"A Civil Action:" Torts, Environmental Law, and the Right to be Free from Externally Imposed Harms

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A Civil Action book cover

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.

Posted by Victor B. Flatt on Wed. July 24, 2013 10:00 AM
Categories: Book Club


RE: 'A Civil Action:' Torts, Environmental Law, and the Right to be Free from Externally Imposed Harms
Proof of causation seems to be, by far, the most complex and burdensome issue faced by plaintiff lawyers in these types of tort cases. In this one specifically, the difficulty is compounded by the fact that, at the time, there was no scientifically proven link between exposure to TCE and the development of Leukemia. At the halfway point of the book, it appears that link is beginning to be established through the extensive medical studies commissioned by Schlictmann's team. By sparing no expense on the research and through sheer tenacity, they are responsible for furthering the scientific and medical understanding of what effects these industrial chemicals can have on humans. Although motivated by personal gain, this seems like a very noble and important role that these lawyers are playing in society. I'm interested to find out more about lawyers and lawsuits acting as catalysts for scientific discovery. There is no doubt that without the possibility of an extremely high payoff, the impetus and financing for this caliber of research would have been much harder to come by. This leads me to the conclusion that the tort reformers' goal of limiting defendants' financial liability has the potential to greatly limit scientific progress as well.
Posted by Kirin Walsh on Wed. July 24, 2013 11:41 AM
RE: 'A Civil Action:' Torts, Environmental Law, and the Right to be Free from Externally Imposed Harms
So CERCLA and RCRA require that contributors of hazardous waste to a location pay for the cost of clean-up and remediation of that site, but do not allow the EPA to levy punitive fines over and above the cost of clean-up, correct? I take it that would be the domain of torts? Also, Professor Flatt, I want to be sure I understand TSCA correctly. What you're saying is that the assumption behind that law is that chemicals are 'innocent until proven guilty' for the purposes of allowing them into the stream of commerce? Or more precisely, they are assumed to be not harmful until they are shown to be 'potentially' dangerous to human health? Or to put it more crudely, not until people start getting cancer and bodies start piling up are chemicals deemed unfit for commerce under TSCA? Does anyone else find that frightening? I can't think of a better illustration of how commerce gets privileged over human health and well-being in our culture.
Posted by Corey Frost on Thu. July 25, 2013 8:59 AM
RE: 'A Civil Action:' Torts, Environmental Law, and the Right to be Free from Externally Imposed Harms
Dear Corey, You have it exactly right. Damages from hazardous waste are the domain of torts. (this includes property damage which ironically is much easier to prove than damages to humans…all you have to show is the the property lost value…very easy with contamination)… You are also right about TSCA. If it is any consolation…TSCA (and Federal Insecticide Fungicide and Rodenticide Act (FIFRA)) are outliers in environmental law…in fact they are not really environmental laws at all but product in commerce laws (like with food and drugs under the USDA) that happened to be administered by the EPA. There is discussion about this problem and proposals to change them. --Victor B. Flatt
Posted by Allison L. Reid on Thu. July 25, 2013 9:30 AM

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