CHAPTER 8 INNOVATIVE TRENDS IN ENVIRONMENTAL LITIGATION: National and International Perspectives

• Jurisdiction: United States

International Environmental Law for Natural Resources Practitioners
(Mar 1997)
CHAPTER 8
INNOVATIVE TRENDS IN ENVIRONMENTAL LITIGATION: National and International Perspectives
Michael C. Donovan
Douglas W. Michaud
ZEVNIK HORTON GUIBORD & MCGOVERN
Palo Alto, California 94306

Innovative National Trends

In modern environmental law, common law principles of equity and modern statutory constructs are becoming increasingly interwined. The challenge is to maintain a clear focus on the dynamic relationship between ever-evolving common law principles of equity and the often strict liability inherent in many modern environmental statutory schemes as they affect the rights and defenses available to private parties in environmental litigation. There is an emerging trend toward the recognition of common law equitable remedies within the interstices of and in the boundary areas between the modern, complex statutory schemes governing remedial environmental law. Today's environmental practitioner must be aware of the extensive dialogue that has developed and is continuing between modern statutory environmental law and its common law heritage.

In that the common law principles described in this discussion have been adopted, developed and modified primarily as a matter of state law, this discussion has not endeavored to provide a complete survey of the current status of the law in all states. Rather this discussion focuses the emerging trends from a national perspective, while recognizing that the laws of specific states may vary to a greater or lesser degree and that specific state statutory schemes will preempt the common law in that state to differing degrees. Notwithstanding these variations, the concepts discussed will apply in all jurisdictions, and should prove useful in addressing the complex remedial environmental issues that may arise.

Since California codified its common law of nuisance in 1851 and has left it virtually unchanged from that time forward,¹ those statutes represent an excellent view of the origins of common law nuisance in the United States. Accordingly, this discussion will frequently reference California nuisance statutes and the cases interpreting them as support for fundamental common law nuisance principles.

In addressing the complex legal and technical problems inherent in hazardous substance contamination, the trend over the last two decades has been to legislatively mandate

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the comprehensive regulation of the generation, treatment, transportation, storage and disposal of hazardous waste and the remediation of toxic contamination within complex statutory frameworks. While some of these statutory schemes have expressly or impliedly preempted the common law in some respects,² a continuing dialogue remains between the common law and these statutory schemes, especially in the context of equitable remedies. As Congress has created these complex legislative frameworks, they have drawn heavily on traditional common law principles and remedies, particularly in designing remedial liabilities. Accordingly, where the statutory schemes fail to provide sufficient guidance for the courts to effectively resolve the cases before them, the courts may still resort to the common law tradition inherent in virtually all modern environmental statutes.³

The courts have long recognized that in designating the forum for, and nature of, the actions provided by these complex statutory schemes, Congress has consistently relied and drawn on traditional, common law principles of equity. In a string of decisions, the U.S. Supreme Court has repeatedly reaffirmed the equitable powers of the federal courts. In Mitchell v. Robert DeMario Jewelry, Inc.,⁴ the Supreme Court held that, "[w]hen Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes." In Califano v. Yamasaki,⁵ the Supreme Court noted that, "[a]bsent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction." Finally, in Weinburger v. Romero-Barcelo,⁶ the Supreme Court again asserted that, "a major departure from the long tradition of equity practice should not be lightly implied."

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While the extent to which common law principles of equity will remain within a field addressed by a new statutory scheme is far from well defined, some modern environmental statutory schemes expressly provide that they shall not preempt some defined areas of statutory or common law which would otherwise fall within the area covered by that statutory scheme,⁷

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while others are silent or expressly preempt the area.⁸ State statutory schemes can also expressly provide that they will or will not preempt private parties' state law causes of action.⁹ The environmental practitioner should not lose sight of the important role and opportunities presented by the availability of traditional equitable remedies both within and between modern environmental statutory schemes.

For example, the availability of equitable injunctive relief in conjunction with a CERCLA cost recovery action was widely doubted in light of the clear congressional mandate for CERCLA as a mechanism for cost recovery in the context of hazardous waste remediation. In Lincoln Properties, Ltd. v. Higgins,¹⁰ the United States District Court for the Eastern District closed the loop in a cycle that began with Ohio v. Ex rel. Brown & Gerogeoff¹¹ and N.Y. v. Shore Realty Corp.¹² by holding that a private party litigant in a CERCLA action is entitled to assert claims seeking injunctive relief under other federal statutes which carry mandatory federal jurisdiction. In short, mandatory injunctive relief authorized by other federal statutes is consistent with the statutory scheme as manifested under CERCLA. The holding in Lincoln Properties provides the private party plaintiff another means of shifting the

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liability associated with remedial investigation and abatement of hazardous substance contamination within the federal statutory framework as contemplated by CERCLA.

The plaintiff in the Lincoln Properties case, Lincoln Properties, Ltd (hereinafter "LCL"), owns a large retail shopping center known as Lincoln Center. The soil and groundwater below Lincoln Center was contaminated by PCE (a toxic dry cleaning solvent) discharged by three dry cleaning tenants of Lincoln Center for more than two decades. Although LCL had not discharged and had no knowledge of any discharge of toxics on or from its premises, the California Regional Water Quality Control Board directed LCL to investigate the contamination.

LCL sought a more equitable solution which involved forcing the culpable dry cleaners, its lessees, to participate in the investigation and clean-up of the hazardous substance contamination. To accomplish this transfer of the investigative and remedial obligations, Lincoln Properties filed an action which alleged, not only CERCLA cost recovery and declaratory relief causes of action for recovery of all response costs incurred and to be incurred, but also causes of action based on the abatement of endangerments, citizen suit provisions of RCRA¹³ § 7002(a)(1(B) and California public nuisance abatement law seeking an injunction ordering the dry cleaners to investigate and remediate all hazardous substance contamination at, or emanating from, Lincoln Center for which they were collectively responsible.

Upon motion by plaintiff LCL for summary judgment on the CERCLA and RCRA causes of action, the court granted LCL's motion and, noting that the dry cleaners were the source of the contamination and would certainly bear a "substantial portion" of the ultimate liability when apportioned, the court announced that it would issue a permanent, mandatory injunction. After briefing and argument to determine the form and scope of the injunction, the court issued its first permanent, mandatory injunction which directed the dry cleaners to undertake, jointly and severally, the investigation, monitoring, and testing of the hazardous substance contamination at and emanating from Lincoln Center in full compliance with the NCP.¹⁴

In Lincoln Properties, the court was faced...