Is the ‘Act of God’ Dead?
Washington Journal of Environmental Law & Policy, Vol. 7, No. 2, 2017
21 Pages Posted: 19 Aug 2017 Last revised: 25 Aug 2017
Date Written: 2017
In more than twenty years with the U.S. Environmental Protection Agency (EPA) before joining the legal academy, I saw many communities affected by fires, floods, hurricanes, earthquakes, and other natural disasters. However, I never saw a case where the act of God defense prevailed against environmental liability. Confirming this personal experience, I later learned that the number of reported cases where the act of God defense had prevailed against environmental liability, under all statutes and all federal circuits, was also exactly zero.
This raises two obvious questions: (1) why does the act of God defense so often fail? and (2) if the act of God defense has never succeeded in court, does the act of God defense really mean anything today? This essay will attempt to answer both questions. For many good reasons, many legal scholars have suggested that the act of God defense should be effectively retired as it is no longer relevant to our modern world where the hand of Man may be seen behind every “natural” disaster. As submitted by Professor Denis Binder more than twenty years ago, “[t]he time has come to recognize the act of God defense for what it is: anachronistic...” Without rejecting these scholarly criticisms, this essay endeavors to find some life and value remaining within the act of God defense. In particular, the act of God defense, as currently provided within federal environmental law, may provide a viable incentive for industry and other actors to take reasonable precautions in order to save lives, protect the environment, and otherwise avoid or mitigate the impacts of natural disasters.
Keywords: CERCLA, Environmental Disaster, Environmental Law, Act of God
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