Victims of pollution often come to my office discouraged. They have been told by other attorneys that their claims are too complex or too expensive to prove. Sometimes I agree with these attorneys, and decline to take the case. Sometimes I disagree, and take the case. Often, however, I agree and disagree—I agree that the case is not presently viable, but I believe that it can become viable, provided that the victims are willing to get to work. As I explain in these situations, there are certain things that any person damaged by pollution can and should do to improve the quality and financial viability of her case. Here are the four most important:
1. Complain to the Regulatory Authorities, Relentlessly.
Most people have done this already when they come to my office, but almost never enough, and never enough in writing. Any time that your property is polluted, you should complain to all of the relevant local, state, and federal authorities. This may mean, depending on the type of pollution, the local Conservation Commission and/or Board of Health, the Massachusetts Department of Environmental Protection (MassDEP), and the United States Environmental Protection Agency (EPA). You should call each of these agencies to find out which person to complain to, and his or her email address. Every time that your property is polluted, you should call and email that person to complain. You should then follow up—again, both by phone and email—asking what investigations have been done, and what enforcement actions have been taken. If no investigations have been done, ask when they will be done. If no enforcement actions have been taken, ask when they will be taken. If no enforcement action is planned, ask why. Do not stop calling, and do not stop emailing, until you get answers to these questions.
You may find this to be an extremely exasperating process. You may find that these agencies are not accustomed to explaining themselves to members of the public. You may find that your calls and emails are ignored. You may find yourself feeling like a pest. Stick with it, however, and your persistence will tend to pay off. Investigations will be made. Enforcement actions will be taken. These actions themselves will often be inadequate to stop or deter the pollution—a vague abatement order, for example, or a token fine—but they will be very valuable to you, as a private litigant, in proving your eventual case against the polluter.
2. Document the Pollution and its Effects, Exhaustively
An environmental damage case is usually a long story. Air, water, and hazardous waste pollution are typically recurring problems, and the damage that they cause is often delayed or gradual. For example, in a common water pollution scenario, a construction site situated by a stream will take inadequate erosion and sediment control measures. As a result, sediment will run off of the site during storms and pollute a downstream lake. Over time, this pollution will degrade the lake. It will promote the growth of aquatic weeds and algae. It will decimate or destroy populations of fish and other aquatic wildlife. This process, from the time that the pollution starts to the time that the degradation starts to become apparent, may take years.
To effectively record a long story such as this, the damaged party—that is, a person with property on the polluted lake—must be extraordinarily diligent and engaged. She should assume the role, and the mentality, of a documentarian. She should keep detailed notes on how and when the sediment pollution occurs, and what changes in the lake she observes over time. She should take both photographs and videos recording her observations. She should do these things methodically, and consistently, and exhaustively. She should think and act as though she is compiling material for a documentary that she will ultimately show to a jury. Much of the material that she complies will end up on the cutting room floor, but there is never any telling what material that will be. She must record anything and everything of conceivable value in proving the pollution, its causes, and its effects.
It is true, this documentarian’s approach is much easier advised than taken. It is grueling to document the process of environmental degradation, particularly when it is happening in one’s own back yard. It requires an almost preternatural degree of emotional detachment. It requires uncommon stamina. It is, however, critical to a plaintiff’s success in most environmental damage cases—first, because it enables the plaintiff to present a thorough and compelling case; and second, because the plaintiff’s dedication in documenting the problem will itself impress upon a jury the degree to which the pollution has concerned and damaged her.
3. Involve and Educate Your Neighbors.
In most pollution situations, there is more than one person being damaged. In a typical air pollution case, for example—think of an industrial plant venting noxious gases near a residential neighborhood—there may be hundreds or thousands of people who are affected. If you are complaining about the pollution, you are probably not the only one. Your neighbors may also be complaining. Or maybe they want to complain, but refrain from doing so because they feel powerless. Either way, talk to them. Knock on their doors. Hold a neighborhood meeting. Educate them about their rights. Organize them. The potency of your lawsuit against the polluter will increase in proportion to the number of people who join you.
4. Obtain Public Records.
You are entitled by law to obtain most documents possessed by governmental agencies. The Massachusetts public records statute is at M.G.L. c. 66, § 10. Its federal equivalent, the Freedom of Information Act (“FOIA”), is at 5 U.S.C. § 552. These statutes are very useful. Subject to certain narrow exceptions, you can use them to obtain virtually any document—including email—that has been generated or received about a polluting party by the EPA, the Massachusetts Department of Environmental Protection, a Board of Health, or a Conservation Commission. You will invariably find interesting information in these documents, particularly in the email correspondence. You will find out, for example, whether persons besides yourself have been complaining about the polluter. You will sometimes find significant admissions made by the polluter to the agency. You may find that the polluter has submitted false or misleading information to the agency. At the very least, you will develop an understanding of the dynamic between the polluter and the agency. Understanding this dynamic is critical to formulating an intelligent strategy for inducing the agency to enforce the law.
The process for making a public records request is very simple. FOIA requests can be made online. Requests to local and state agencies can be made by email. Call the relevant local or state agency and ask for the email address of the person who handles public records requests. In your email to that individual, specify that your request is made pursuant to the Massachusetts public records statute, M.G.L. c. 66, § 10. As for the content of your records request, you should frame it broadly enough to cover any conceivable material of interest concerning the given polluter. A typical request, for example, will ask for “all documents that have ever been received or generated by [the agency], including but not limited to email correspondence, that relate in any way to [the polluting facility].” You should request that any fees for the production of the documents be waived (under both FOIA and the Massachusetts statute, fees are presumptively charged); and that otherwise, you be informed of the amount of fees before the documents are produced.