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Slinde Nelson

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Slinde Nelson

Environmental claims and defense strategy Part 2: Legal standard and burden of proof

As we discussed in our first article of this three-part series on standing for environmental claims, lawsuits require certain protocols. Those who do not follow these protocols are unlikely to have their lawsuit move forward. One of the first is standing, which has some unique requirements when it comes to environmental claims. The next that warrants discussion are the issues of legal standard and burden of proof.

These issues are broken down into two different paths depending on if the issues are moving forward based on criminal or civil liability.

Path 1: Criminal liability

The legal standard for criminal liability involves some level of intent. The alleged offender must generally know of the violation for criminal liability to apply. The Environmental Protection Agency (EPA) for example, will generally only investigate violations that are viewed as “knowing violations” of the law. Examples include disposing of pollutants into a river without a permit or failing to install required air pollution control devices.

These are serious, often rising to the level of a felony. The plaintiff bringing the allegations would need to satisfy the “beyond a reasonable doubt” standard to move forward with a successful case. This is a very strict standard. There must be no question of legal wrongdoing for this type of case to succeed.

If convicted, an accused individual can face required restitution or repayment to the government for cleanup expenses as well as compensation for harm caused by the violation. Additional penalties can include a monetary fine as well as possible incarceration.

Path 2: Civil liability

Legal standard here is strict, meaning the simple fact of a violation is enough to satisfy this requirement. There is no concern over whether the alleged offender knew of the regulation at issue. This does not require a conscious or informed decision to violate the law. An honest mistake or accident that led to the violation can still result in civil liability.

To build a case, the plaintiff would generally need to meet the preponderance of the evidence standard. This is not as strict as the standard used for criminal liability. It essentially means that the evidence available is convincing and more than likely to be true. It is generally satisfied if there is more than a 50% chance the evidence supports the allegations.

If the plaintiff builds a successful case, the accused can face a monetary penalty as well as additional injunctive relief. This can include actions that are required for the individual or business to come into compliance with the regulation at issue as well as additional actions to help improve or cleanup the environment.

Real life application

These types of issues can impact all levels of business — from initial business formation and land development to operations to future expansion plans. A violation can result in serious setbacks, extending to potentially include criminal liability. As a result, businesses facing such accusations are wise to act promptly and get a jump on the process so you can work towards an efficient resolution while protecting your business’ viability.