The typical causes of actions asserted in most environmental lawsuits actually arise under both common or statutory law. Personal injury and property damage claims can both be recovered under common 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. On occasion, plaintiffs have also asserted claims for negligent misrepresentation, unjust enrichment, impairment of use of property, deceptive trade practice act violations, premises liability, fear of developing dreaded diseases, battery, and intentional infliction of emotional distress. The success of these latter claims differs dramatically from jurisdiction to jurisdiction.
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. Plaintiffs have also sought damages for future medical monitoring.
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.
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