"A Civil Action:" The Relationship of Torts to Environmental Law

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I was very pleased to learn that the book for entering first years at Carolina Law was “A Civil Action.” Like Professor Birckhead and many others, I first read this book over a decade ago, and it is a pleasure to read it again. I have perhaps had more of an interest in this book than even the other professors in the conversation because my primary area of teaching and scholarship is in environmental law, which is designed, in part, to control the effects of pollution on human beings. As you get to the end of the book, you will hear more about the parallel process of clean-up under federal environmental laws that is a complement to the tort case brought by Schlichtmann.

I am also a Torts professor, and the case described in a Civil Action is a torts case. Reading the book for the first time made me reflect a good deal on the relationship of torts to environmental law, and in fact inspired a vein of scholarship which I will discuss in my next blog.

All of you will have a Torts class this year, and it is my pleasure to give you a head start! A tort is a compensable wrong done by one legal entity to another. As you will learn in depth, there are four elements that must be met for a tort to occur. There must be a duty, a breach of that duty, legal causation (cause in fact and proximate cause) and damages.

As pointed out by one of the student comments this week, the biggest problem faced by Schlichtmann is proving causation. There are harmful chemicals that could be part of the water supply, which would constitute a breach of duty; but were those chemicals the legal cause, in particular a cause in fact, of the children’s leukemia? Did the toxic chemicals get into the children in some way, and did they in fact produce leukemia? Since each element of the tort must be shown as “more likely than not,” this is a difficult burden with scientific uncertainty. Historically, before the advent of the chemical industry post World War II, this is not a kind of uncertainty that earlier torts had to deal with. So should torts change? In some jurisdictions, there have been common law discussions of relaxing the causation rule to compensate parties for “cancer risk increase” or “partial” causation, but this is not the dominant view.

What then? Well, when the common law doesn’t work, a legislature may choose to intervene. This is where we get our suite of modern environmental laws, including the Resource Conservation and Recovery Act (RCRA) and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), which concern themselves with hazardous waste. However, both of these laws protect human health only in preventing exposure, not compensation for it (despite CERCLA’s title). So there is still an issue or problem.

In my next posting I will more fully explore one of the fundamental principles which I believe underlies tort law and how that influenced the creation and enforcement of environmental law. I will also look at what might have happened had this case come at a different time, in particular, after the imposition of liability under CERCLA for a clean-up.

Posted by Victor B. Flatt on Thu. July 18, 2013 3:57 PM
Categories: Book Club


RE: 'A Civil Action:' The Relationship of Torts to Environmental Law
Your post made me think of a connection between the Woburn case and other types of environmental risks present to consumers of all different kinds of products. Through the passion of a friend, I have learned throughout the last few years about the dangers of non-organic foods, chemical pesticides, genetically modified foods, and other potential risks that come with modernization of food. As many people are aware, studies are now showing that chemical included in or sprayed onto food are thought to cause a cancer risk increase. For example, high fructose corn syrup, a common ingredient in many modern foods, has been found to increase many types of cancers, including pancreatic cancer. It's interesting to see, however, that based on current torts law, people may not be easily compensated for such damages. To me this makes sense; some types of damages have a much clearer cause, such as faulty construction on a home. Consumption of food and increased risk of cancer would be much more complicated. How can we show scientifically that one such ingredient increases cancer risk? What happens when scientific studies conflict? Does one person's system react to chemicals, pesticides, etc in a different way than another individual? These questions complicate whether someone could have a torts claim against food companies using harmful ingredients, as even partial cause or an increase in cancer risk is hard to prove definitively. I also wonder, and can't wait to learn in my torts class, what impact plaintiff knowledge can have on torts cases. What if the food companies had no foreseeable way of knowing the negative impact of their ingredient choices? There are dozens of potentially harmful ingredients and chemicals that are approved by the FDA. Does governmental approval decrease liability for such companies? And what if, conversely, the consumer knows full well the risks associated with the use of product? Do they still have legal standing to sue for damages? With people still suing cigarette companies, it would appear so, although I would like to know more about how these types of cases are handled! I hope to, and I'm sure I will have the opportunity to, be able to think through these types of questions with more legal knowledge within the next year.
Posted by Alexandria Weller on Thu. July 18, 2013 5:20 PM

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