An action under environmental law and civil litigation will arise either when an individual' s interests are directly affected by the actions of an other individual or where his rights are affected by the actions of a public body. When the dispute arises between private individuals a remedy will be sought under the traditional common law norms, and tortuous principals. Whereas when an individual wishes to challenge the desition of a public body, a root through judicial review may be available.
In most such cases a non- governmental organisation is acting as a representator of person's private rights or is campaigning against an activity damaging to the environment. In the adversarial system of common law, it is highlighted that the court will not entertain a case if the person who approaches it is not 'aggrieved'. In certain cases, environmental European directives andinternational policies can also be relied upon. The English courts traditionally adjudicate individual disputes on environmental harm under the law of tort.
The different kinds of torts related to environmental pollution are nuisance, negligence (and the doctrine of strict liability) and in restricted cases, trespass. With the exemption of intentional trespass which is actionable per se, unless damage is proved the action will fail. In a successful action damages will usually be obtained, as a remedy for the plaintiff; if the harm is an anticipated one, injunctive relief is also available.
Mandatory injunctions may also be decreed, commanding the defendant to do a particular act like cleaning up a piece of contaminated land or a polluted water source. Injunctions are generally favoured in a nuisance action. It has been widely recognised that the law of nuisance is the most significant course of action in respect of environmental issues. There are numerous limitations however, which render complex cases very hard to even be presented in court, furthermore to be successful.
A claim in nuisance is available only when environmental damage directly affects the use and enjoyment of another person's land, in which he has proprietary rights. Thus by definition, there is a clear limitation. There are signs that mere occupation of the land is now accepted by the courts to give rise to a private interest in land as established in Hunter v Canary1. In this case, the Court of Appeal held that nuisance protects anyone who has a 'substantial link' with the enjoyment of the property as a home.
This extension could provide some scope for the development of less private environmental interest, albeit doubtfully, since further existing limitations in nuisance actions would prohibit it. Even if a person's right for a claim is established, what amounts to interference with the use and enjoyment of land will be determined according to the circumstances of each case and the old and still very well established locality principle.
As Thesiger J.expressed it "what would be nuisance in Belgrave Square would not necessarily be so in Bermondsey"2 . This underlining principle clearly limits the private rights of people who are unfortunate to live in industrial area under specific planning regulations; whereas the opposite should have been the norm. In cases of public nuisance, individuals are not allowed to move a court in view of the legal bar that only the Attorney General, as the sole protector of public interest can initiate proceedings in such matters.
Individuals can file action against public nuisance by 'relator action', provided they get consent from the Attorney General. However, if the activity which amounts to a public nuisance happens to be one in which the government has an active role or interest, the Attorney General is unlikely to file action against the government as he would be embarrassing the government of which he is a part. A person who has no interest in land and cannot establish direct trespass to his property furthermore to himself may have a claim in negligence.
In the rare cases in environmental litigation that such a claim is made the complainant has to establish that a duty of care was owned to himself by the defendant, that this have been breached and that damages occurred as a direct consequence. It is a liability based on fault thus the damages must have been a reasonably foreseeable result. There are clear difficulties in establishing such an action. Even if a harm is proved, the requirement of the duty of care in environmental litigation will often be very hard to satisfy. This policy issue is regularly used by the courts to deny legal standing.
Thus in Gunn v Wallsend Slipway3, the employer had no legal duty to the employee's wife who had died from a lung disease caused, as alleged, by the present of asbestos dust brought home from the shipyard on her husband's clothes. Even if a duty of care was recognised the case could have failed on establishing the breach of that duty on whether the type of harm that occurred was foreseeable; or on establishing that the asbestos dust was indeed the material cause of her disease. In addition the employee's compliance with the regulatory principles at the time, would have been sufficient to dismiss the case.
In the landmark case of Cambridge Water Company v Eastern Countries Leatherwork4 The House of Lords held that Eastern Countries Leatherwork, who was responsible for spillages of chemicals in their property did not foresee the percolation of those chemicals into a distantly situated borehole for drawing water for the Cambridge Water supply. It was pointed out by the Court that it is not sufficient to show that some kind of pollution could have resulted from the defendant's negligent act, it is the type and magnitude of the harm caused that is relevant in this respect and could not have been foreseen by the reasonable supervisor.
The doctrine of strict liability as established in Rylands v Fletcher5 could have been a tool of immense potential for such difficult cases. Lord Backburn J, in a Court of first instance announced "… that the person who, for his own purposes, brings on to his land and collects and keeps their, anything likely to do mischief if it escapes, must keep it at his peril and if he does not do so, is prima facie answerable for all the damages which is the natural consequence of his escape"6.
The House of Lords added that this will apply in situations where the defendant's use of land is a 'non-natural use' refusing to extend the doctrine which would have been extremely helpful in cases regarding toxic fumes. Furthermore the House of Lords in the case of Cambridge Water gave a deluted meaning to the rule in Rylands holding that the foreseeability principle in Wagon Mound7 is applicable in the Rylands rule. Thus in England, unlike other common law jurisdictions like Australia, the doctrine has not been developed by the courts. Furthermore the Law Commission has criticised its scope8.
Lastly, trespass is the direct interference with another person or property. The advantage of a claim under trespass lies with the fact is that it does not require proof of damage. However, the requirement of direct interference has caused a number of difficulties in actions on environmental harm. Accordingly, in an action on trespass to land, unless the harm is taking place over the plaintiff's property, the action will have no substance. In Kerr et al v Revelstoke Building Materials 9, damages could be claimed only because the cropduster had passed directly over their farm.
This requirement of derivativeness renders an action in trespass very difficult to argue and rather impossible for cases dealing with issues such as air-borne pollution. Interference with a person is very strictly defined in environmental disputes and as such, it is impossible for someone to raise trespass to person for inhaling toxic or even noxious fumes arising out of waste causing discomfort or disease. It is evident from the above analysis that a litigant in a tortious action is disfavoured. The right to an action is limited by definition in all three torts.
Trespass actions are relevant to very few environmental issues especially since trespass to person generally has not been developed to apply in environmental disputes. Negligence and nuisance actions raise enormous evidential and technical difficulties to a litigant which in most cases cannot be confronted . In addition the costs and time required to bring such actions coupled with the risk of the case being unsuccessful are all preventive factors for a litigant to ask for damages or injunction. It has to be noted that damages awarded for environmental harm are usually much lower than in other common law disputes.
This being the case, in many occasions damages do not even overcome the costs of a trial. This is illustrated in Halsey v Esso Petroleum10 where the damages awarded were merely two hundred pounds. This notwithstanding that even if a case is argued successfully the damages awarded will benefit the individual litigant and not necessarily the environment, since civil remedies contemplate a system that compensates the damage suffered by the injured individual. It is only when a private interest coincides with an 'environmental interest', that such a result will be achieved.