William & Mary Environmental Law and Policy Review


Jill E. Evans


Application of the rule of repose to environmental contamination claims for trespass and nuisance will preclude recovery for plaintiffs who discover the harm or injury outside the repose period. The rule of repose is subject neither to the discovery rule or other equitable tolling devices and runs from the date of the defendant’s culpable conduct. As a consequence, the rule extinguishes claims regardless of accrual of the cause of action. Environmental plaintiffs suffering property damage are particularly vulnerable to the repose bar as harm can occur over many years through the migration of unseen contaminants. Operation of the rule of repose within the construct of trespass and nuisance law, which includes the doctrine of continuing trespass or nuisance, offers an opportunity for environmental plaintiffs who can demonstrate a continuing course of conduct to circumvent the repose bar without subverting the rule’s primary purpose of bringing certainty to stale claims. Key, however, is the identification of the defendant’s act which will trigger the running of the rule. This Article analyzes several different points at which the defendant may be said to have acted in both singular and continuing conduct and the impact on both the plaintiff and the repose period. The Article proposes that continuing tort theory can help to rebalance the equities between plaintiffs and defendants, and opens the door to a more rational expansion of the pool of resources dedicated to the costs associated with environmental contamination.