Environmental Litigation:
A 21st Century Primer
Introduction
Many lawyers fail to recognize that there is a significant distinction between conventional litigation rooted in contracts and torts and environmental litigation, which seeks to protect natural resources, environmental systems, and the plants and animals essential to those systems. Environmental litigation also challenges government actions that might damage environmental values due to shortsighted, mission-oriented agency policies that 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 films, 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 from traditional torts such as nuisance, trespass, and negligence. The Plaintiff claims to have suffered economically determinable injuries due to a breach of duty by the wrongdoer/tortfeasor, which was the “proximate” cause of the injury and the resulting economic loss and damage.
Failure to fully comprehend the environmental system in which the tort occurred often leads to a defense verdict, as happened in the Anderson case, where the Plaintiff’s attorneys failed to understand the groundwater hydrology of the region and could not establish that the toxic wastes released by the Defendants contaminated the Plaintiffs’ drinking water.
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 successful tort lawyers are interested in undertaking such cases.
Environmental litigation has been left to not-for-profit organizations, which often rely on attorneys with limited courtroom experience. As a result, litigation tends to involve conventional challenges to government actions or inactions, typically defended by government lawyers with limited litigation experience beyond administrative tribunals.
This creates a situation where, at the trial level, inexperienced parties lead each other through a misunderstanding of the case. The judicial officers who preside over administrative hearings are often constrained by agency mission statements and are not always qualified to see the broader context of the litigation or how it affects an entire environmental system.
Judges in Environmental Litigation
Judges in general jurisdiction courts, both state and federal, are less constrained and more willing to consider the larger effects of the actions or inaction the Plaintiffs are complaining about. Judges in these courts expect to be educated by counsel and their witnesses during a trial.
In contrast, administrative law judges often bring special expertise in the subject matter within the agency’s jurisdiction but may be unwilling to hear evidence outside that scope. An exception was Maurice Van Susteren, the hearing officer for the Wisconsin Department of Natural Resources, who allowed the plaintiffs to present evidence that DDT and its principal environmental metabolite, DDE, were contaminants affecting biological systems globally, not just in Wisconsin.
Environmental Litigators
The responsibility of attorneys representing Plaintiffs in environmental litigation extends beyond demonstrating legal prowess; they must also possess a thorough understanding of the science upon which the case is based. Many attorneys are unwilling or unable to acquire a comprehensive understanding of scientific evidence and fail to present it compellingly to the judge or jury.
This failure is evident in a statement made 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., saying, “Never again will we hire a lawyer who understands science!”
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. It is public interest litigation and should be brought as a class action for declaratory judgment and equitable relief, not for money damages to compensate individuals.
The Representative Plaintiff
Class actions require a “Representative Plaintiff” who can fairly represent the interests of all members of the class. The Representative Plaintiff in class action environmental litigation should be an ad hoc not-for-profit, public benefit corporation qualifying under 26 U.S.C.S. § 501(c)(4), whose purpose is to take necessary legal action to ensure that public policy is based on rational science.
Expert Witnesses
In public interest environmental litigation, expert witnesses testify under subpoena to maintain scientific objectivity and detachment. They are not paid fees for testifying but may receive an academic-level honorarium, which many waive.
Unlike conventional tort litigation, contact between expert witnesses and attorneys is limited to a review of publications and preparation of abstracts offered as evidence.
The Complaint in Environmental Litigation
A fundamental principle of environmental litigation, coined in 1967 with the founding of the Environmental Defense Fund, is to bring actions seeking declaratory judgment and equitable relief.
A verified complaint is required, with allegations supported by credible scientific evidence. The Defendant must respond with a verified answer, which may include affirmative defenses, counterclaims, or cross-complaints.
Initiating Environmental Litigation
Environmental litigation is based on a verified complaint. If the Representative Plaintiff believes there is imminent danger of serious damage, they can request an Order to Show Cause with an accelerated hearing, as occurred in the Florissant fossil beds litigation.
Principles Common to All Environmental Complaints
The classical definition of an “environmental system” developed during the closing days of the DDT hearings in Madison, DDT on Trial in Madison as
A general system comprised of a number of complex interactive dynamic systems involving the atmosphere, hydrosphere, and lithosphere which establish the conditions under which the Biosphere can and does exist on this planet Earth. System Studies of DDT Transport
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.
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 <
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
Defendants must respond to environmental complaints with a verified answer or a motion to dismiss. They must address each factual allegation, either admitting, denying, or stating a lack of knowledge.
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, “Defendant(s) 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.
The Supreme Court of the United States has recently attempted to limit standing to individuals who have suffered “special” damages as individuals. <
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, some of whom will be sitting in the Courtroom pursuant to subpoena 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 “evidence” has to be linked to an original document which is submitted with the Complaint as an Exhibit. This requires the Defendants to support any denials or objections to those allegation with substantial credible scientific evidence.
Contemporaneous with filing the original Complaint, the Representative Plaintiff §501(c)(4) corporation should establish an information only, non-interactive, cybersecure 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…”
Proximate cause is a key element of tort law that limits liability to foreseeable outcomes. Environmental litigation must address the issue of proximate cause by defining the environmental system affected by the Defendant’s actions.
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.”
Proximate cause is a key element of tort law that limits liability to foreseeable outcomes. Environmental litigation must address the issue of proximate cause by defining the environmental system affected by the Defendant’s actions.
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 prayer for relief in environmental litigation seeks equitable remedies, such as injunctions, trust funds for mitigation, and court oversight to ensure recovery of the damaged environmental system.
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.
The Value of Environmental Litigation
Whatever the court decides, environmental litigation brings facts to the public, promoting truth and environmental justice.