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Emerging Trends in Environmental Litigation: What Attorneys Should Know

Environmental enforcement is a moving target.  I began my career in the insanity of Superfund litigation where cost recovery actions were driving down the profits of companies while increasing the bottom line of law firms.  Those days are gone.  But environmental regulation still lives, and is increasing in certain respects.

The global community is becoming more environmentally conscious — and we’ve witnessed a remarkable shift in public perception as well as legal precedence on environmental issues, compared to just a few decades ago.

Within this positive shift, complexities and challenges are sure to arise, especially at the intersection of sustainability, business and community interests.

Environmental litigation, and going into a hiatus, is now back gaining traction as a legal niche, as various stakeholders grapple with pressing environmental hazards, polarized yet evolving public opinions, and regulations aimed at guiding us towards a more sustainable future.

Legal professionals in this field must remain informed about emerging trends to effectively address issues and advocate for their clients.

Let’s delve into four of these emerging trends:

Climate Change Litigation


With increasing evidence of the impact of climate change, stakeholders are turning to the legal system to hold polluters accountable for greenhouse gas emissions. Climate litigation can involve claims ranging from constitutional law to human rights violations, and lawsuits targeting corporations and government agencies for inadequate climate action are shaping the legal framework surrounding environmental issues even as we speak.

 

Environmental Justice Litigation


Advocates are increasingly using the litigation process to address environmental inequalities and advocate for marginalized communities disproportionately impacted by pollution. These lawsuits challenge traditional practices and policies, shedding light on the intersectionality of environmental and social justice issues.

 

Emerging Technologies


New tools and information play a pivotal role in transforming environmental litigation. Remote sensing, data analytics and machine learning provide powerful tools to gather evidence and support legal arguments. Technology, from satellite imagery to advanced algorithms, enhances attorneys’ ability to address complex environmental disputes.

 

PFAS

PFAS (Per- and polyfluorinated alkyl substances), also known as the Forever Chemicals, are a large chemical family of over 10,000 highly persistent chemicals that don’t occur in nature and are a hot topic in environmental litigation.  US EPA has called PFAS “an urgent public health and environmental issue.”  It has been reported that over $11 billion in PFAS settlement occurred in 2023, and this may just be the tip of the iceberg.  The MDL (multi-district litigation) lawsuit in South Carolina may just be the beginning of holding manufacturers of PFAS responsible.  I expect significant additional litigation both inside and outside the MDL, including increased consumer class actions.

Evolution and Context

As this legal landscape evolves, attorneys must adapt their strategies accordingly. In today’s world, attorneys must also consider the broader societal and political landscape surrounding environmental issues. Increased public scrutiny and legal accountability are pushing stakeholders to address environmental concerns and comply with regulations like never before.

 

Embracing the Multifaceted Nature of Environmental Law

The intersectionality of environmental law with other legal areas presents unique challenges and opportunities.

Public awareness and concern are driving demands for stronger environmental protections, and collaboration among stakeholders — attorneys, environmental advocates, scientists, and policymakers — is essential for addressing complex environmental challenges and promoting sustainability and justice.

Understanding these interconnected domains is crucial for effective advocacy in these areas, and the legal environment in this area is just as dynamic and complex as the natural one it represents.

Do you have questions regarding environmental litigation? Please feel free to reach out. I’m here to provide legal guidance and discuss the future of environmental sustainability in the legal realm.

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