From Volume 78, Number 6 (September 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 plaintiffs injury, and the injury may arise many years after a plaintiff’s exposure to a toxic substance. On the one hand, some plaintiffs, particularly those with “signature” illnesses or whose illnesses occur as a cluster of cases, may be able to gather sufficient evidence to support a tort action. On the other hand, it is likely that many environmental injury victims simply fail to recognize their illnesses as tortious injuries and never receive compensation. Cancer and various respiratory ailments, for instance, can resultfrom 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. This leaves social costs externalized and victims uncompensated.
In response to this problem, this Article proposes a risk-based administrative system of liability and compensation for exposure to environmental pollutants. At the time pollutants are released, major pollution emitters would pay levies. The levies would be based on the amount of pollutants discharged, the likely exposure of persons to those pollutants, the risk of harmfrom that exposure, and the expected costs of that harm to the victims. Individuals would receive compensation according to the health risk borne by each person as a result of their exposure to the pollution. This compensation-for-risk approach avoids troublesome case-by-case determinations of specific causation. This approach also provides compensation prior to illness, which may facilitate preventive measures. Although the scientific information necessary to support such a system is not yet available, advances in toxic ogenomics, biomonitoring, and environmental monitoring will permit implementation of such a system in the not-too-distantfuture.