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Innovative Trends in Environmental Litigation: National and International Perspectives

Michael C. Donovan, Douglas W. Michaud, International Environmental Law for Natural Resources Practitioners (1997)

In modern environmental law, common law principles of equity and modern statutory constructs are becoming increasingly interwined. The challenge is to maintain a clear focus on the dynamic relationship between ever-evolving common law principles of equity and the often strict liability inherent in many modern environmental statutory schemes as they affect the rights and defenses available to private parties in environmental litigation. There is an emerging trend toward the recognition of common law equitable remedies within the interstices of and in the boundary areas between the modern, complex statutory schemes governing remedial environmental law. Today's environmental practitioner must be aware of the extensive dialogue that has developed and is continuing between modern statutory environmental law and its common law heritage.

In that the common law principles described in this discussion have been adopted, developed and modified primarily as a matter of state law, this discussion has not endeavored to provide a complete survey of the current status of the law in all states. Rather this discussion focuses the emerging trends from a national perspective, while recognizing that the laws of specific states may vary to a greater or lesser degree and that specific state statutory schemes will preempt the common law in that state to differing degrees. Notwithstanding the