Being Small in a Supersized World: Tackling the Problem of Low-Level Exposures in Toxic Tort Actions

• Date: 01 July 2014

44 ELR 10630 ENVIRONMENTAL LAW REPORTER 7-2014

Being Small in a

Supersized

World: Tackling

the Problem of

Low-Level

Exposures in

Toxic Tort Actions

by Jean Macchiaroli Eggen

Jean Macchiaroli Eggen is Distinguished Professor of

Law, Widener University School of Law-Delaware.

Summary

Low-level toxic tort claims are challenging traditional

tort notions of injury and causation. Low-level expo-

sures form the basis of claims in both environmental

contamination cases and toxic product liability actions

and may involve exposures below thresholds set in

government health and safety standards. Establishing

injury-in-fact and causation is especially problematic in

low-level toxic tort claims due to latent harms, multiple

defendants, and scientic uncertainty. In addition, the

courts increasingly are asked to address whether rele-

vant government standards should be accepted as legal

thresholds that would bar plaintis’ claims when the

defendant is in compliance with the standard. Tradi-

tionally, tort law has treated compliance with govern-

ment standards as evidence of proper conduct, but not

as a defense to suit. Courts today struggle with these

issues and have applied various rules in individual cases.

Although tort law and government regulation seem to

be at odds, courts should seek a middle ground that

values both. is Article explores the doctrinal under-

pinnings of the problem of low-level toxic tort claims,

the various approaches undertaken by the courts, and

the goals that should form the basis of a solution.

I. Def‌ining the Issues

Large-scale releases of hazardous substa nces into the envi-

ronment generate numerous legal issues and receive exten-

sive media attention. But the most vexatious issues often

arise from low-level releases and exposures, which lead to

harm incrementally and after the passage of time. ese

small exposures have caused some supersized problems for

the judicial system. Whether the ca se involves environ-

mental contamination or products liability, low-level toxic

tort claims challenge the fundamental basis of tort law in

injury and causation.

e term “low-level exposure” has no single meaning in

toxic tort law and has become an umbrella term for several

exposure scena rios. In asbestos cases, for exa mple, it may

be used to encompass the chronic low-dose exposures over

time that are capable of causing latent illness. is mean-

ing extends to other products, such as drugs inge sted over

time and chemical exposures in the workplace or other

environments. In environmental contamination cases, the

term “low-level” may be used to indicate exposures below

a regulatory sa fety threshold. Furthermore, low-level toxic

tort claims often involve multiple defendants, adding ques-

tions of risk contribution to the broader issue of liability.

Both tort law and government regulation serve impor-

tant public health and safety purposes. Indeed, matters

related to public health and safety traditionally have been

allocated to the states under their police powers, except

where federal interests may be so strong that the U.S.

Congress has intended federal law to supplant state law.1

is is par ticularly pertinent where Congress has chosen

to include a saving clause in a federal statute. For example,

when Congress enacted the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA)2

in 1980, it declined to include a mechanism for providing

compensation to persons adversely impacted by a release

or threatened release of a hazardous substance as dened

under the Act. Congress instead included a clause expressly

saving a person’s right to pursue state common-law claims.3

Speaking about saving clauses, the U.S. Supreme Court

has noted that “occasional nonuniformity” between federal

standards and state standards “is a small price to pay for

a system in which juries not only create, but also enforce,

1. See Boyle v. United Techs. Corp., 487 U.S. 500, 511 (1988).

2. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.

3. CERCLA §310(h), 42 U.S.C. §9659(h) (2013).

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