Environmental and Toxic Tort

Introduction

Nowadays, hundreds of people suffer from toxic torts and environmental pollution. However, they face the considerable challenges in proving that their injuries and environmental damages were caused by the exposure of harmful substances. Creation of the links between the actions of defendant and the problems of prosecutor is considered to be the central problem in the environmental and toxic tort law. Additionally, it should be mentioned that the understanding and proving of such connections are different in two types of law. The current work will provide the description of environmental and toxic tort laws making the emphasis on the causation evidence for showing the existing challenges of such legislature and ways of overcoming them.

Literature Review

The current research paper investigates toxic torts and environmental causations. The definitions of toxic tort actions, toxicity, and toxic tort law were presented in the work of Robert Blomquist. The broader description of the given definitions was given by Lynda Collins and Heather McLeod-Kilmurry. However, both works did not provide the classification of toxic torts and environmental causations. The appropriate information was taken from the works of Andrew Liption and Steven Baicker-McKee, Shawn Drayer, and Chris Helms. Moreover, there are some differences and similarities between environmental causations and toxic torts noted by Harvard Law Review. The major similarity is that the causations refer to the damage to health and environment that is determined by the application of environmental and tort laws and regulations mentioned by Casmere et al. The existing legislation contains some issues, which create difficulties in the establishment of links between the actions of defendant and the damage caused to prosecutor. The ways of solving the issues and the future trends are discussed in the work of Sanne Khudsen. Moreover, the current research paper outlines the insurance policy concerning the given matters. The information about environment impairment liability insurance was taken from the law review prepared by Thomas Mielenhausen.

Methodology

The information used in the process of the current work preparation was gained by means of searches in the Internet with the use of the following keywords: toxic tort, environmental causation, insurance, and environmental laws. The search was connected with such challenge as lack of the up-to-date information concerning the searched topics. The majority of sources were older than 10 years. However, the current research paper is based on old and modern sources, which provide relevant information. The sources are official web-sites and peer-reviewed journals. It enables the providing of reliable coverage of the topic and making relevant outcomes. All the information is presented in the coherent and understandable manner. 

Analysis and Discussion of the Information

Toxic Tort Causation 

In the majority of toxic torts, one of the biggest issues is the determination of the problem causation. In the cases of toxic torts, a plaintiff needs to provide evidence that toxins in some substance caused harm to environment or human health, and such harm would not took place if the toxins hadn’t been put in the substance. 

The additional attention should be paid to the fact that environmental issues and various health problems, which often occur from toxic exposure (for example, cancers and breathing or respiratory problems) may not be easily traced back to the cause. For example, if the person is diagnosed with throat cancer, the one can argue that it was caused by drinking of the contaminated water. However, there are no definite causations of the illness, because there are various potential causes. That is why, the defendant can make the emphasis on the fact that the person did not know the real exposure to the toxins, which made the person sick. Such situation shows the problem of the majority of toxic tort cases. The exceptions are represented by the asbestos cases, because this substance causes mesothelioma that can be developed only after the asbestos exposure. One more distinct feature of such cases is that diseases may not show up for a long period of time after the occurrence of real exposure. David Goguen also noted the following: “the more time and distance between the incident and the injury, the harder it is to prove a direct link”. As a result, it is hard to prove that drinking of the contaminated water 10 years ago could lead to the development of the breast cancer today.

Such example shows that the link between the behavior of one party and the harm cause by this action to another party is the vital part of the legal doctrines. The link is also known under the name causation. The given term may refer to various distinct concepts. Hence, the court may analyze the causation in different ways, even if the reflections of the injury are similar. That is why, courts adapt the differences between specific and general causation for the application in the toxic law in order to clarify the standing analysis and avoidance of “prematurely deciding merits questions in environmental suits”. 

Tort Law

Toxic tort law deals with issues caused by and associated with toxic substances. The examples of such substances are pesticides, industrial chemicals, paints based on lead, etc. The law is considered to be the subset of Personal Injury Law.

Toxic claims are brought by individuals or groups of people who were “exposed to dangerous substance and suffered injuries and damages due to this exposure”. The majority of toxic claims are based on the following evidences: the exposed substance is dangerous or toxic and it can influence and caused harm to plaintiff. Much attention should be paid to the place of exposure and the situation in which harm was caused. At the current moment, there are five types of toxic tort claims: consumer product claims, pharmaceutical claims, environmental, home, and workplace (occupational) claims. The first type of claims refers to the situations when consumers were affected by purchased products, which contained hazardous materials. Pharmaceutical claims concern the unintended side effect of the medication. Situations in which people were injured by toxins from water or soil refer to environmental exposure. Moreover, people may be injured during the close contact with the household goods, such as formaldehyde-treated wood. The last type of toxic exposure concerns the exposure by dangerous toxins in the working place.

Robert Blomquist in his work provides the specific legislative explanations of toxic tort actions as actions which involve plaintiff who claims “actual or potential physical injuries, emotional distress, property damages, and economic losses, which were caused by substances in the air, ground, and water”. The additional attention should be paid to the legislative explanation of toxicity as “the capacity of a chemical to produce injury or harm”. The understanding of toxic tort law was generated in 1979. It is represented by the following statement: “a collection of common law decisions, statutory provisions, and scholarly expositions about the legal consequences of harmful and potentially harmful substances in the workplace and in a work-setting”.

At the current moment, there exist numerous acts and laws which concern toxic torts. The current work will provide the short description of both local and national actions of legislators and existing laws concerning toxic torts on the territory of the USA. For example, in New York, the issue of toxic tort is rather sharp after the events at Love Canal. The events dated back to 1942 when the Hooker Chemical Company started dumping of chemicals and poisoned wastes into Love Canal. The contamination of the neighborhood became evident and documentary registered only 30 years later. The lawsuit was performed in 1979. The payment of compensations from the settled lawsuits lasted till 1985 due to the change of the company ownership, which dumped the industrial wastes into the canal. 

It is notable, that the given case formed the background for the development and passage of federal legislation concerning toxic torts. In 1972 the special Clean Water Act was established for the protection of the surface water quality. In 1978, New York State and local government agencies were obliged to consider environmental impacts equally to the economic and social factors during making the decision. Moreover, they facilitated the development and enforcement of the Comprehensive Environmental Response, Compensation, and Liability Act (also known as CERCLA or Superfund) in 1980. The act imposes taxes on companies engaged in production of chemicals and petroleum. Additionally, it provided broad direct respond of Federal Authority to releases, which endanger or may endanger environment or the health of people. In 1986, the act was amended by the Superfund Amendments and Reauthorization Act. The amendment increased the involvement of the state authorities in the negotiation of pollution issues and raised the focus on environmental issues and problems of human health. Among other notable legislatures are Resource Conservation and Recovery Act, Clean Air Act (concerning the emission of harmful substances in the air), and Clean Water Act. 

Toxic Tort Law can be considered as the case law because in each particular case judges make decisions based on the evidences and distinct characteristics of the case. There are numerous examples of such cases concerning various matters, such as the necessity of medical monitoring (Ivory v. International Business Machines Corporation) and household asbestos exposure (Kesner v. Superior Court, Haver v. BNSF Railway Co). Judges may increase the potential liability due to the severity of harm caused to employees, like it was in the case of Tooey v. AK Steel Corp. or held that asbestos-related claims of long latency fit an exception to the exclusivity bar provided by the Illinois Workers’ Compensation Act, like it was in the case of Folta v. Ferro Engineering. 

Specific Causations

As it was mentioned above, causation is considered to be the central problem of the toxic tort cases. Such aspect is considered confusing and complicated. At the current moment, there are two types of causations: general and specific. It should be noted that the resolution of both types of the issues “depends almost entirely upon expert opinion testimony”.

The first type refers to the matter whether the substance in the toxic tort case can cause the harm to people’s health “as a general matter without regard for the facts of the case at hand, and, if so, by what route of exposure and at what level of exposure”. There can be various routes: inhalation, dermal contact, etc. The level of exposure can be reflected as the doze response. The specific causation refers to the cases when such questions are asked: Was the individual exposed to an amount of substance that would be sufficient to have caused the illness? Was the individual actually exposed to the toxins? Was the individual exposed to an extent or the manner of the toxins that would be sufficient to have caused the harm to the health?

The evidence that the substance in question can lead to harm of people can be proved by using various methods. The first method is represented by clear medical testimony from experts that link the illness (or the harm) with toxins. Additionally, plaintiffs may use the evidence of the harmful substances exposure in the first place. It may be represented by records or pictures. The last method is the high rate of similar incidents or illnesses of people within the particular location. 

The next step of the toxic tort case is represented by the necessity of the degree and the manner of the harm establishment, which proves the harm the substance actually caused. The additional attention should be paid to the necessity of determination of the individual’s “actual level of exposure before recovery is available”. Such evidence can be provided in the form of official surveys with concrete figures of exact level of exposure or reports, which will be enough for reasonable person to make a conclusion that the exposure may cause harm to individual’s health. 

Insurance Coverage

The current work will provide the description of environment impairment liability insurance. It concerns insurance policies, which are directed on coverage of claims for cleaning-up costs and damages caused by the contamination, as well as the ones occurred away “from the policyholder’s designated premises as a result of conditions at the designated premises”. At the current moment, two types of insurance coverage are established for the great variety of purposes. The first type of insurance is premises environmental impairment liability insurance. It is developed for the location-specific hazards (like biological and pharmaceutical waste) and property owners (owners of facilities where such hazards are stored). The second type of insurance is contractors’ environmental liability insurance. It refers to the hazards, which can be characterized as operation-based, for example, hazards which can occur at working place. Usually, such coverage includes the issue of damage caused by the release of harmful substances, such as smoke, gas and waste. Moreover, it incorporates the associated official fines and expenses on cleaning up. Some of insurance policies even include expenses on attorneys and court costs. 

The general environment impairment liability covers damage to property and people’s health caused by the release of harmful substances into air, water, and ground. It includes three basic components: compensations for damages which are awarded by courts, mandated clean-ups which are required by officials, and voluntary clean-ups (in case of possible and imminent risks of further harm to health or environment). The additional attention should be paid to the fact that insurance policies often include the retroactive data, because toxic torts and environmental pollutions can be detected a long period after the actual release took place.

Environment impairment liability policies do not cover every event that can lead to harm to health or environment. Normally, such policies exclude damage that was caused by naturally occurring substances. Intentional damages and damages which could be anticipated are not covered by the insurance companies. Moreover, damages to the insured property or to health of insured workers are excluded from such policies.

Environmental Law

The environmental law of the USA is represented by the legal standards, which were developed for the protection of people’s health and environment. There are various sources of such standards, including: regulation regimes passed by Congress, federal regulations, judicial decisions, and common law. It should be noted that the importance of regulation regimes and federal regulations is equal. The work of Congress concerning the environmental pollution and toxic torts is represented by the establishment of the Environment Protection Agency, and regulations concerning conservation of water resources and power, public lands, etc. At the current moment, there exists a great variety of statutes, which regulate various sides of the environment protection. The examples of such statutes are the following: Energy Policy Acts, Federal Land Policy and Management Act, Mineral Leasing Act, Clean Water Act, Clean Air Act, Safe Drinking Water Act, Nuclear Waste Policy Act, etc. 

The current environmental law was also influenced by the decisions of federal and state juries concerning environmental issues. Such people provide the resolving of controversy concerning the application of the established laws and regulations. The common law usually concerns the tort issues.

Comparison between Toxic Tort and Environment Causations

Toxic tort and environmental causations have numerous differences and similarities. The first refers to situations, which lead to individual’s injuries (physical injury) caused by exposures of toxic substances. Such situations may be caused by various dangers: toxic materials at working place, discharges of harmful substances into the environment, etc. Moreover, “dismissal of a toxic tort case for lack of causation is typically based on whether the plaintiffs have presented sufficient evidence on causation, after standing has been established”. Environmental causations are usually represented by matters that cause harm to the environment or violate existing environmental regulations and statutes. It is usually analyzed as the component of some particular enactment. Environmental causation “has been forced into jurisdictional standing analysis…which results in a significant and sometimes inappropriate barrier for environmental plaintiffs”.

There are numerous similarities between toxic torts and environmental causations. Both of them cause harm. In both cases the defendant has “created sold in the marketplace, or discharge into the environment an injurious substance”. Such substance can be represented by wastes of harmful agents, drugs with unknown effect, etc. The investigation and evidencing of both causations in the majority of cases require advanced research with numerous technical and factual determinations for the establishment of links between the injury and the exposure. Moreover, toxic torts and environmental causations are determined by judges in the majority of cases. 

Future Trends

The future trends in toxic tort and environmental causations are closely connected with the development of the concrete framework of the determination of links between the exposure of harmful substances and damage caused to health and environment. It can be performed by the establishment of standards dealing with proving causation for natural resource damages and long-term injuries. There are numerous challenges for the realization of such strategy: latent character of injuries and damages, delays in addressing the issues, effects of synergy, multiple sources of harm, and aggregate exposure. The new framework should overcome such issues. It can be performed by application of a contributing factor test and risk-of-injury analysis. Moreover, it should correspond to the existing laws and regulations. 

As per personal understanding, considerable changes concerning the development of more concrete understandings and ways to prove the toxic torts and environmental causations should take place in the future. They will be directed on the determination of long-term damages by using the combination of approaches: surveys, tests, mathematic and physical models, biological and chemical investigations. In addition, such frameworks would become more detailed and oriented on establishment of links between the exposure and damage in particular industry, for example, maritime or oil production. Such idea is based on the understanding that damages in some particular sphere have similar backgrounds and consequences. 

Conclusion

In conclusion, it should be noted that the current work provides the definitions, explanation, differences, and similarities of toxic torts and environmental causations. The environmental and tort legislature and the insurance were discussed in the central part of the research paper. The additional emphasis was made on providing evidences regarding links between the actions of defendant and the damage of prosecutor. It is considered to be one of the major issues of the exiting legislature. The future trends are directed on the mitigation of the given issue by the establishment of concrete frameworks and ways of representing evidences.