There are several additional legal measures to fight environmental injustice, including common law tort claims, citizen suits, civil rights claims, class actions, and land use planning tools. The benefits of litigation as a tool for combating environmental injustice are many; often relief is provided directly to communities, and cases can create precedent for future disputes. Litigation tools are necessary to mitigate some of the effects of environmental injustice because the initiatives and grant programs described above are not wholly effective in preventing these sources of contamination and pollution from existing in communities or for cleaning up their past harm. Litigation can partly close a gap left open by a lack of federal and state regulation directly addressing environmental injustice.

§ 20.3.1—Common Law Tort Claims

The disproportionate allocation of environmental burdens on low-income and minority community areas often results in the contamination of property, which in turn leads to diminution in the value of property and interference with the use and enjoyment of property (both private property and common community areas), and increases community members' personal exposure to environmental toxins.137 Tort law can be used to recover damages or injunctive relief for such harms. The resolution of tort cases can empower victims of environmental injustice to bring an end to the contamination, remediate the contamination, or negotiate additional controls on the source.138 Tort law can "provide compensatory remedies that can address the disparate burdens imposed on minority and poor communities."139 Tort law has provided a remedy for exposure to air pollution, water contamination, and smog, among other harms.140

Tort law claims have been brought recently to recover damages for climate injustice resulting from climate alteration. In 2018, the Board of County Commissioners of Boulder County, Board of County Commissioners of San Miguel County, and City of Boulder filed a suit against Suncor Energy (U.S.A.), Inc., Suncor Energy Sales, Inc., Suncor Energy, Inc., and Exxon Mobil Corporation, for damages resulting from the defendants' climate-altering activities. The counties brought claims including public nuisance, private nuisance, trespass, and unjust enrichment. Tort law is appropriate for these types of damages because communities, including environmental justice communities, can seek relief for costs caused by climate alteration directly through common law, without regulating the industries. Many of the effects felt by Boulder and San Miguel County, including increased flooding, wildfires, and severe drought, directly affect real property.141

Tort law recognizes that individuals have a right "to be free from uninvited, non-consensual, harmful, or offensive contacts with his or her person," "to use, possess, and enjoy their own property free of unreasonable interference," and to "[e]quality of treatment in the distribution of . . . public protections, and public burdens."142 The goal of tort law is to compensate the injured person for any and all losses that result from the conduct for which the defendant is liable, and to make injured parties whole for their actual losses.143 Tort causes of action include trespass, nuisance, negligence, strict liability, and unjust enrichment.


Claims of trespass have been successfully used to recover damages from polluters who have contaminated personal property.144 In many cases, damages for loss in property value and use and enjoyment of the land have been awarded, in addition to injunctive relief for continuing trespasses. The physical intrusion can occur when an actor causes something else to enter the land; for instance, an "actor, without himself entering the land, may invade another's interest in its exclusive possession by . . . placing a thing either on or beneath the surface of the land."145 In the environmental justice context, however, damage awards may be inadequate to compensate victims. Damages awarded for trespass may include diminution of property value from the trespass and the costs of remediation or cleanup of contaminated properties.

The elements of the tort of trespass are a physical intrusion upon the property of another without permission from the person legally entitled to possession.146 A trespass may be committed on, beneath, or above the surface of the earth.147 The fact of the physical invasion establishes the tort; proof of actual damages is not necessary for recovery of an award for trespass.148

Comparative negligence is an affirmative defense only to negligence actions, that is, to liability based on fault, and therefore is not a proper issue for consideration in a trespass case.149 Intent to commit a physical intrusion is not an element of a trespass or nuisance claim, only the intent to do the act that constitutes or inevitably causes the intrusion.150

Each day contamination comes onto a property, and separately, each day existing contamination remains on a property without being removed by the polluter, constitutes a separate trespass or act of nuisance.151 Often, either the polluter or the environmental agency overseeing the polluter will promise a response to the contamination, leading victims to rely on these promises and delay taking action. After a period of time, the defendant claims the statute of limitations has run for tort claims for environmental damage. Colorado common law addressing continuing trespass and nuisance does not allow this delay in response to victimize those subject to environmental contamination.152


Victims of environmental injustice may also allege a substantial interference of use or enjoyment of their property because of environmental factors, such as odors, dust, or pollutants from a nearby facility, and bring a private nuisance suit. A private nuisance is a "substantial invasion of a plaintiff's interest in the use and enjoyment of his property."153 One may be liable for nuisance if his or her "conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land."154 A defendant may be liable if it intentionally or negligently contribute to the invasion.155 Residents of communities where pollution-creating facilities operate can use nuisance claims to recover damages and injunctive relief.156 Evidence can show that it is commonly known by facility operators that pollution-creating facilities built near residential areas will interfere with residents' ability to use and enjoy their property.157 Such interference can include "noxious odors" wafting onto adjoining properties.158

Liability for nuisance may rest upon any one of three types of conduct: an intentional invasion of a person's interest, a negligent invasion of a person's interest, or conduct so dangerous to life or property and so abnormal or out of place in its surroundings as to fall within the principles of strict liability.159 A private nuisance is a non-trespassory invasion of another's interest in the private use and enjoyment of land.160 To demonstrate its existence, the plaintiff must show that the defendant unreasonably and substantially interfered with the use and enjoyment of property.161 This is not an inquiry into the reasonableness of the defendant's conduct, but involves weighing the scope of the resulting interference with the plaintiff's enjoyment of the land.162 Nuisance, unlike trespass, does not require interference with the possession.163

Alternatively, public nuisance actions may provide another avenue for those affected by environmental injustice.164 A public nuisance "is an unreasonable interference with a right common to the general public."165 It

consists of conduct or omissions that offend, interfere with or cause damage to the public in the exercise of rights common to all in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons.166

Project siting decisions based on race or socioeconomic status can offend public morals, interfere with the use of public places, and endanger public health and safety.167 Siting decisions can be based on the political weakness of communities, and the trend to site facilities in these areas has been well documented, illustrating a discriminatory pattern, especially where the facilities release toxins that contaminate the surrounding soil, water, and air. These common areas can be considered "public," and the contamination of these areas could constitute a nuisance.168 Finally, the pollution resulting from the operation of such facilities threatens the public health and safety of the residents of the surrounding community. If residents band together, they may be able to give weight to the moral argument in light of the disproportionate environmental burden low-income and minority communities bear.169 Public nuisance theory may be particularly advantageous for victims of environmental racism because it can provide for equitable relief.170


Negligence actions aim to compensate the victim for physical injuries suffered because of the defendant's breach of its duty to the surrounding community. A negligence claim requires proof of duty, breach of duty, causation, and damages.

The duty to prevent harm to neighbors is clear under common law.171 The occupier of land generally owes a duty of reasonable care to prevent activities and conditions on his or her land from injuring persons or property outside his or her land.172 Compliance with industry standards or administrative safety standards is not conclusive on the issue of due care or negligence.173 Further, an injured party can recover damages for diminution in market value, loss of use, cost restoration, annoyance and discomfort, and loss of use and enjoyment for...

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