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Unjust Enrichment in Environmental Litigation

46 Pages Posted: 30 Jun 2011  

Allan Kanner

Kanner & Whiteley, LLC

Date Written: 2005

Abstract

Unjust enrichment, used here in the sense of a restitutionary remedy for tortious misconduct (a disgorgement), should play a larger role in environmental and toxic tort litigation. Its current limited role owes to the fact that contemporary legal education generally ignores equity, resulting in lawyers understanding little about the concept. This is troubling because unjust enrichmentis in theory - and could be in practice - a superior remedy in many pollution cases involving private parties generally and public trustees in particular.

The doctrine of unjust enrichment embodies the equitable principle that “a person shall not be allowed to enrich himself unjustly at the expense of another.” It also rests on another equitable principle that “whatsoever it is certain a man ought to do, that the law supposes him to have promised to do.”

Unjust enrichment confronts the profitability of pollution. Polluters’ opportunistic behavior is revealed by evidence that states with different enforcement regimes exhibit different rates of pollution, even from the same companies, indicating that polluters tailor their pollution control efforts to the minimum standards required by each state’s laws.

Unjust enrichment does many things. For example, it shifts the cost of pollution back to polluters who choose to subject their neighbors to pollution, and who often refuse to clean it up quickly. If polluters are forced to pay only the relatively low fairmarket value (FMV) of the polluted property, they receive a de facto subsidy to pollute. Unjust enrichment cancels this subsidy. More important, unjust enrichment may be available to support communal remedies to harms for which recovery currently is difficult under private or public law approaches.

The novel harms created by pollution sometimes require innovative remedies. Equity, unlike law, is well suited to shaping such remedies. The classic example arises from the exposure of innocent individuals to dangerous pollutants. Although such exposure will inflict real harms upon some people in the future, what is to be done in the near-term for the larger group of exposed individuals? The New Jersey Supreme Court, among others, answered this question by fashioning the equitable remedy of medical monitoring.

In most site-remediation and natural resource damages (NRD) cases, one of the underlying causes of action will sound in tort. The threshold question, then, is whether the particular jurisdiction allows a restitutionary remedy in tort. Part I addresses this issue. In addition, Part I explores the types of detriments (if any) a plaintiff must suffer before bringing suit, as well as the nature of the defendant’s enrichment. In pollution cases, the defendant’s enrichment generally is not direct. It is indirect, or negative, if the plaintiff suffers some lesser loss, or if the defendant’s enrichment comes from the savings that results where the defendant uses, but does not otherwise damage, the plaintiff’s property. Part II explores the issue of unjust retention by examining the shortcomings of tort remedies as well as the connection between the defendant’s enrichment and the wrong suffered by the plaintiff. Part III addresses whether states or Indian tribes acting as public trustees may pursue unjust enrichment remedies in the context of pollution-damage litigation, especially in NRD cases.

Suggested Citation

Kanner, Allan, Unjust Enrichment in Environmental Litigation (2005). Journal of Environmental Law & Litigation, Vol. 20, No. 111, 2005. Available at SSRN: https://ssrn.com/abstract=1874832

Allan Kanner (Contact Author)

Kanner & Whiteley, LLC ( email )

701 Camp Street
New Orleans, LA 70130
United States
504-524-5777 (Phone)
504-524-5763 (Fax)

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