On May 16, 2012, ELI convened a panel of experts to provide an overview and analysis of the tension between regulatory and common-law standards for injury in the context of toxic tort litigation. The speakers discussed and debated emerging trends in toxic tort litigation, including claims for property damage or medical monitoring regarding exposure to environmental contamination that never exceeds applicable regulatory standards.

On March 21, 2012, the U.S. Supreme Court decided the Clean Water Act (CWA) case Sackett v. Environmental Protection Agency. The Sacketts were private property owners in Idaho who had dredged and filled a portion of their property for future construction. As the property was near a navigable lake, the U.S. Environmental Protection Agency (EPA) asserted the Sacketts were in violation of §311 of the CWA, and issued a compliance order (Order) obligating the Sacketts to remove the fill or be subject to penalties of up to $75,000 per day for each day of noncompliance.

President Barack Obama’s 2011 State of the Union speech termed development of clean energy sources our “Sputnik Moment,” and called for 80% of the nation’s electricity to be generated from renewables, clean coal, and nuclear power by 2035. The message is clear: we need research, development and deployment of a new generation of energy technologies.

Professor Douglas Kysar’s article predicted plaintiffs’ difficulties for success in climate change public nuisance tort lawsuits since on every element—duty, proximate cause, breach, and injury—courts would have to stretch or overcome precedent in order to award relief. Undaunted by this sack of doctrinal lemons, Professor Kysar seeks to make lemonade and suggests climate-

The tort system was never envisioned as the cure for all of society’s ills, and it was certainly never intended to serve as a shadow version of the modern administrative state. Quite the contrary, tort law has always been understood and designed to address those disputes that are quintessentially private and local in nature, of the type that are most amenable to case-by-case

Professor Doug Kysar’s thought-provoking article cogently outlines an array of doctrinal and conceptual hurdles that climate-change plaintiffs face and notes the way in which tort’s focus on short-term solutions—its marginalist bias as Professor Kysar puts it—impairs its ability to address a variety of important issues. He then suggests that while climate change litigation may

Climate change is coming to the common law. Plaintiffs in several cases are pressing tort claims against carefully composed groups of greenhouse gas emitting defendants, seeking monetary damages and injunctive relief to lessen the threat and financial burden of climate change’s harmful impacts. Accordingly, the question of whether greenhouse gas emissions constitute an actionable tort, may soon receive judicial airing. But what might climate change suits do for tort law?

The precautionary principle is often cited to assure the public, in situations where decisions have to be made under great uncertainty, that safety is paramount. However, this blanket assurance comes at the cost of foregoing a potential public benefit associated with an alternative riskier decision. Those basing a decision on the precautionary principle might implicitly or subconsciously

Significant uncertainties exist on the climate side of the analysis. The key issue is how quantitative methods of economic analysis and risk management can help to make the best
possible decision given incomplete information. In other words, how can modern tools for economic analysis help policymakers process available information and make a decision that balances benefits and risks. The integrated assessment framework, described in this paper, provides a convenient analytical tool.

Our society has sophisticated techniques for analyzing risks that can be modeled and quantified. But other threats—often the most serious ones—do not fit the paradigm. These threats involve what the economist Frank Knight classified as “uncertainty” (where the likelihood of the peril is nonquantifiable) as opposed to “risk” (where the likelihood is quantifiable).