The federal Constitution makes no reference to environmental rights or
responsibilities. In NEPA, Congress recognized that "each person should
enjoy a healthful environment and that each person has a responsibility
to contribute to the preservation and enhancement of the environment,"
but this provision has not been interpreted to provide for any
enforceable rights or responsibilities. 42 U.S.C. sec. 4331(c).
Some general environmentally related rights and responsibilities are
found in the common law, primarily relating to nuisance or tort. Every
state's common law rules may be different, but all of them provide a
background set of environmental responsibilities that may apply where no
statutory obligation exists. Some limited federal common law applies to
interstate pollution, but most common law is created by state courts.
Some federal or state statutes may be deemed to preempt common law
remedies, and in some other cases compliance with federal or state
statutes may be deemed an adequate defense to a common law action. The
primary causes of action include negligence, nuisance, and strict
liability. See W. Page Prosser et al., Prosser and Keeton on the Law of
Torts (5th ed. 1984).
The common law of torts generally prohibits any person from
unreasonably or "negligently" injuring another person or another
person's property. The elements of a tort case based on negligence,
include proving that: the defendant was required to conform to a certain
standard of conduct for protecting others; the defendant failed to meet
that standard by, for example, acting negligently or unreasonably; the
defendant's failure was the proximate cause of specific damage suffered
by the plaintiff; and the plaintiff suffered the damage. Damages in tort
may include all medical costs, loss of wages and other economic costs,
pain and suffering, and punitive damages. Thus, for example, a person
who negligently sprays pesticides on their property, which directly
injures the health of an innocent bystander, may have to pay for medical
costs, lost wages, and something for the injury. Negligence can also
extend to claims against manufacturers for providing faulty or dangerous
products, including for example toxic products. Such product liability
claims provide important protection for consumers and others.
The common law of nuisance generally prohibits any person to use their
land or property in a way that unreasonably interferes with the
enjoyment and use of another person's property. Thus under common law
nuisance theories, a property owner may be able to sue a neighbor for
damages caused or threatened to their property by, for example, air or
In some states, hazardous waste disposal or similar activities may be
deemed ultrahazardous activities. Plaintiffs damaged by such activities
are allowed to sue under a theory of strict liability. In strict
liability cases, it is not necessary to prove that the defendant did
anything wrong or negligent. Rather, the plaintiff must demonstrate that
the activity was inherently dangerous or unreasonable under the
circumstances and that the injuries were caused by the activity.
Examples of ultrahazardous activities have included drilling oil wells,
excavating near the ocean, emitting toxic substances, crop dusting with
pesticides, and using or transporting explosives or inflammable
materials. W. Page Prosser et al., Prosser and Keeton on the Law of
Torts 550-551 (5th ed. 1984).
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