the media in the context of a search for truth and a plea for environmental Justice.