Beyond Tort: Compensating Victims of Environmental Toxic Injury
University of California, Davis - School of Law
Southern California Law Review, Vol. 78, No. 6, 2005
Environmental toxic tort cases often pose difficult problems of proof: a substance's toxicity may be unknown or uncertain; a combination of factors may cause a plaintiff's injury; and the injury may arise many years after exposure to a toxic substance. While some plaintiffs - particularly those with "signature" illnesses or whose illnesses occur as a cluster of cases - can gather sufficient evidence to support a tort action, it is likely that many victims of environmental toxic injury simply fail to recognize their illnesses as such. Cancer and various respiratory ailments, for instance, can result from exposure to commonly found and commonly released pollutants. Because of the difficulty of identifying potential defendants and proving causation, such cases simply fall outside of the tort system, leaving social costs uninternalized and victims uncompensated.
In response to this problem, this paper proposes a risk-based administrative system of liability and compensation for exposure to environmental pollutants. At the time pollutants are released, major pollution sources would pay levies based on the amount of pollutants, the likely exposure of persons to the pollutants, the incremental risk of harm due to such exposure, and the expected costs of such harm to the victims. Individuals would receive compensation according to the incremental health risk borne by each individual as a result of pollution exposure. The advantages of a compensation-for-risk approach include: avoiding troublesome case-by-case determinations regarding specific causation; and providing compensation prior to injury, which can facilitate preventive or mitigative measures. Although the scientific information necessary to support such a system is not yet available, advances in toxicogenomics, biomonitoring, environmental monitoring, and other fields will permit implementation of such a system in the not-too-distant future.
Number of Pages in PDF File: 108Accepted Paper Series
Date posted: November 13, 2004
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