Environmental torts

DEFINITION: Civil wrongs in which plaintiffs claim monetary awards and injunctive relief for personal injuries and property damages caused by contamination of the environment

When contamination of air, land, or water resources results from an environmental tort, damage awards from litigation may involve equitable relief that requires the polluter to cease activities causing the contamination, such as petroleum refining and chemical production, or may result in compensatory damages and, in some cases, punitive monetary awards to deter future behavior that pollutes the environment.

Environmental torts usually affect multiple persons and properties, often resulting in the filing of class-action lawsuits by hundreds of plaintiffs. Moreover, an action may be filed against multiple defendants, typically industrial entities, that might share in the liability for the claimed injuries. Environmental torts may result in pollution of environmental media, such as in the case of the Love Canal neighborhood in Niagara Falls, New York, where the land and underground water supply were so polluted with toxic substances that homeowners had to abandon their properties. Environmental torts may also cause direct personal injuries owing to contact with hazardous substances, many times seen in workplace accidents. Exposure to toxic substances raises a secondary issue in assessing personal injury damages, as some harm caused by toxic substances may not manifest until after exposure, and the statute of limitations could preclude filing a lawsuit in the future when the injuries are discovered.

Typical pollutants and toxic substances involved in environmental torts include petroleum products, bacteria, heavy metals such as mercury, and chemicals such as benzene, dioxins, and polychlorinated biphenyls (PCBs). Some of the worst environmental torts have been caused by petrochemical industries, steel mills, and mining companies that have carelessly or deliberately discharged hazardous contaminants into the soil, rivers, and underground water sources. In addition, power and utility companies may be liable for environmental torts if they release dangerous toxic substances into the air. Hospitals and medical facilities may be responsible for tortious bacterial contamination for failing to comply with environmental laws when disposing of medical waste.

In the United States, the federal government maintains a specialized environmental tort section within the Department of Justice that is responsible for trying environmental tort cases. These cases are usually filed against government contractors, but they may also involve US military facilities that have been used for toxic dumping grounds in the past, thus resulting in serious environmental contamination, especially of underground water supplies. For example, this division is defending cases such as the Camp Lejeune contaminated water case that have been filed under the "Honoring Our Promise to Address Comprehensive Toxics Act of 2022." The act also covers veterans who were exposed to burn pits and toxic substances, such as Agent Orange. Private litigants filing an environmental tort claim typically engage a specialty law firm. Some private litigants represent environmental advocacy groups that are interested in righting environmental transgressions or in seeking injunctions to stop the continuation of point source environmental contamination. Proving an environmental tort case, however, is complex; to be acceptable in a court of law, the evidence presented must be supported by the scientific community.

Causes of Action

Environmental tort actions may be based on both common law and federal and state statutory law. Common-law actions include claims for a nuisance or for trespass, which are mainly used in cases of property damage caused by toxic substances that contaminate the property of another. Both personal and property injuries may be claimed in tortious causes of action for negligence, intentional torts, and strict liability. In a negligence action, the plaintiff must show that a breach of duty or carelessness caused the damages claimed. Intentional torts require intent, which means a claimant must allege that the toxic contamination was done purposefully and with knowledge of the damages that could occur. Finally, a strict liability action does not require evidence of causation or intent; it simply requires a plaintiff to show that the injuries suffered were the result of an inherently or abnormally dangerous activity, such as using explosives in an environmentally sensitive area.

Federal environmental laws such as the Toxic Substances Control Act, the Clean Air Act, the Clean Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (known as Superfund) provide other avenues for litigating environmental tort cases. Individual states also have comparable laws that provide remedies for environmental wrongs. Many of the cases filed under statutory law involve the dumping of hazardous substances, including industrial lubricants; the use of toxic substances, such as asbestos, that have resulted in personal injuries; and the discharge of toxins into the environment, including the Exxon Valdez oil spill in Alaska.

International Environmental Torts

Many multinational companies based in the United States conduct business abroad, and some have caused environmental contamination in the locations of their international facilities, especially in countries that do not have many environmental regulations in place, such as developing nations. When a private individual attempts to sue a multinational US company in the United States for an environmental tort that did not occur in the United States, the US courts usually dismiss the claim. Such dismissals are based on a variety of legal grounds, including that the United States has no jurisdiction or right to hear the case, as a plaintiff must seek remedies from the courts in the nation where the tort occurred. Such was the result for many of the lawsuits filed in the United States after the release of a toxic gas at a Union Carbide pesticide plant in Bhopal, India, in 1984.

Industrializing nations such as China, in which environmental contamination is substantially increasing, have begun to adopt stiffer environmental laws. In addition, the international community works to try to curb environmental pollution and thus prevent potential environmental torts through environmental treaties and protocols. Some litigants, however, have placed blame on the international community for failure to regulate and mitigate environmental harms and have filed lawsuits against offending nations for such torts as alleged global warming caused by carbon dioxide and other emissions. In a landmark ruling, the European Court of Human Rights found that Switzerland had violated human rights laws by failing to adequately protect its citizens from the impacts of climate change. The 2024 finding highlighted critical gaps in policy that lacked adequate action to mitigate environmental threats, which disproportionately affect vulnerable populations, such as older adults.

Bibliography

Brown, Kegan A., and Andrea Hogan. Environmental Litigation: Law and Strategy. 2nd ed., American Bar Association, 2019.

"Environmental Tort Litigation Section." US Department of Justice Civil Division, 19 Aug. 2025, www.justice.gov/civil/environmental-tort-litigation-section. Accessed 29 Sept. 2025.

Lowry, John, and Rod Edmunds, editors. Environmental Protection and the Common Law. Hart, 2000.

Madden, M. Stuart. Law of Environmental and Toxic Torts: Cases, Materials, and Problems. 3rd ed., Thomson/West, 2005.

"Switzerland’s Refusal to Accept the European Court of Human Rights’ Climate Ruling: An Embarrassment for the Swiss Government ." Center for International Environmental Law, 29 Aug. 2024, www.ciel.org/news/switzerlands-refusal-of-european-court-of-human-rights-climate-ruling-an-embarrassment. Accessed 29 Sept. 2025.

"Tort Law and Climate Change ." The Law and Climate Atlas, University of Cambridge, Apr. 2024, lawclimateatlas.org/resources/tort-law-and-climate-change-2. Accessed 29 Sept. 2025.

Wilson, Mark W. “Why Private Remedies for Environmental Torts under the Alien Tort Statute Should Not Be Constrained by the Judicially Created Doctrines of Jus Cogens and Exhaustion.” Environmental Law, vol. 39, Mar. 2009, pp. 451-80.