Statutory strict liability for environmental contamination: a private cause of action to remedy pollution or mere legislative jargon?

• Author: Hunter, Gary K., Jr.
• Position: Florida

From the perspective of a plaintiff and counsel attempting to remedy damages through litigation, it is an enviable posture to pursue such recovery with the aid of a statutory cause of action, particularly one providing for strict liability and affording the otherwise unavailable opportunity to collect costs and attorneys' fees.(1) Litigation to recover damages for pollution or to compel rehabilitation of pollution is no exception to this premise. Although available, traditional tort remedies are not ideal for resolving the complexities associated with the origins and consequences of pollution. Further, they fail to offer the opportunity to recover costs and attorneys' fees which routinely escalate to enormous sums when pursuing damages associated with pollution.

At first glance, F.S. [section]376.313 appears to resolve favorably this dilemma for Florida environmental practitioners by providing a statutory strict liability cause of action to recover damages associated with a "discharge or other condition of pollution."(2) After all, this section is entitled "Nonexclusiveness of remedies and individual cause of action for damages under ss.376.30-376.319."(3) Nonetheless, practitioners debate and courts grapple with whether this section provides an individual cause of action for damages attributed to discharges of pollutants or hazardous substances, and, if so, the scope of such an action.(4)

The Florida Supreme Court could have resolved the dispute after granting certiorari to review the Fifth District's opinion in Kaplan v. Peterson, 674 So. 2d 201 (Fla. 5th DCA 1996), rev. dismissed, 687 So. 2d 1305 (Fla. 1997). After completion of the briefing schedule to the Supreme Court, however, the appeal in Kaplan was dismissed. This left the matter resolved inconsistently among the district courts of appeal. To borrow from Judge Griffin's dissent in Kaplan, this left Florida practitioners "trying to read the tea leaves."(5)

Legislative History

The Florida Legislature enacted F.S. Chapter 376 in various parts, first enacting in 1970 Chapter 70244, Laws of Florida, currently F.S. [section, section]376.011-376.017 and 376.19376.21, the Pollutant Discharge Prevention and Control Act,(6) (referred to herein as Part I). In 1983 the legislature enacted the Water Quality Assurance Act (referred to herein as Part II), Chapter 83-310, Laws of Florida, currently F.S. [section, section]376.30376.319.

Part I was enacted to protect Florida's coastline from a catastrophic oil spill. The legislature declared, in part, that "the highest and best use of the seacoast of the state is as a source of public and private land"(7) and prohibited: "The discharge of pollutants into or upon any coastal waters, estuaries, tidal flats, beaches, and lands adjoining the seacoast of the state in the manner defined by ss. 376.011-376.021..."(8)

Part II, passed 13 years later, included a broader declaration by the legislature designed to protect not only the seacoast and estuaries, but to protect all of the state's lands and waters from pollution. In Part II, it was declared that

[T]he preservation of surface and ground-water is a matter of the highest urgency and priority, and that such use can only be served effectively by maintaining the quality of inland waters as close to a pristine condition as possible, taking into account multiple use accommodations necessary to provide the broadest possible promotion of public and private interests.(9)

The scope of Part II was limited to discharges of "pollutants."(10) The act was later amended to prohibit discharges of "hazardous substances" as well."(11)

For purposes of this article, it is important to note several of the many similarities between these separately enacted and unrelated parts of Chapter 376. Both provide for strict liability to the state for damages incurred as a result of a discharge prohibited by either act.(12) Each also appears to create an individual cause of action to recover damages associated with violations of the prohibited activities. Section 376.205, within Part I, is entitled "Individual cause of action for damages under ss. 376.011-376.21"; Section 376.313, within Part II, is entitled "Nonexclusiveness of remedies and individual cause of action for damages under ss.376.30-376.319."(13) This latter similarity is particularly evident when comparing the language of the respective sections. As originally enacted, [section]376.313 was practically identical to [section]376.205.(14) If a private cause of action were created in [section]376.205, then the legislature also intended to provide a similar remedy in [section]376.313. Courts should harmonize the construction of statutes relating to a common subject or purpose.(15)

Fortunately for Floridians and our coastal environment, no reported opinions indicate a necessity, to date, for a private party to pursue an individual cause of action under Part I of Chapter 376 via a [section]376.205 action for damages.(16) However, in differentiating Part I of Chapter 376 from the federal Water Quality Improvement Act of 1970(17) and concluding that the Florida act was not preempted by the federal law, the U.S. Supreme Court relied partially on the fact that the "Florida Act imposes strict liability for any damage incurred by the State or private persons as a result of an oil spill in the State's territorial waters." Askew v. American Waterways Operators, 411 U.S. 325, 327 (1973).

The Supreme Court noted that Congress, in the federal act, "dealt only with cleanup costs," leaving the states...