Deciphering the chemical soup: using public nuisance to compel chemical testing.

• Author: Lin, Albert C.

The problem of toxic ignorance plagues modern society. On a daily basis, each of us is exposed to hundreds of chemicals, the vast majority of which have been subject to little or no testing to determine whether they are toxic to humans or the environment. Many of these chemicals may turn out to be harmless. Some, however, may cause cancer, reproductive defects, and other harms. In toto, chemicals are believed to be responsible for tens of thousands of deaths per year. The systematic failure of manufacturers and distributors to test chemical substances is a rational response to marketplace incentives, tort liability rules, and existing chemical regulations. To address the problem of toxic ignorance, this Article proposes the recognition of a new type of public nuisance to compel chemical testing. In contrast to conventional toxic tort litigation, which requires a showing of physical injury, the failure to test itself would constitute a public nuisance. Inadequate testing puts the public health at risk, and the resultant lack of information undermines the ability of governments and individuals to protect public health. In addition to explaining the basis for applying public nuisance doctrine to the failure to test, the Article also examines practical considerations relating to how courts would enforce the duty to conduct testing.

INTRODUCTION I. THE PROBLEM OF TOXIC IGNORANCE A. Background B. Incentives Not to Test C. Tort Law Exacerbates the Ignorance Problem 1. The Duty to Test 2. Difficulties in Enforcing the Duty to Test D. TSCA Makes Matters Worse 1. TSCA Does Not Require Toxicity Testing 2. TSCA Creates Disincentives to Test 3. The HPV Challenge Program Has Done Little to Bridge the Data Gap II. ARTICULATING AN ENFORCEABLE DUTY TO TEST IN PUBLIC NUISANCE DOCTRINE A. Public Nuisance Doctrine B. Applying Public Nuisance Doctrine to the Failure to Test C. An Alternative Public Nuisance Theory Centered on the Right to Information D. Litigating Public Nuisance for Failure to Test E. Other Proposals 1. Liability Without Causation 2. Statutory Reform III. WHAT MIGHT A DUTY To TEST REQUIRE? A. Toxicity Testing Methods in General B. In Vitro and In Vivo Testing 1. In Vitro Methods 2. In Vivo Methods C. Applying the Duty to Test in Specific Instances CONCLUSION INTRODUCTION

We live in a chemical soup. On a daily basis, each of us is exposed to hundreds of chemicals, the vast majority of which have been subject to little or no testing to determine whether they are toxic to humans or the environment? Many of these chemicals will turn out to be harmless, but others will have detrimental or even devastating effects that will become apparent only with the passage of time. The problem of toxic ignorance is widely recognized, yet legislatures, regulatory agencies, courts, and the chemical industry have done relatively little to address the problem. Without analyzing the risks posed by chemicals before they become widely distributed, it is difficult to determine the precautions that should be taken or the scope of any health and environmental problems that may result. Experiences in which we have discovered the hazards of chemical substances belatedly--ranging from asbestos to benzene to polychlorinated biphenyls (PCBs)--illustrate the potentially broad and serious consequences of toxic ignorance. (2)

Uncertainty is a constant companion in scientists' efforts to understand the phenomena occurring around us, and the field of toxicology is no exception to that principle." (3) Rarely do we know as much as we would like to know about cause-and-effect relationships. Yet the level of toxic ignorance that surrounds us is not the inevitable result of the limits of scientific inquiry. Rather, it is the consequence of deliberate decisions by the chemical industry and by those who incorporate chemicals into their manufacturing processes to avoid testing that would identify at least some of the likely harms.

A regulatory mandate to conduct comprehensive testing is one possible response to the problem, but such an approach would meet formidable political resistance. It might also require significant resources and drive useful chemicals from the market. In the absence of such a mandate, this Article proposes the use of public nuisance litigation for attacking the toxic ignorance problem. Part I of the Article explains the problem of toxic ignorance and identifies various economic and legal disincentives for chemical manufacturers to conduct toxicity testing. In response to this problem, Part II proposes the recognition and use of a public nuisance action against chemical manufacturers, processors, and importers for the failure to test chemical substances. Finally, Part III examines the important practical question of how courts might enforce the duty to test against chemical companies; this section describes various methods of toxicity testing and suggests guidelines for courts to consider.

1. THE PROBLEM OF TOXIC IGNORANCE

   1. Background

      According to some estimates, chemical exposure is responsible for tens of thousands of deaths per year in the United States. (4) Nonetheless, we have surprisingly little information about the health and environmental effects of the thousands of chemicals that we use on a daily basis. (5) A 1998 Environmental Protection Agency (EPA) study of toxicity data on high production volume (HPV) chemicals--those three thousand or so chemicals imported or produced in the United States in a volume of over one million pounds per year--found no toxicity information publicly available for nearly half of the chemicals identified. (6) For only a handful of these chemicals--seven percent--was a full set of basic toxicity information available. (7) While voluntary efforts in the last decade have sought to collect or generate more information on the potential toxic effects of HPV chemicals, significant information gaps remain. (8) Toxicity data is even more lacking for the 80,000 or so non-HPV chemicals found in commerce today. (9)

      Expert panels and government agencies have decried the lack of toxicity testing, (10) and even the chemical industry has acknowledged the wide information gap. (11) Hundreds of new chemicals enter the flow of commerce each year, exacerbating the situation. (12) With the commercialization of nanotechnology, a rapidly developing field that is creating substances with new physical and chemical properties and often unknown toxicological effects, the information gap threatens to expand into an information chasm. (13)

      Toxicity information is essential to EPA, the Occupational Safety and Health Administration, and other regulatory agencies whose mission is to protect public health and the environment. The absence of toxicity data hampers these agencies' ability to carry out basic regulatory tasks such as conducting risk assessments, developing safety guidelines, setting regulatory standards, defending regulations from legal challenges, and warning the public about potential hazards. (14) Ultimately, the information gap leaves the government unable to protect the public and the public unable to protect itself.

      Lack of toxicity information undermines the tort system as well. Ideally, toxic tort claims further social goals of compensation, deterrence, and corrective justice. (15) Injured plaintiffs receive compensation for their harms, potential defendants are deterred by the threat of liability, and those entities responsible for plaintiffs' harms are required to restore plaintiffs to their original position. (16) In reality, however, environmental toxic tort plaintiffs are frustrated by gaps in knowledge regarding causation, risk, and harm. (17) Often the most significant of these obstacles is causation. (18) Toxicity testing has the potential to generate information on the ability of a chemical to cause illness, but the lack of such testing often prevents plaintiffs from establishing a prima facie case. Even when the available data is sufficient to support a regulatory response, it is usually insufficient to support a finding of causation in an individual tort case. (19) In these cases, courts often require proof that exposure to a chemical doubled the plaintiff's risk of harm, or they may demand particularistic proof of a causal connection. (20) Magnifying the difficulty of the task faced by toxic tort plaintiffs, the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (21) established a rigorous standard for admitting scientific expert testimony. Daubert made clear that federal trial judges must serve as gatekeepers for scientific testimony by examining for themselves the reliability of the methods underlying expert testimony. (22) The application of Daubert in toxic tort cases has led many courts to reject proposed expert testimony, particularly that proffered by plaintiffs, as too unreliable in light of scientific uncertainty and incomplete scientific knowledge. (23)

   2. Incentives Not to Test

      The toxic ignorance problem is the unsurprising result of rational decisions by chemical manufacturers not to conduct extensive testing. (24) Our legal system generally assumes that chemicals are "innocent until proven guilty"; we restrict chemical manufacture and distribution only if and when harm is demonstrated. (25) To make matters worse, the system largely excuses manufacturers from having to produce toxicity information, and as described further below, even gives manufacturers incentives not to test. In theory, government agencies, consumer organizations, and others can step in and perform toxicological research on their own. These actors, however, rarely have the resources to do so. (26) In addition, they may not be able to access the information needed to conduct safety testing because of trade secret claims by manufacturers. (27) Consequently, society relies heavily on chemical manufacturers to do the testing themselves. (28)

      Manufacturers have the greatest...