Frequently Asked Questions About Environmental Litigation

A unique feature of major U.S. environmental laws like the Clean Air Act and Clean Water Act is the “citizen suit” provision. This allows private individuals or non-profit organizations to act as “private attorneys general” to sue polluters directly when the government fails to take enforcement action.

To file a citizen suit, you generally must provide a 60-day notice to the alleged violator and the relevant government agency (such as the EPA). If the agency does not initiate its own enforcement during that window, the citizen can proceed. While successful plaintiffs often win injunctions to stop the pollution and can have their legal fees covered, any monetary penalties usually go to the U.S. Treasury, not the plaintiff.

A toxic tort is a specific type of personal injury lawsuit where the plaintiff claims that exposure to a hazardous substance caused them illness or property damage. Common examples include lawsuits involving lead paint, asbestos, contaminated groundwater (like PFAS or “forever chemicals”), and pesticide exposure.

These cases are technically demanding because the plaintiff must prove causation: that the specific substance from the defendant actually caused their specific health condition. Because symptoms of toxic exposure (like cancer) often take years to appear, these cases frequently involve complex scientific testimony and battles over the “statute of limitations,” which determines how much time a victim has to sue after discovering the harm.

In the United States, you cannot sue just because you are generally unhappy about environmental damage; you must have “standing.” Under Article III of the Constitution, a plaintiff must prove three things to a judge:

1. Injury-in-Fact: You have suffered a concrete and particularized harm (e.g., you live near a river that is being polluted).
2. Causation: The harm is “fairly traceable” to the defendant’s actions.
3. Redressability: A favorable court ruling would actually fix the problem.

For environmental groups, this often means showing that at least one of their members uses the affected area for recreation, aesthetic enjoyment, or work, and that their interests are directly threatened by the defendant’s conduct.

The National Environmental Policy Act (NEPA) is often called the “Magna Carta” of U.S. environmental law. It does not forbid pollution; instead, it requires federal agencies to “stop and think” before taking any major action that could significantly affect the environment, such as building a highway, pipeline, or dam.

Litigation under NEPA usually challenges the adequacy of an Environmental Impact Statement (EIS). If a group can prove the agency failed to consider a significant impact or ignored reasonable alternatives, a judge can halt the project until a more thorough review is completed. This is a powerful tool for delaying or forcing changes to infrastructure projects.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, governs the cleanup of the nation’s most contaminated hazardous waste sites. Litigation under CERCLA is often focused on determining who is a Potentially Responsible Party (PRP).

Liability under Superfund is “strict, joint, and several,” meaning a company can be held responsible for the entire cost of a cleanup even if they were only responsible for a small portion of the waste, or if their actions were legal at the time. This leads to massive, multi-party lawsuits where corporations, past owners, and even transporters of waste sue one another to “allocate” the multi-million dollar costs of remediation

As companies increasingly market themselves as “sustainable,” “carbon neutral,” or “eco-friendly,” there has been a surge in greenwashing litigation. These are essentially consumer protection lawsuits often filed as class actions alleging that a company’s environmental claims are false or misleading.

For example, if a clothing brand claims its products are “100% biodegradable” but they actually contain synthetic fibers that persist in landfills, consumers may sue for deceptive marketing. These cases rely on the Federal Trade Commission’s (FTC) “Green Guides,” which provide the standard for how companies must substantiate environmental claims to avoid defrauding the public.

Climate change litigation is a rapidly evolving frontier. Traditionally, these suits targeted “Big Oil” companies for misrepresentation, but newer cases like Juliana v. United States have attempted to sue the federal government directly.

These “youth climate” lawsuits often argue that the government’s promotion of fossil fuels violates the plaintiffs’ constitutional rights to life and liberty, or the “public trust doctrine,” which holds that the government must protect vital resources for future generations. While many of these cases face uphill procedural battles regarding “standing” and “political questions,” they have succeeded in keeping climate accountability in the legal spotlight.

In environmental litigation, plaintiffs often prioritize Injunctive Relief over money. An injunction is a court order that forces a defendant to do something (like install air scrubbers) or stop doing something (like dumping chemicals into a creek).

Remediation refers to the physical cleanup of a contaminated site. If a plaintiff wins a remediation order, the defendant is legally required to restore the environment to a certain safety standard. This might involve excavating soil, treating groundwater, or restoring destroyed wetlands. Because remediation can cost billions, the technical details of the cleanup plan are often the most hard-fought part of the entire litigation process.

Environmental Justice (EJ) litigation focuses on the disproportionate impact of pollution on low-income communities and communities of color. These lawsuits often combine environmental statutes with civil rights laws, such as Title VI of the Civil Rights Act, which prohibits discrimination in programs receiving federal funding.

EJ litigation often challenges the siting of industrial facilities (like landfills or power plants) in marginalized neighborhoods. While historically difficult to win, there is a growing trend of courts and agencies requiring more robust “cumulative impact” analyses looking at how multiple sources of pollution combined affect a specific community rather than just looking at one factory in isolation.