Typical Causes of Action Asserted in Most Environmental Lawsuits (continued)

Michael Goldman
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An accomplished litigator representing his clients in complex environmental disputes throughout the country.

 

Under statutory law, plaintiffs oftentimes seek reimbursement of their cleanup costs to remediate contaminated property under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) or the Texas equivalent under the Texas Solid Waste Disposal Act (“SWDA”). 

These damages could, in theory, overlap with damages that are also sought by a plaintiff under common law.  Plaintiffs also assert citizen suits under several federal environmental statutes (e.g. Resource Conservation and Recovery Act) as “private attorney generals” which entitles them to statutory penalties, injunctive relief and attorney’s fees. 

Texas statutes do not provide for citizen suits, however, they do permit governmental units to enforce the Texas environmental statutes on behalf of the State of Texas pursuant to Section 7.351 of the Texas Water Code.

As discussed in greater detail my book, the burden of proof, applicable statute of limitations and damages available, among other things, might be dramatically different under common law as opposed to statutory law.  For these reasons, plaintiffs oftentimes assert both types of claims in the same action.

 Key Points

  • The typical causes of actions asserted in most environmental lawsuits arise under either common or statutory law. 
  • Under common law, plaintiffs usually assert causes of action for nuisance (private and public), trespass, negligence, negligence per se, breach of contract, fraud, and strict liability for ultra-hazardous and abnormally dangerous activities. 
  • Under common law, Plaintiffs seek various damages, including property damages, cost of testing, loss of land use, loss of market value of land, mental damages, exemplary damages and injunctive relief.
  • Under statutory law, plaintiffs oftentimes seek reimbursement of their cleanup costs to remediate contaminated property under either the CERCLA or the Texas equivalent the SWDA.
  • These damages could, in theory, overlap with damages that are also sought by a plaintiff under common law. 
  • Plaintiffs also assert citizen suits under several federal environmental statutes as “private attorney generals” which entitles them to statutory penalties, injunctive relief and attorney’s fees. 
  • Texas statutes do not provide for citizen suits, however, they do permit governmental units to enforce the Texas environmental statutes on behalf of the State of Texas.
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