Environmental Contamination as Continuing Trespass

Article excerpt

     A. The Injury-Based Approach: The Colorado Supreme Court Looks to
        Abatability and Public PoKey
     B. The Conduct-Based Approach: The Louisiana Supreme Court Looks
        to the "Operating Cause" in Hogg v. Chevron
     C. Splitting the Difference: The Massachusetts Supreme Court
        Subscribes to a Conduct-Based Approach that Allows for
        Continuing Liability in Continued-Migration Cases
     A. The Conduct-Based Approach
        1. The Conduct-Based Approach Generally
        2. The Louisiana Conduct-Based Approach vs. the Massachusetts
           Conduct-Based Approach: Should Continued Migration
           Constitute "Conduct"?
     B. The Injury-Based Approach


Environmental contamination has been actionable as some form of trespass since the late medieval period) Despite this ancient lineage, modern courts in the United States are still at odds over the proper application of the common law tort of trespass to cases arising from industrial pollution. This Comment addresses one narrow aspect of contemporary environmental contamination trespass law on which courts disagree: whether the continued presence or continued migration of contaminants onto a plaintiffs land can establish a "continuing trespass" that will perpetually renew the cause of action so that it will not be time-barred by a statute of limitations.

How statutes of limitations are applied to environmental contamination tort claims is a matter of significance for a number of reasons, including the difficulty of discovering the contamination, the great costs associated with environmental remediation, and the societal concern of abating pollution without inappropriately punishing industry. Indeed, even in this modern era of comprehensive federal regulation of environmental contamination, the viability of common law tort claims remains significant because the federal regulatory regimes have generally preserved private common law tort claims, (2) and a private plaintiffs recovery under federal statutes may be more limited than the recovery available in tort. (3)

Courts generally agree that environmental contamination may constitute the tort of trespass. (4) The paradigmatic case, for the purposes of this Comment, is that of a defendant who has allowed a contaminant, like gasoline held in a leaking underground storage tank, to migrate onto a plaintiffs land. Courts disagree, however, as to whether the continued presence of contaminants on a plaintiffs land may constitute a continuing trespass that will not be time-barred by a statute of limitations. (5) Courts also disagree as to whether the continued migration of contaminants onto a plaintiffs land, absent a continued tortious leak or dumping activity, will constitute a continuing trespass. (6) The body of case law on these issues is somewhat confusing and not well developed, (7) a situation that has not been helped by, and in part may be a result of, a lack of guidance from commentators. (8)

In sum, there are two primary competing jurisprudential approaches to the problem of the continuing contamination trespass: the conduct-based approach and the injury-based approach. (9) Under the conduct-based approach, a trespass is only continuing where the tortfeasor perpetuates the injury through ongoing acts of trespass; the cause of action accrues upon the cessation of the tortious conduct. (10) The conduct-based view considers the contaminated state of the land to be the continuing effect of prior wrongful conduct," and the defendant's failure to remediate the contamination will thus not constitute continuing tortious conduct. (12) Under the injury-based approach, the classification of a trespass as continuing depends on the nature of the injury to the land, and a continuing trespass may be found even in the absence of continuing tortious conduct of the kind that caused the contamination. …