There are three sorts of lawyers - able, unable and lamentable. -- Robert Smith Surtees
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 water pollution.
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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