I must begin with a disclaimer — one which I hope will not forfeit my place in the program. Although this section of the program is entitled "Industry Perspectives," the perspective I offer is my own. While I have followed the subject so as to advise the oil and chemical industries, the views and opinions I have evolved in the process would be no different had I been studying the subject in my former role as General Counsel of the Environmental Protection Agency. So I am afraid I will not be able to sidestep personal responsibility for what I have to say.

My remarks are addressed solely to the federal legislation which has been introduced — virtually all of which goes well beyond the 301(e) Report — and not to be Report itself. And my remarks are limited to the subject of compensation for non-occupational diseases. Occupationally related diseases and injuries raise different issues and involve unique relationships. They have traditionally — and properly, I believe — called for and been accorded different treatment than that applied to rights, responsibilities and liabilities among strangers.

In the short time that I have, I can only give you my bottom line evaluation, free of the qualifications and exceptions necessary to make any firm conclusion appear reasonable. My bottom line evaluation is this: the tort law system, the present mechanism for remedying 301(e)-type injuries, is expensive; it is burdensome; and it is unfair — in some respects to plaintiffs and in other respects to defendants. But, as is often said of our political system, while it is not the perfect system, it is the best anyone has yet devised to deal with most, although not absolutely all, of the problems we are discussing.

At the outset I want to remindyou what it is we are comparing with our tort system. Most of the federal legislation now pending would create the following additional remedies to supplement those already available under existing tort law:

(1) A federal tort remedy — available to anyone who can show she or he has an injury of a type which may be caused or contributed to by a substance, that the defendant may be the source of such a substance, and that the plaintiff was exposed to it;

(2) A federal fund, available to claimants who can make the kind of showing just described. (In the case of most pending legislation, the fund would be financed by the oil and chemical industries.) The fund in turn would be subrogated to the claimant's rights (under either state tort law or the new federal tort law described above) against any party.

An individual could use any one or all three of these remedies (the two new remedies plus existing state tort remedies) to seek compensation for injuries caused by exposure to hazardous substances.

Before explaining my conclusion, I have two preliminary comments: (1) To the extent that these legislative proposals are premised — as Senator Stafford suggested last night that they are — on the unavailability of state tort law for "environmental torts," I want to assure you that Milwaukee v. Illinois and Middlesex County Sewerage [14 ELR 10122] Authority v. National Sea Clammers Association notwithstanding,¹ hundreds of millions of dollars are being paid right now and have been paid to individuals suffering real, potential or merely perceived damages as the result of spills, leaks and emissions which are covered by a host of federal laws. There are some artificial barriers to legitimate recovery in a few states, it is true, and I think these should be removed. But they are the exception and not the rule, and they are not, by and large, Sea Clammers or Milwaukee II. It would certainly come as a great surprise to my clients to learn that these cases relieve them of common law tort liability for leaks and spills. Their experience proves the contrary.²

One point that everyone does agree on is that a lot of money is wasted in dealing with "toxic torts." The transaction costs involved hurt both plaintiffs and defendants. Unfortunately, the remedies in the federal bills do not improve that situation; they make it worse.

Certainly we can all agree that we need a compensation system that is fair and effective. Perhaps we can eventually agree as well that we should choose one system and make that system work well. It need not be universal. Certain specific categories of wrongs or diseases may warrant specific and different remedial systems. But there is no good reason for making three nonexclusive, nonelective remedies available to the same individual for the same injury at the same time. Instead of reducing expense and delay, this multiplication of remedies may instead increase them. Which system should it be?

As many of today's speakers have already emphasized, the problem for both plaintiffs and defendants is our insufficient knowledge about categorical cause and effect relationships. In other words, we are generally unable to attribute a disease or a category of diseases to a particular source or a single category of sources. To state it otherwise — with very few exceptions, we are not able to say: "You have heart disease, you must have been exposed to X or have eaten Y" or, "You have melanoma, you must have consumed A or been living next to B." Rather, it appears that there may be many single causes or combinations of causes for any one individual's chronic disease.

The critical issue, then, is how a compensation system deals with these generic uncertainties.³ In these circumstances, I believe that any system must, to some extent, ultimately tilt either toward compensation and away from prevention or toward prevention and away from compensation. Which is the best way to tilt is a societal judgment — and good arguments can be made both ways. But it should be beyond argument that the judgment, whatever it is, should be made with a clear understanding of the quid pro quo involved.

My judgment, when I listen to the tragic situation Khris Hall and Senator Stafford describe, is that while compensation and cleanup are important goals, the single most important objective is to eliminate or at least substantially reduce the incidents and the injuries that have caused so much concern and that prompt these federal bills. So I evaluate these proposals first and foremost in terms of their ability to accomplish that last and most important objective: preventing environmental injuries from occurring at all. I do not think this objective is incompatible with compensation of the group of people now injured; not at all. But if some limited trade-off is indeed required between compensation and prevention, I would opt to give up some compensation if the effect of doing so were to buy better health and safety in the future than does the alternative.

I believe that a system designed to prevent injury requires two basic components:

(1) It must allocate responsibility to those who are responsible. The argument which Leslie Cheek makes in his paper and which, therefore, I will not repeat here is persuasive to me. I believe, as he does, that the tort system is truly conduct-affecting in a way that a fund or a system which does not allocate blame to those who are in fact responsible and whose conduct caused the injury is not and cannot be. I see the accuracy of his remarks on a daily basis in my practice. Clients who ask what to do with a particular product, waste or emission usually mean by that question to ask: (a) What does the law require? and (b) What more do I have to do to avoid liability? The easiest answer to the second is — don't hurt anyone. Businesses spend a lot of time and money trying to achieve that objective — a great deal more, in many cases, than is spent merely complying with regulatory requirements. And it is not necessary to rely on such laudable characteristics as "good will" and "good citizenship" as motivators of such conduct. It is the only sensible dollars and cents business judgment. Injury or damage which a business causes costs it money — a lot of money. As a result, it is worth spending a lot of money to avoid causing injury, and businesses do so.

(2) The system must identify and make fully liable those who actually cause present injuries. I certainly agree with Jim Tozzi that smoking and diet are the principal causes of [14 ELR 10123] cancer deaths and probably of many other chronic diseases. The vast majority of scientists tell us so. That certainly does not lead us to conclude that we should therefore do nothing about those cases that may be attributable to environmental factors. The problem, however, is not determining whether environmental factors and toxic substances represent two percent or twenty percent of these diseases, but rather which two percent or twenty percent, which individuals, and which substances, in what form, in what use? Until we can answer those questions, we cannot make progress in reducing the present number of such injuries and diseases — whatever it is — to one which approaches zero.

Whether you agree or disagree with the cancer death statistics Jim Tozzi cites, the fact remains that with a very few important exceptions we do not have simple, single explanations for the causes of cancer or other chronic injuries that can be applied across the board to individual cases. Until we can establish these causal relationships, we cannot effectively reduce the statistics — whatever they are.

This morning, Dick Stoll criticized the federal bills as unfairly taxing one industry for 100 percent of the diseases when it is responsible for only a fraction of those diseases. My criticism is slightly different in perspective. It is that we cannot truly eliminate the cause of an individual's or a neighborhood's disease unless we first identify that cause. Simply paying off the individual through an undiscriminating industrial tax does not advance that purpose.

There have been many references in these two days to asbestos. Asbestors is — fortunately in some ways and unfortunately in others — almost unique in the world of toxic substances because it is one of the few substances to which certain diseases have been clearly attributed by a body of recognized and accepted scientific data. If we are to succeed in preventing future injuries and death, we will have to identify other causal relationships such as those now established between asbestos and mesothelioma and certain lung cancers. When we can say of a particular disease, as we are told we can of mesothelioma, that the chances are 85 or 90 or 95 percent that any particular incidence of that disease was caused by a particular substance or exposure — when we can clearly and confidently link source and disease — then a fund financed by the source or sources of the disease may well be a fair and efficient way to compensate those injured. But such a relationship has been demonstrated for only a tiny fraction of chronic diseases and injuries. It makes little sense to me to use such a system when we can identify cause categorically with a confidence of only two, five or ten percent.

Senator Stafford referred last night to the Japanese victims' compensation fund. It is important to note that the Japanese fund is limited to those situations where an established relationship exists between a particular disease or diseased population and a particular source or group of sources. The Japanese law also provides expedited recovery from responsible parties for four designated diseases. Although additional diseases can be designated, none have been so designated in the ten years since the law was passed — probably because a clear causal relationship must be shown between diseases and sources, and such relationships have not been identified since. You may be interested to know that the data relied upon by the Japanese to establish causation were, for the most part, epidemiological. (In fact, the name of one of the designated diseases, "Minamata," is the name of the Japanese town in which it occurs.)

But our problem is much more difficult that the problem posed by Minamata disease. It is what to do in the vast number of instances where no such definitive relationship has been established, either by substantial circumstantial evidence or otherwise, between an entire disease or diseased population, as in Japan, and a particular source or group of sources.

Leukemia is an example.We know that benzene inhaled in extremely high concentrations over a prolonged period of time causes leukemia. But that is not relevant to the experience of human beings today. And it is not the history of the vast majority of leukemic patients — although most of us are exposed to benzene for some small period of time in a minimal concentration and usually in combination with other substances. Does this alone allow us to draw any conclusions about the cause of a particular individual's leukemia? No, it does not. The same question can be asked and the same answer given for dozens and perhaps hundreds of substances to which we are exposed every day — substances that are an important part of our lives and that most of us would not want to give up without obtaining some benefit from doing so. The problem is that we cannot yet, as we have with asbestos, make gross judgments about the causal relationship between most cancers and other chronic diseases and individual substances or categories of substances in the forms in which people are exposed to them.

Until we know enough to put other substances in the category of asbestos and perhaps tobacco, or other diseases in the category of mesothelioma and lung cancer, we must deal with uncertainty. I believe that in these uncertain circumstances the tort system works best to identify those responsible and provide compensation to those injured. Litigation is a factfinding process. In that process, toxicologists and other experts can look at a specific situation and opine that in that particular combination, concentration, use and circumstance, a chemical or other substance in a product, in water, in the air or soil probably was or was not a cause or the cause of a particular individual's disease. And a judge, jury, or hearing officer can evaluate the credibility of those opinions and the significance of particular facts. That is exactly what happens in most cases brought in state courts under the tort system. Until we have enough information to make categorical judgments about substances and diseases, that system allows us to arrive at the best answer in each particular case and gradually to draw more categorical and general conclusions.

We need those answers to prevent future harm. We need them in order to allocate blame, which in turn prevents future harm and also provides a source of compensation. Finally, we need those answers in order to remove from our homes and environments those substances and practices that do harm and to preserve the benefits of those that do not.

1. Senator Stafford appears to take the position that under Milwaukee v. Illinois, 451 U.S. 304 (1981), 11 ELR 20406 ("Milwaukee II") and Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981), 11 ELR 20684, state tort law is generally unavailable to plaintiffs injured by environmental releases and that, while there is federal tort law, that tort law is preempted by the Clean Water Act, 33 U.S.C. § 1251 et seq., ELR STAT. 42121 et seq. The Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 9601 et seq., ELR STAT. 41901 et seq.; the Comprehensive Environmental Response, Compensation, and Liability Act, Superfund and other comprehensive environmental statutes. While he is partly correct as to the second proposition, there is no basis for the claim that those cases support preemption of state "environment tort" law. Instead, the cases address the continued viability of federal common law following amendments to the Clean Water Act and the Marine Protection Research and Sanctuaries Act. Indeed, the Court in Milwaukee II expressly noted that the states remain free to establish regulatory standards more stringent than those provided under federal law either by statute or through state common law tort actions (Milwaukee v. Illinois, 451 U.S. at 328, 11 ELR at 20412).

2. Their experience makes them equally skeptical of the assertions that tort law generally poses unfair or insuperable barriers to recovery for injuries caused by toxic emissions. In that connection, you should remember that at least two courts in this country, one in California in a DBCP case [Arnett v. Dow Chemical Co. (N.J. Super. Ct., March 31, 1983), Unpublished Memo. & Order, Dkt. No. 729586], and one in New Jersey in a case involving contaminated drinking water [Ayers v. Jackson Township (Cal. Super. Ct., February 23, 1983) Unpublished Order, Dkt. No. L-5808-80], have allowed a jury to award damages to plaintiffs who were unable to demonstrate they had contracted a disease, were unable to show an increased likelihood of contracting a disease, and whose sole demonstrated injury was fear of contracting a disease — "cancerphobia." These cancerphobia claims are appearing with increasing frequency throughout the country.

3. I say "generic" uncertainties because, in analyzing the facts of any particular individual's disease, the cause and effect relationships may be clear but the fact of the disease is not itself sufficient to identify the cause.

14 ELR 10121 | Environmental Law Reporter | copyright © 1984 | All rights reserved