Environmental contamination as continuing trespass.

• Author: Rhymes, Christopher M.

1. INTRODUCTION II. BLACK LETTER CONTINUING TRESPASS: DOCTRINE AND THE RESTATEMENT III. COMPETING JURISPRUDENTIAL APPROACHES A. The Injury-Based Approach: The Colorado Supreme Court Looks to Abatability and Public PoKey B. The Conduct-Based Approach: The Louisiana Supreme Court Looks to the "Operating Cause" in Hogg v. Chevron C. Splitting the Difference: The Massachusetts Supreme Court Subscribes to a Conduct-Based Approach that Allows for Continuing Liability in Continued-Migration Cases IV. EVALUATING THE APPROACHES A. The Conduct-Based Approach 1. The Conduct-Based Approach Generally 2. The Louisiana Conduct-Based Approach vs. the Massachusetts Conduct-Based Approach: Should Continued Migration Constitute "Conduct"? B. The Injury-Based Approach V. CONCLUSION I. INTRODUCTION

   Environmental contamination has been actionable as some form of trespass since the late medieval period) Despite this ancient lineage, modern courts in the United States are still at odds over the proper application of the common law tort of trespass to cases arising from industrial pollution. This Comment addresses one narrow aspect of contemporary environmental contamination trespass law on which courts disagree: whether the continued presence or continued migration of contaminants onto a plaintiffs land can establish a "continuing trespass" that will perpetually renew the cause of action so that it will not be time-barred by a statute of limitations.

   How statutes of limitations are applied to environmental contamination tort claims is a matter of significance for a number of reasons, including the difficulty of discovering the contamination, the great costs associated with environmental remediation, and the societal concern of abating pollution without inappropriately punishing industry. Indeed, even in this modern era of comprehensive federal regulation of environmental contamination, the viability of common law tort claims remains significant because the federal regulatory regimes have generally preserved private common law tort claims, (2) and a private plaintiffs recovery under federal statutes may be more limited than the recovery available in tort. (3)

   Courts generally agree that environmental contamination may constitute the tort of trespass. (4) The paradigmatic case, for the purposes of this Comment, is that of a defendant who has allowed a contaminant, like gasoline held in a leaking underground storage tank, to migrate onto a plaintiffs land. Courts disagree, however, as to whether the continued presence of contaminants on a plaintiffs land may constitute a continuing trespass that will not be time-barred by a statute of limitations. (5) Courts also disagree as to whether the continued migration of contaminants onto a plaintiffs land, absent a continued tortious leak or dumping activity, will constitute a continuing trespass. (6) The body of case law on these issues is somewhat confusing and not well developed, (7) a situation that has not been helped by, and in part may be a result of, a lack of guidance from commentators. (8)

   In sum, there are two primary competing jurisprudential approaches to the problem of the continuing contamination trespass: the conduct-based approach and the injury-based approach. (9) Under the conduct-based approach, a trespass is only continuing where the tortfeasor perpetuates the injury through ongoing acts of trespass; the cause of action accrues upon the cessation of the tortious conduct. (10) The conduct-based view considers the contaminated state of the land to be the continuing effect of prior wrongful conduct," and the defendant's failure to remediate the contamination will thus not constitute continuing tortious conduct. (12) Under the injury-based approach, the classification of a trespass as continuing depends on the nature of the injury to the land, and a continuing trespass may be found even in the absence of continuing tortious conduct of the kind that caused the contamination. Under this approach, if the trespass causes a "permanent" injury to the land, then the trespass is not continuing; if, however, the injury is "abatable," then the trespass is a continuing one. (13) This Comment will explore these competing jurisprudential approaches as they are illustrated in case law from the supreme courts of Colorado, Louisiana, and Massachusetts. While not exhaustive of all issues and arguments, the opinions from the Louisiana and Colorado supreme courts represent two of the most complete examinations of the continuing contamination trespass currently available.

   Part II of this Comment is an exposition of continuing trespass law as the Restatement and doctrinal writers have dealt with it. As will be seen, the traditional continuing trespass doctrine described in Part II forms the basis for the injury-based approach. Part III compares opinions from the Louisiana, Colorado, and Massachusetts supreme courts in order to illustrate how similar factual circumstances will garner different results depending on the theoretical approach to the issue of continuing trespass taken by the reviewing court. Part IV highlights the relative virtues and vices of both the conduct-based and injury-based approaches. Finally, this Comment concludes with the suggestion that the conduct-based approach may provide the better rule.

2. BLACK LETTER CONTINUING TRESPASS: DOCTRINE AND THE RESTATEMENT

   The traditional formulation of the tort of trespass is such that "one who intentionally enters or causes tangible entry upon the land in possession of another is a trespasser and liable for the tort of trespass, unless the entry is privileged or consented to." (14) While there are numerous qualifications and extensions of this general rule in the totality of the modern law of trespass, (15) this Part will concentrate on the principles of trespass law that necessarily inform an application of the tort of trespass to the environmental contamination context. As will become evident, the following rules and principles expressed in the doctrine and the Restatement lay the foundation for the injury-based approach to continuing contamination trespasses.

   A trespass may be committed by "placing a thing either on or beneath the surface of [another's] land." (16) Beyond this, under the Restatement's formulation, a "trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it." (17) While the typical trespass is complete when it is committed--at which time the cause of action accrues and the statute of limitations begins to run (18)--a trespasser's failure to remove a thing he tortiously placed on the land of another generally "constitutes a continuing trespass for the entire time during which the thing is wrongfully on the land." (19) Two of the most important legal consequences of the "continuing trespass" are: 1) the plaintiff will be able to bring successive actions for the continuation of the trespass after the beginning of each of his preceding trespass actions, and 2) because the continuing trespass gives rise to successive actions, a statute of limitations will only bar a claim for so much of the trespass as occurred outside the limitations period. (20)

   However, not every trespass that continues in the manner described above will be considered a continuing trespass. (21) The continuing trespass must be distinguished from the "permanent trespass." (22) The Restatement illustrates the distinction as follows:

   A continuing trespass must be distinguished from a trespass which permanently changes the physical condition of the land. Thus, if one, without a privilege to do so, enters land of which another is in possession and destroys or removes a structure standing upon the land, or digs a well or makes some other excavation, or removes earth or some other substance from the land, the fact that the harm thus occasioned on the land is a continuing harm does not subject the actor to liability for a continuing trespass. Since his conduct has once for all produced a permanent injury to the land, the possessor's right is to full redress in a single action for the trespass. (23) The legal consequences of a permanent trespass are the inverse of those of a continuing trespass: 1) only one action may be brought to recover all damages, past and future; and 2) the statute of limitations runs from the date of the original trespass. (24)

   As one group of commentators has noted, "[i]t is not easy to find harmony in the case results" distinguishing continuing from permanent trespasses.

   (25) Nonetheless, these commentators suggest that classification in these cases can be generalized as "partly a matter of fact and partly a matter of policy seemingly governed by a number of factors." (26) The following are identified as the most significant factors cutting against classification as permanent:

   1) the invasion can in fact be terminated or abated, 2) the cost of termination is not wasteful or oppressive, 3) no privilege or public policy favors a continuation of the invasion, 4) [an] incentive to abate the invasion can be provided by permitting repeated suits for damages as they accrue, 5) the plaintiff prefers temporary damages, and 6) overall, it is not just to permit the defendant to acquire the permanent right to invade the plaintiffs interests in land by paying market price for that right against the plaintiffs wishes. (27)

   The simplest case of a permanent trespass is that of an offending structure that is a necessary part of a public utility; the utility will operate (to society's benefit) for an indefinite duration and thus it is appropriate to allow for only one action to recover all damages that will flow from this permanent intrusion on the plaintiffs property. (28) This results in what has been termed "inverse condemnation." (29) The classic case of a continuing or temporary trespass, in...