Toxic Tort Litigation in a Regulatory World

Abstract

Times change and problems change, and the question for us is to define the respective roles of public and private law in dealing with our environmental problems. Private law, and especially the law of torts, has developed to meet the relatively novel brute facts and challenges of the modern petrochemical age. As we moved from a world filled with sticks and stones to one with processed hydrocarbons and enhanced radiation, our responsibilities to our neighbors, workers and trading partners likewise shifted. These developments tracked changes seen and documented in private law and torts at analogous historic moments when the law has moved, albeit slowly, to meet new challenges, such as the advent of industrialization, the automobile, franchising, and mass marketing.

That tort law develops in incremental ways in response to a changing world is not news. Nor is it much debated that, under appropriate circumstances, such developments, including those involving environmental and toxic torts, have been consistent with the common law tradition. Nor is it disputed that tort law works.

What is significant for our purposes is that what has animated these changes in tort law, and toxic tort law especially, is both different from what drives public law regulation of the environment, and instructive as to the importance of a continuing role for toxic tort litigation in a world increasingly dominated by public law. Indeed, it may well be that the processes and value of private law are superior in certain respects to public law as it relates to environmental regulations. Specifically, the tort litigation process embodies certain ideals and methods that we associate with better decisions of a certain type than the ideals and instrumentalities of the regulatory process would allow.

The types of decision best left to tort certainly concern the one-on-one relations of everyday living. For example, a landowner should be allowed to sue an oil and gas operator for damages done to his or her property. In some instances, mass tort class actions may also be appropriate, such as where the polluted site sits under a discrete neighborhood. Subject always to the requirement of fairness and efficiency, the same result may be true when someone sells a dangerous substance to numerous public schools.

These examples, and others discussed below, in each case produce a result that seems satisfactorily linked to the strengths of the tort process. Of course, an examination of the connection between a process, such as the tort system, and the legitimacy of its results is by no means novel. Much can and has been said about the relative merits of the civil justice process and public law administration in resolving various types of problems. Whether certain modes of mass tort adjudication, and extant case management problems, may undermine this superiority of tort is hotly debated and must be considered carefully. What we find is that much of this debate, about the forms and limits of tort, is being ignored in decisions about implied preemption and requested stays of civil law suits in favor of administrative forums. More important, few legislators or regulators take seriously enough the option of doing nothing or less in response to a problem that can be dealt with satisfactorily at common law. These shortcomings stem often from a lack of understanding about tort.