Water pollution and common-law torts

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 13-57

13

Chapter II:

WATER POLLUTION AND

COMMON-LAW TORTS

A. INTRODUCTION

Pollution has been with us since the dawn of human activity. Pollution did

not become a serious problem, however, until the development of urbaniza-

tion and the advent of the Industrial Revolution. Comprehensive st atutory

regulation of water pollution is a recent phenomenon. Prior to the enact-

ment of water pollution control legislation, injuries caused by pollution led

to demands for legal redress, resulting in disputes that created a body of

tort law, primarily in nuisance, trespass, and negligence. Public nuisance can

abate pollution ha rming the general public. Private nuisance and trespass

can abate pollution harming individuals and their property. Damages can be

awarded under any of them for harm caused by pollution.

Although tort remedies have long been available to address harm caused

by pollution, they did not evolve into a system for c omprehensive environ-

mental protection for two reasons. First, tort law is designed primarily to

award compensation for individual harms already suered rather tha n to

prevent ha rm to the broader environment. Second, even when tort law is

available, it often presents special causation and remedy diculties for envi-

ronmental plaintis.

With the exception of public nuisance, tort law is designed to provide rem-

edies for bodily or property injuries suered by individua ls, while pollution

damage is most often or more acutely suered directly by the environment

itself. For the most part, tort law is oriented toward providing compensa-

tion for injuries already sustained. But pollution often creates increased risk

of future injuries. us, pollution control is most eective when aimed at

preventing such injuries. Tort law deals with a specic injury to a particu-

lar plainti, wh ile pollution control dea ls simultaneously with ma ny simi-

lar sources of pollution in roughly the same manner. Tort law is operative

only when an able plainti is willing to invoke it, whereas pollution con-

trol depends on the willingness of the public and the government to address

generic harms and directly or indirectly pay for their redress. At best, tort law

14 Water Pollution Control, 2d Edition

results in a patchwork of dissimilar remedies for randomly selected instances

of a generic problem. Providing a clean environment requires addressing

generic problems comprehensively, instead of randomly.

Proving cause s of action and justifying appropriate remedies often pres-

ent special diculties for plaintis in environmental tort cases. Proving the

nature and extent of injuries suered often involves considerable scientic

data and expertise, typically from more than one eld of science. Justifying

appropriate remedies often involves considerable technica l and engineering

data and expertise. e scientic and technical issues involved may be at the

cutting edge, where clear answers are simply not available. us, environ-

mental tort cases can be expensive for the plainti to prosecute and dicult

for the jury to understand. Damages from pollution may be dicult to value

in monetar y terms and may not appea r for many years after the pollution

occurs. Where there are multiple pollution sources, it may be dicult or

impossible to determine how much pollution each individual source contrib-

uted and how much it must abate to eliminate the continuing environmental

injury. Pollution sources have often operated for long periods of time, mak-

ing action ag ainst them dicult or impossible bec ause of statutes of limita-

tions, laches, and similar doctrines.

Since tort law is not ideally suited to providing a clean environment, the

United States has developed statutory programs to control pollution. ese

statutory programs, however, have not eliminated the need to address pollu-

tion with tort law. Because pollution control programs are a imed at abating

pollution, they provide no compensation for individuals harmed by pollution

in the pa st or by the residual pollution that remains in the future, after t he

required regulatory abatement is accomplished. us, pollution programs

and tort law march side by side, often providing pa rallel remedies for the

same problems.

Tort law inuenced the development of st atutory pollution control pro-

grams, particu larly in the allocation of liability and the development of rem-

edies for environmental harm. By the same token, statutory and reg ulatory

pollution control programs have inuenced tort law in many ways. Statu-

tory law could preempt tort law altogether, although it rarely does so in the

environmental eld. More often, statutory law creates a duty or provides a

standard t hat can be used in tort law to evaluate polluting activities. Statu-

tory law may highlight diculties with particular tort doctrines, leading to

changes within the doctrines themselves. Regulatory programs have manda-

tory self-reporting requirements, and thus result in masses of government-

Water Pollution and Common-Law Torts 15

generated data or the availability of privately generated data that may be of

great use to environmental tort plaintis. ese kinds of data may be used

in either identifying potential defendants, proving damages, or justifying

appropriate remedies.

e rst part of this chapter explores the tort causes of action most often

invoked in water pollution cases a nd the particular diculties that environ-

mental plaintis have had in preva iling in them. e second part challenges

the reader to address a typical water pollution problem with trad itional tort

law. e third pa rt explores some of the problems that have been generated

by the coexistence of tort law and pollution control regulatory programs.

B. COMMON CAUSES OF ACTION AND SPECIAL

DIFFICULTIES FOR ENVIRONMENTAL PLAINTIFFS

Historically, nuisance and trespass were the most commonly invoked tort

causes of action for water pollution, although negligence, strict liability, and

other causes of action also have been used to address it. Indeed, plaintis pur-

sue environmental torts so frequently that they have become a separate eld

of study within environmental law. See

M.

S M, M’

L 

E 

 T

T:

C,

M ,



P

(3d ed. 2005). is section of the chapter focuses on the ways in

which tort law may be used to redress pollution and the limitations on its use

for that purpose. e following is not a primer on any of the causes of action

described, but will serve as a quick review of torts and their elements.

1. THE CAUSES OF ACTION

a. Public Nuisance: Government Plainti

Section 821B of the Restatement (Second) of Torts (1977) denes a public

nuisance as “an unreasonable interference with a right common to t he gen-

eral public.” Governments may seek to abate public nuisances on behalf of

their citizens, much as governments enforce regulatory programs to protect

them. us, the government might sue a factory in nuisance to abate its dis-

charge of pollutants into a river. e government would allege that the fac-

tory’s discharge was unreasonably interfering with the public’s use of the river

as a source of potable water, a means of recreation or a source of edible sh.

e issues might be whether: (1) these uses of the river were public rights,

largely a legal issue; (2) the discharge interfered w ith those rights, largely a