Addressing Environmental Pollution with Old Theories in the United States

Addressing Environmental Pollution with Old Theories in Environmental Law

Even though no statute expressly gives a person a specific right, it does not follow that the right does not exist. English law established the idea that each person had a bundle of rights associated with living. These rights are called protected interests, because courts have recognized them and awarded damages to people whose interests were invaded. These rights were cherished by the emigrants and became a part of the legal tradition in the colonies. Since that time, they have also changed considerably.

Torts

An injury caused by an interference with an individual’s protected interest is a tort. The same act may also be prohibited by the government because it disturbs the public peace. If that is the case, the act is also a crime. Torts come in many shapes. Some are intentional, some are negligent, and some are simply unavoidable. The right to sue someone for a tort belongs to a particular person or class of persons the individual or individuals whose protected interest was violated.

Tort law, which developed through cases rather than statutes, is important to our legal system. This type of law common law reflects society’s values at the time of the decision. It changes very slowly, in contrast to statutory laws, which can be abruptly altered by new statutes. The edifice of common law is built brick by brick as judges determine what issues will be pivotal in deciding liability. Once a principle is established in a case, it remains in the background to be used as a rule for similar cases in that court or in lesser courts. One case may expand the earlier rule, another may clarify it or draw a distinction between the rule and the current case. Still, legal principles require that it be followed unless the court overrules it. This element of law lends predictability to the outcome of cases.

Other types of laws include constitutions, treaties, executive orders, and regulations. All of these categories play a role in dealing with environmental pollution.

In environmental matters, a number of torts are important, particularly trespass, conversion, nuisance, negligence, and strict liability. They are significant not only as theories for lawsuits but also because the concepts are woven into many of the statutes. Two basic principles underlie the torts to be examined: (1) an individual has the right to prevent someone else from invading his or her body’s integrity; and (2) an individual has the right to peaceful and undisturbed possession of property real or personal that he or she owns or has a right to possess.

Trespass has long been recognized as a wrong. A trespass to realty occurs if a person enters property belonging to another and that person does not have permission to be there. Property is either real or personal. Real property is associated with land, including the land itself, attachments to the land, and fixtures. Personality, or personal property, is any item that can be possessed physically and is not real property.

Trespass to personal property occurs when someone touches or otherwise uses personal property without the permission of the owner; a trespass to a person involves a no privileged touching of that person. Conversion is more intrusive; it occurs when a person who is not the owner or rightful user of property takes possession of the property to the exclusion of the rightful owner. Nuisance is an interference with the use and peaceful enjoyment of property.

The tort of negligence underlies the majority of personal injury lawsuits. As its name implies, intent is not a factor, but a number of elements must be proven for the courts to find liability. First, a duty of some sort must be owed to the injured party (plaintiff) by the one who caused the injury (defendant); second, the duty must be breached through an act or omission by the defendant; third, an injury must in fact occur, and the breach of the duty must be the proximate cause of the injury.

Proximate cause is a method of terminating liability. Only if the breach of duty is the proximate cause of the injury, and all the other elements are present, can the defendant be responsible. A direct connection must exist between what a person did and the injury that occurred. The plaintiff must be within the class of people who would be protected by performance of the duty, and the injury has to be foreseeable by a reasonable person who contemplated the consequences of breaching the duty. The exact person injured and extent of injury, however, need not be foreseeable.

The proximate cause concept is not simply causation. It is confusing even to law students who spend weeks or even months trying to grasp the idea. Basically, the body of law behind the concept limits recovery for injuries to the person who did the original act. Sometimes the focus is on who the duty was owed to. However, the end result is to draw a line to determine what injuries a particular defendant should be responsible for and who must be compensated.

In a simple case of negligence, such as the following, the connection is easy to see. Driver A drives recklessly, runs a stoplight, and hits Driver B. Driver B suffers physical injuries and property damage to the car. Passenger C is also injured. The injuries to Driver B and Passenger C and the property damage to Driver B’s car are the result of Driver A’s negligence. Driver A owed a duty to the public at large the government and to other drivers to obey the law and drive carefully. The foreseeable victims of a breach of that duty include other drivers and their passengers. Driver B’s breach of the duty is also the proximate cause of the injuries. Their respective lawyers would, of course, examine the degree of injuries to determine whether all or some of the injuries complained of did stem from the wreck.

Moving on to a situation that is less clear, but a classic case in tort law, here is a fact situation involving an unforeseeable plaintiff. The case is Palsgrafv. Long Island Rail Co. (1928). A passenger was running to catch a train. When he got to the door, one of the defendant’s employees tried to help him board it. He dislodged a package that contained fireworks, which then fell on the rails and exploded. Many feet away, some scales were overturned by the blast; they landed on the plaintiff and injured her.

The Palsgraf case stands for the principle that a defendant is not responsible for the unforeseeable plaintiff. The duty of the railroad was to the public and its passengers. By jostling the man who was boarding, some harm could have been expected to him or nearby pedestrians, or to the package itself, but stretching that action of negligence to cover the plaintiff was too far. Therefore, no proximate cause existed.

Legal experts grapple with the proximate cause concept, and it is impossible to explain all its nuances in the context of this book. One of the leading scholars of tort law, Professor William J. Prosser, sums up the purpose of proximate cause in a relatively clear manner in the Law of Torts [1971: 236237]: As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of policy or justice.

Legal experts grapple with the proximate cause concept, and it is impossible to explain all its nuances in the context of this book. One of the leading scholars of tort law, Professor William J. Prosser, sums up the purpose of proximate cause in a relatively clear manner in the Law of Torts [1971: 236237]: As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in impos
ing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of policy or justice.

As English society became industrialized, new products were introduced and activities surrounding their creation generated problems of their own. Negligence, still a useful theory of liability, was joined by strict (or absolute) liability. As the term suggests, strict liability does not depend on fault. Some activities are inherently dangerous, regardless of the amount of care the participant exercises. The classic example of such an activity is dynamiting. Likewise, some products, such as automobiles or electric saws, are capable of great injury if they are improperly designed or manufactured. Although society values the activities or the products, the principle behind strict liability is that the person who introduces the danger should bear the cost if an innocent party is harmed as a result.

Applying Traditional Tort Theories to Environmental Law

Negligence is well suited for both cases involving personal injury and injury to property caused by environmental pollution. In addition, if toxic or hazardous pollutants are involved in causing personal injury, strict liability is a good alternative to negligence.

A new class of new torts has arisen toxic torts. The class includes the theories discussed above: trespass, nuisance, conversion, negligence and strict liability. But toxic torts also require the plaintiff to show that some type of toxic agent, such as a chemical pollutant or a drug, was involved. Toxic tort suits frequently allege a violation of a statute or regulation, and proof of the violation goes a long way toward proving the case. These tort theories can be applied to personal injury as well as real property damage.
Based on “Environment and the Law. A Dictionary”.