Tuesday, August 8, 2017

Tort and environmental regulation

Douglas Kysar recently posted "The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism", which, among other things, takes issue with the supposed inability of tort law to deal with complex environmental issues; or as the New York Court of Appeals put it in the leading case of Boomer v. Atlantic Cement Co., "the judicial establishment is neither equipped... nor prepared to lay down and implement an effective policy for the elimination of air pollution".

Kysar argues that "rather than common law litigation being displaced by more sophisticated regulatory approaches, the latter instead may well have depended on the former for their sophistication", and backs up his claim with a case study (in order not to spoil the suspense in his article, after the jump):

In Renken v. Harvey Aluminum (Incorporated), 226 F. Supp. 169 (1963) (there are a number of reported decision in this dispute), the plaintiffs (after much interesting drama) won a judgment ordering the polluter to install specific pollution control technology. Later, Kysar reports, the plaintiffs' lawyers were turned to for their expertise in implementing the "best available technology" standard at the heart of federal environmental legislation.

Judge John F. Kilkenny
Judge Kilkenny of the Federal District Court of Oregon did not, Kysar writes,
let the potential “publicness” of the issues distract him. His opinion remains tightly focused on the particular relationship of wrongdoing at bar and he does not fret over whether the remedy ordered could more effectively be promoted through legislative or administrative means. Such a focus is critical, for tort law and regulation are complements rather than substitutes—an idea all too often forgotten in the debate over how best to govern the causes and consequences of environmental, health, and safety threats.

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