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The Common Law Impetus for Advanced Control of Air Toxics

January 1999

Citation: 29 ELR 10003

Issue: 1

Author: Rolf R. von Oppenfeld, Eric L. Hiser, William C.B. Underwood

Editors' Summary: Although the Clean Air Act is the primary tool used for controlling air toxics, the dramatic increase in toxic tort cases brought under common-law theories such as nuisance, trespass, negligence, and strict liability for ultrahazardous activities has raised concern in the industrial community that compliance with regulatory requirements may not protect industry from large-scale toxic tort liability. This Article analyzes the implications of common-law liability on the selection of air quality controls. First, the Article presents an overview of technology-based regulatory requirements and identifies some inherent shortcomings in the regulatory framework, illustrating the public's dependence on state common law to redress injuries from air pollutant exposure. It then provides a brief overview of the theories underlying these common-law tort actions. The Article further examines the evolution of toxic torts, identifies typical barriers to recovery under traditional tort law, and highlights developments that have eased the burden on plaintiffs and that may encourage more toxic tort litigation. The Article concludes that the prudent decisionmaker should consider both regulatory standards and potential common-law liability when selecting air pollution controls.

The authors are members of the "Team for Environmental, Science, and Technology" Law (TESTLaw) Practice Group, a national environmental law practice within the law firm von Oppenfeld, Hiser & Freeze, P.C. Rolf R. von Oppenfeld is one of the firm's principals and practices primarily in the areas of environmental law and litigation, natural resources and water law, and toxic tort litigation. Eric L. Hiser leads the firm's regulatory practice, assisting companies with designing corporate air permitting and compliance strategies, and regularly lectures on air quality issues. William C.B. Underwood is an associate in the firm's Western Regional Office and practices in the area of environmental law and litigation.

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