The Long-Term Tort: In Search of a New Causation Framework for Natural Resource Damages
68 Pages Posted: 27 Apr 2013 Last revised: 23 May 2014
Date Written: April 28, 2014
Recent scientific evidence is proving that toxic releases have long-term, unintended, and harmful consequences for the marine environment. Though a new paradigm is emerging in the scientific literature — one demonstrating that long-term impacts from oil spills are more significant than previously thought — legal scholars, regulators, and courts have yet to consider the law’s ability to remedy long-term ecological harms. While scholars have exhaustively debated causation questions related to latent injuries for toxic torts, they have overlooked the equally important and conceptually similar causation problems of long-term damages in the natural resource context. Likewise, only a few courts have considered the standards of proving causation for natural resource damages. They have not considered long-term injuries.
This Article provides a foundation for developing causation frameworks that respect the complexities of long-term ecological harms. Specifically, this Article uses scientific research to illustrate the causal difficulty of proving long-term ecological injuries. In doing so, it establishes the foreseeability of long-term injuries and the inadequacy of applying a traditional torts paradigm. Ultimately, this Article looks to toxic tort law and risk-of-injury cases for possible approaches to the causation challenges raised by long-term ecological injuries — these are challenges that, like latent toxic tort injuries, raise issues of time delay, aggregate exposure, synergistic effects, and multiple possible sources of harm.
Keywords: natural resource damages, environmental law, torts, remedies, damages, oil spills, causation, toxic torts
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