The foundation concerning environment protection in the United States formed with the concept of property rights in the common law and the prerequisite of proof for damages and the rights and duties. To obtain a stand to sue, identifying the plaintiffs and the evidence concerning damages is required under the common law. The common law remedies have provision for payment for damages to the injured party or enjoining the polluters to put an end to their actions, which causes harm. Even after certain sharp constraints by the statute law, common law impacts the remedies against the pollution. Activities that are undertaken in day-to-day lives such as pollution of the air due to emissions of a vehicle or pollution of water generated from the waste form the by-product of pollution. Harmful effects of pollution can be seen in climate changes as well as global warming.
There are certain traditional theories of actions that common courts use in environmental litigation. Major theories for pollution under the common law can be categorized as a nuisance, trespass, negligence, and strict liability along with damages as well as injunctions as its remedies. These theories have equal application to air, water, noise as well as land pollution.
Initially, common law cases aimed to prevent the pollution of the environment, where the cases included mostly private or public nuisance actions. When there is interference in the use and enjoyment of the real property unreasonable, a private action of nuisance is constituted. When the injury is caused to the public concerning exercising their common rights, a public nuisance action is constituted.
When there is an involvement of both the actions of nuisance concerning private use and interference with public rights, an individual can maintain an action for both public and private nuisance. However, an individual requires proof of special damage suffered to maintain a public action.
The remedy that is preferred against both the public and private nuisance is an injunction, as the remedy is furnished before the damage occurs rather than after its occurrence. In most cases, the remedy of injunction is effective as injury to be proved by an individual is so small that judgment concerning the damages is valuable for preventing the defendant from gaining a prescriptive right. However, after proving the necessity of granting injunctive relief as the threatened injury is not repairable, an injunction is issued.
Trespass Theory
The absence of a requirement of proof of intention or negligence for determining the liability should have provided the best protection against the trespass in real property. The use of this remedy widely had certain limitations even after successful use in many cases. One of the two limitations in the wide use of the remedy was the availability of the remedy in case of direct invasion in the neighbor’s land. The other limitation was the involvement of an object big enough to be visible with the naked eye to determine the direct invasion. However, when interference is caused in possession of the plaintiff due to invisible pollutants or discharge, it can be sort through the action of a nuisance.
When water is polluted by pollutants carried by the water to the land, trespass has been used as an action. For instance, the Court of Appeals in Kentucky case labeled that continuous trespass due to the deposition of deleterious substances from the defendant’s coal mines onto the plaintiff’s land during river flow pollutes the defendant’s land. Nuisance and trespass are relatively used in the common law theory of action for remedies against pollution. In most cases, the separation of these two theories will lead to insufficient evaluation of the use of trespass doctrine for environmentalists in analyzing cases.
Negligence and Strict Liability
In the theory of negligence under the common law, one may seek recovery for the injury caused due to pollution or such other ecological impairment. An action for negligence is established when pollution is created by the defendant negligently, and damage is caused to the plaintiff due to such pollution. When an action is taken concerning negligence, it provides compensation as a remedy to the party who is injured. This design of remedy is provided as part of the protection of the interest of the public. Therefore action for negligence results in the recovery of damages.
However, the pollution controllers face certain difficulties using negligence that the plaintiff in their negligence action also faces. Proving a connection between the pollution and the harm caused due to such pollution is one of such difficulties. On the other hand, the imposition of the standard of care for determining the negligence or non-negligence of the conduct is another difficulty faced by the pollution controllers. The doctrine of strict liability provides another remedy concerning the damage to the environment. The concept of strict liability was established in the famous case of Rylands v. Fletcher, where damages were provided to the plaintiff for the flood on their property. In this case, the plaintiff was not required to show the negligence caused. Many American cases rejected the use of the doctrine of strict liability in the nineteenth century. However, later on, the courts allowed recovery of damages where ultra-hazardous activities were involved, such as fumigation of cyanide gas.
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