If an individual or entity is not abiding by current environmental laws or is failing to implement necessary restrictions for other entities, you may hire an environmental lawyer to litigate a case against them. There are four things you should know about what this involves.
1. It is somewhat different than a tort or personal injury case.
In a personal injury case or a tort, there are vital elements to such actions: 1.) whether the defendant had a duty to act in a certain way, 2.) whether they breached their duty through negligence or intentional means, 3.) did the plaintiff suffer harm, and 4.) was the harm directly linked to the defendant's actions.
This fourth element is called causation, and it is handled slightly different in a environmental case.
While citizen environmental suits usually involve elements of having a duty, the breaching of it, harm and causation, the case will center around established statutes. (In a tort, the defendant may or may not have broken environmental laws, though it may be determined that their actions were harmful and negligent.)
Also, causation may be about the harm caused to animal and plant species, the elements, or changing weather conditions, and the human harm factor may be nebulous or difficult to prove.
2. There are three types of environmental suits that can be brought.
These suits can be brought against another citizen, a corporation, or even a governmental body. The various reasons a plaintiff can bring an environmental suit are:
- A government agency fails to enforce laws or come up with necessary guidelines to enforce a statute. As an example, you could sue if the Environmental Protection Agency (EPA) failed to enforce a law with another entity, or if you don't believe the way it is enforcing the law is fair or correct.
- An entity or private person is violating a statute and is misappropriating a resource or polluting it, whether it is the air, a water source, the ground, etc. Misappropriation could be a factor in a case involving water rights, for example.
- The citizen wants bring an injunction against an person or entity that is violating a law and causing environmental harm. (To seek an injunction means to ask the court for an order to stop or restrain a party from doing something, and/or to make restitution to the plaintiff(s) for harm suffered and litigation costs.)
3. A lawyer may advise you to go through several steps before heading to court.
Before a lawsuit is started, evidence must be collected. Experts may be brought in for testing purposes, and they may be called on to testify as well. This can be a costly process, so you might try just talking to the other side to see if an agreement can be reached or a creative solution could be found to satisfy the interests of both parties. Mitigation and arbitration may also help to remedy the situation.
If you know that the case has merit and not proceeding could result in real harm but you don't have the resources to continue, it might be wise to contact the EPA or another governmental agency with what you have. You may also need to consider joining forces with other plaintiffs.
4. For a Court to proceed with an environmental injunction, several elements of the case need to be demonstrated to the court's satisfaction.
The first element that would be considered is whether the case is likely to succeed on the basis of the existing statutes and the evidence presented.
The second element would be to show that the balance of economic damages to the community versus environmental damages is weighted more heavily on the environmental side if the actions of the defendant were allowed to continue. For instance, if the injunction to stop doing something that was causing environmental harm would only slow down economic growth, whereas the environmental harm would be substantial and incalculable otherwise, this element would be satisfied.
The final element to be proved would be that the continuing action of the defendant would cause significant harm to public interests and should be stopped.
For more information, contact Moore Smith Buxton & Turcke-Chartered or a similar firm.