Strange Bedfellows? The Precautionary Principle and Toxic Tort: A Tort Paradigm for the 21st Century
Editors' Summary: This Article explores the relationship between the "precautionary principle," statutory regulation, and the law of toxic torts, with a focus on personal injury. The Article introduces the concept of precautionary environmental law through an analysis of the prevailing risk-based paradigm of statutory environmental regulation contrasted with a more precautionary, ecological approach. Next, it identifies the dominant injury-based paradigm in environmental tort law and concludes that if tort is to meaningfully contribute to environmental protection in the 21st century, a paradigm shift is in order. The Article next applies an "ecological paradigm" to the tort context, exploring the potential for a precautionary approach to the law of toxic torts. In particular, three proposals for precautionary reform in tort law are presented: a relaxation of the single cause-of-action rule; an increased use and liberal treatment of the tort of environmental battery; and the imposition of a reverse burden of proof on causation in environmental torts. The Article concludes that the adoption of such proposals is necessary both from the ecological perspective and in order to ensure that tort meets its core goals of compensation and deterrence in environmental cases.