The Long-Term Tort: In Search of a New Causal Paradigm for Natural Resource Damages
Sanne H. Knudsen
University of Washington - School of Law
April 26, 2013
Northwestern University Law Review, Forthcoming
University of Washington School of Law Research Paper No. 2013-13
Scientific evidence is mounting regarding the persistence and significance of toxic releases in the marine environment. Though a new paradigm is emerging in the scientific literature – one that demonstrates long-term impacts from oil spills are more significant than previously thought – legal scholars have yet to consider the law’s ability to remedy long-term ecological harms. In particular, though substantial scholarly attention has been given to the causal difficulties of proving latent injuries for toxic tort and mass product liability cases, scholars have generally not considered the similar problems that are emerging in the natural resource damage context. Likewise, only a few courts have considered the issue of proving causation for natural resource damages. Those that have examined the issue have taken a fairly cursory glance and have not considered long-term injuries or the oil spill context.
This Article provides the academic foundation for a new paradigm for long-term ecological remedies. Specifically, this is the first Article to give significant scholarly attention to the challenge of recovering natural resource damages for harms that do not manifest until years after an oil spill. Using science to illustrate the causal difficulty of proving long-term ecological injuries, this Article establishes the foreseeability of long-term injuries and the inadequacy of applying a traditional torts paradigm. Ultimately, this Article looks to tort law to propose a new causal paradigm that solves the systemic challenges of recovering damages for long-term ecological injuries.
Keywords: natural resource damages, environmental law, torts, remedies, damages, oil spills, causation, toxic tortsAccepted Paper Series
Date posted: April 27, 2013
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