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Impediments to Environmental Tort Claims

Posted on:2/27/2012
A major barrier to the success of private litigation for many pollution problems is the difficulty of proving causation.

Successful plaintiffs must prove that they have suffered actual harm, that the harm arose from a specific pollutant, that the pollutant is a type discharged by the defendant, and finally that this pollutant actually arose from the defendant and not from some other polluter.


The traditional rule that limitation periods run from the time of injury or from the time of the tortious act is a barrier to plaintiffs suffering from latent illness and those who are not immediately aware of their injury, and also to owners of property affected by toxic materials first discharged or deposited long ago. Such circumstances are typical of environmental exposure cases.


Under "discovery" rule limitation periods run from the time the injury is or ought reasonably to have been discovered, preserves the right of victims with latent injuries to take legal action. Still, the discovery of injury does not necessarily coincide with discovery that the illness was caused by the negligence of another party, so there may continue to be an impediment.


Another potential barrier to environmental tort litigation is that would-be plaintiffs may have difficulty obtaining standing. The common law of private nuisance may be excessively limited in granting standing only to owners (or tenants) of real property, when in fact the general public may have a legitimate interest in many pollution problems.

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