In my last posting, I told you that when I read “A Civil
Action” the first time, it really started me thinking about the relationship
between torts and environmental law, and also the whole basis for torts and
other common laws in general.
At the time that the action takes place in the book, the
Environmental Protection Agency and many states were first starting to really
apply hazardous waste laws (CERCLA and RCRA) to real-life situations. When you finish the book, you will learn that
the EPA and Massachusetts later conducted a clean-up of the Woburn site. Both
CERCLA and RCRA require the contributors of hazardous waste to a location to
pay for cleaning up or remediating a site so that there is no longer risk of
increased health consequences to humans or the environment. These laws, passed
in 1976 and 1980, were based on the power of Congress to “regulate interstate
commerce,” a very important power that you will learn more about in law school.
Public health is an interstate commerce issue and the reach of the companies
that dispose of wastes (and the wastes themselves) also cross state boundaries.
CERCLA and the clean-up parts of RCRA are both considered to
be “strict liability” statutes in that the government doesn’t have to prove
“fault” of the contributing companies, only that they put the waste there, and
that the waste is or is “potentially” dangerous to human health. This gets one
over the hurdle of causation that is present in torts when trying to tie a
particular waste disposal to a particular harm to a person. You don’t have to
prove it caused harm, just that it “could” be dangerous to human health, a much
easier burden to meet. In such a case any scientific uncertainty can swing to
the benefit of the exposed. (“We cannot prove that this waste caused this harm,
but you cannot disprove that this waste did not or could not cause harm.”)
Thus the primary difference between common law torts and
these laws with respect to hazardous waste is that the burden of proof as to
whether something caused something else is shifted. In torts, the plaintiff has
the burden of showing that the action caused damages, in the case of CERCLA and
RCRA, the regulated entity (the “defendant”) has the burden of showing that
they did not cause the harm. Most
environmental laws similarly place a burden on parties to show that they will
not harm others. One major exception is the Toxics Substances and Control Act
(or TSCA), which allows chemicals to go into the stream of commerce unless they
are shown to be harmful. This is why there is uncertainty about the safety of
many products as discussed by Ms. Weller in her comment to my last post. There
has been discussion about changing this burden, and in Europe and California
the burden works the other way.
Do these new environmental laws help us avoid the problems
that developed in Woburn where there was possible harm to the residents there?
Not fully. If used properly, of course, it helps avoid future problems because
the waste should be rendered unable to cause harm. However, both statutes
explicitly avoid requiring waste disposers to pay damages to those who have
already been exposed, primarily because to do so would get back to the original
issue of showing that “a” caused “b,” which we know is difficult to do from the
straightforward torts case. Thus, these laws, and many other environmental laws
are “prospective,” they are designed to prevent harm, not to compensate for
harm when it occurs. Note that the whole torts system when operating properly
can also be said to prevent some
harms because it provides an incentive for persons and companies to conform
their behavior so that they do not have to pay damages.
I will end by noting the timing of the emergence of
environmental laws and how it helps illuminate the whole purpose of torts and
the common laws. As I mentioned in the last post, hazardous waste exposure only
became an issue after the development of the modern chemical industry,
post-World War II. Torts could have evolved to deal with this, but the
fundamental nature of the causation made it difficult for it to change so
quickly. Thus, our modern environmental laws follow the possibility of this harm
by a mere couple of decades. The common law could not work to protect the
public so the legislature intervened. This also illustrates that tort law is
designed to protect a person’s right not
to be unreasonably harmed. A principle that can be preserved with causation
concerns only by preventing the harm as much as possible (thus our
environmental laws).
I think of this as a very important concept. Our
Anglo-American common law system does and should protect our rights, rights in
property and rights in bodily integrity. I know you are all looking forward to
learning more about this as the next year starts.