unable to conclude harm more likely than not

Transcription

1 1 Approaches to Environmental Protection 2 Reserve Mining Co. v. EPA 514 F.2d 492 (8th Cir. 1975) 3 Mining byproducts containing Asbestos discharged into Lake Superior 4 Dist.Ct. ordered immediate halt to discharges would have required facility to close 5 Issues: whether ingestion, as opposed to inhalation posed health hazard 6 whether hazard sufficient to justify permanent injunction 7 Lack of scientific evidence re risk 8 court concluded asbestos fibers "creates some health risk unable to conclude harm more likely than not i.e., substantial evidence 9 Whether showing of harm sufficient to satisfy Clean Water Act 1

2 10 fed. govt authorized to abate discharges in interstate waters which endanger the health & welfare of persons 11 Appeals Court found evidence satisfied Clean Water Act danger to public health requirement satisfied 12 Appeals Court held plant closing unnecessary, balancing equities 13 Reserve willing to spend $243 million for safer disposal 14 cost of harm to public & industry 15 Reserve given reasonable time to stop discharging wastes into Lake Superior 16 In assessing probabilities of harm it cannot be said that the probability of harm is more likely than not 17 level of probability does not readily convert into prediction of consequences 18 Here, can not forecast drinking Lake water will result in cancer increase 19 Best can be said, asbestos contaminant in air & water gives rise to reasonable medical concern for the public health 20 ergo, public exposure creates SOME health risk contaminant should be removed 2

3 21 FWPCA sec "endangering" 22 Congress used term in a precautionary or preventive sense 23 ergo, evidence of potential harm as well as actual harm within purview of statute. 24 Congress has generally geared national environmental policy to allowing polluting industries reasonable time to make efforts to conform to federal standards 25 Dist.Ct. abused its discretion by immediately closing plant public risk potential, but not imminent or certain 26 Reserve earnestly seeking practical abatement of pollution 27 Remedy should be fashioned which will serve ultimate public weal by insuring clean air, clean water, and continued jobs in industry vital to nation's welfare 28 Industrial Union Dept. AFL-CIO v. American Petroleum Institute 448 U.S. 607 (1980) 29 OSHA regulation of benzene, known carcinogen 3

4 no known safe level of exposure 30 Occupational Safety and Health Act more vague than Clean Water Act or Clean Air Act provide safe, healthy place of employment 31 Secretary of Labor set permissible worker exposure 1 part per million (1 ppm) considered lowest feasible level 32 OSHA estimate of compliance cost $226 million capital investment $200 million start-up cost first year $34 million in annual costs 33 OSHA estimate 35,000 workers would benefit from regulation 34 Industry: OSHA "reasonably necessary or appropriate for healthful employment required cost-benefit analysis 35 Secy: required to impose standards to guarantee workplaces free from any risk of material health impairment, 4

5 however small as close as possible, without ruining entire industry 36 Appeals Court (5th Cir.) struck down reg. OSHA statute implicitly required cost-benefit analysis by agency 37 Supreme Court 5-4 (divided opinions) only 1 member (Powell) adopted Cost-Benefit view of Circuit Court 38 Plurality on Court: section 3(8) of OSHA Act limited sec. 6(b) OSHA required to make threshold finding of "significant risk of harm before issuing any regulation 39 Secy required to make threshold finding employment place unsafe i.e., risks present & can be eliminated for lessened by changed practices 40 Secy promulgate regs for TOXIC chemicals & HARMFUL physical agents in workplace NOT chemical & physical agents generally 41 Secy's view would give OSHA power to impose enormous costs that might produce little, if any, discernible benefit 42 Sweeping delegation of legislative power to Secymight be Unconstitutional 5

6 would give Secy unprecedented power over industry 43 Issue: define & allocate burden of proving significance of risk where scientific knowledge imperfect & precise quantification impossible 44 OSHA: substantial evidence on record no absolutely safe level for carcinogen 45 OSHA: Industry burden to show beyond shadow of a doubt there is a safe level for benzene exposure 46 Court: disagreed with OSHA, burden on Agency, basis of substantial evidence 47 More likely than not, long term exposure to 10 ppm presents significant risk of material health impairment 48 OSHA did not even attempt to carry burden of proof found benefits lowering emissions from 10 ppm to 1 ppm "appreciable" 49 Industry est. reg would save 2 lives every 6 years 50 Court majority: 1 in 1 billion insignificant risk 1 in 1 thousand risk "might well" be considered significant 6

7 51 No duty for Agency to calculate exact probability of harm does have obligation to find significant risk present before characterizing workplace as "unsafe" 52 Agency judgment involving policy considerations What constitutes significant risk 53 Agency findings need NOT be supported by anything approaching scientific certainty 54 When findings are made on the frontiers of scientific knowledge Agency to be given some leeway 55 Agency free to use conservative assumptions in interpreting data re carcinogens 56 Agency may risk erring on side of over protection rather than under protection as long as supported by body of reputable scientific thought 57 Secy must retrace steps with greater care & consideration 58 Within scope of legitimate agency discretion Secy make policy judgment whether specific risk of health impairment is significant in terms of policy objectives of statute 7

8 59 Judicial function does NOT extend to substantive revision of regulatory policy 60 regulation must NOT strangle human activity in search of the impossible, perfect safety 61 American Textile Manufacturers Institute, Inc. v. Donovan U.S. Supreme Court, OSHA standard regulating cotton dust cause of byssinosis, "brown lung" disease 63 Amended OSHA Cancer Policy consideration be given to significance of risk in issuance of carcinogen standard 64 OSHA to consider all relevant evidence in making determination 65 Amended prior presumption NO safe exposure level for carcinogens deleted automatic setting of lowest feasible level without regard to risk significance 8

9 66 Issue: whether Agency required to engage in COST-BENEFIT ANALYSIS when issuing cotton dust regulation 67 Court: Feasibility analysis is all that is necessary show performance is possible but not analysis comparing cost of compliance with benefits of regulation 68 OSHA expressly found "exposure to cotton dust presents a significant hazard to employees" 25% suffered low level disease 69 OSHA: disease significantly reduced under reg. 12.5% would still have low level disease under reg. 70 Cost-benefit analysis as overriding requirement of OSHA 6(b) regs re Toxic materials no material impairment of health 9

10 would eviscerate "to the extent feasible" requirement 71 Standards would inevitably be set at the level indicated by cost-benefit analysis not at "no material impairment of health" standard specified by 6(b) 72 USING THE TORT SYSTEM TO ADDRESS ENVIRONMENTAL ISSUES 73 State v. VentronCorp. Supreme Court of New Jersey, A2d Responsibility of various corporations for cost of cleanup 75 removal of mercury pollution seeping from 40 acre tract into creek tidal estuary of Hackensack River flowing through Meadowlands 76 Site saturated by 268 tons of toxic waste, primarily mercury 10

11 77 mercury concentration in Berry Creek for several thousand feet highest in world 78 methyl mercury release continues due to interaction with other elements 79 Due to oxygen depletion fish no longer inhabit creek 80 irreversibly toxified when swept into creek by tide 81 contamination resulted from mercury processing at site for almost 50 yrs. 82 Trial Court; Berk & Wood jointly liable for cleanup & removal of mercury 83 Velsicol & Ventronseverally liable for half of costs 84 Wood who purchased property from Ventron not liable 85 Appeals Court affirmed and modified imposed joint & several liability for all costs on Ventron & Velsicol 11

12 86 '29-'60 Berk leased then owned tract, operated mercury processing plant 87 dumped untreated waste and allowed mercury laden effluent runoff 88 '60 sold assets to Wood Ridge, ceased corporate existence 89 '60 Velsicol formed Wood Ridge as wholly owned subsidiary 90 for sole purpose of purchasing & operating Berks mercury processing 91 '67 Wood subdivided tract, 33 acre dividend to Velsicol 92 Vesicol continued to permit Wood to dump on 33 acres 93 Wood continued to operate on remaining 7.1 acres '60-'68 94 Court: Velsicol operated Wood as division, not independent subsidiary 95 Velsicol officers involved in day to day operation of plant 12

13 96 '68 Velsicol sold Wood Ridge to Ventron Ventronbegan to consider a course of treatment for plant wastes 97 mid '60s DEP began testing effluent on tract but did not take any action against Wood Ridge 98 Court: Wood not liable under intentional tort or negligence theories 99 '70 Creek contamination came to attention of EPA, tested Wood Ridge waste water found 2 lbs of mercury per day into creek 100 Wood later installed system which abated but did not halt 101 '74 Wood Ridge merged into Ventron, plant operations continued 102 merger documents provided Ventron would assume liabilities and obligations of Wood Ridge 103 Ventron terminated plant operations sold movable operating assets 104 5/74 Ventronconveyed 7.1 acre tract 13

14 to Wolfs commercial real estate developer 105 Planned to demolish plant & construct warehousing facility in demolition mercury-contaminated water used to wet down structures and run into creek 106 DEP ordered halt to demolition, pending adequate removal or containment of contamination 107 DEP proposed containment plan Wolfs implemented another plan, & proceeded with project 108 DEP brought suit Lower courts: imposed strict liability on Wood Ridge under common law principles for causing a public nuisance and for "unleashing a dangerous substance during non-natural use of land." 109 Rylands v. Fletcher (1866) "Strict Liability" 1866 N.J. Supreme Court Marshall v, Welwood rejected Rylands v. Fletcher 14

15 110 OVERRULED Landowner Liability for Abnormally Dangerous Restatement (Second) Torts sec. 520 comments (d) & (e) 111 landowner is strictly liable to others for harm caused by toxic wastes that are stored on his property and flow onto the property of others 112 Those who use, or permit others to use, land for the conduct of abnormally dangerous activities are strictly liable for resultant damages 113 Common Law Nuisance, Trespass to Land - unauthorized intrusion into land continuing nature of interference was essence of harm fault largely irrelevant 114 Rylands v. Fletcher: person who for own purposes brings on his land and collects & keeps there anything likely to do mischief if it escapes must keep it at his peril 15

16 115 answerable for all damages for natural consequences of escape strict liability limited to "non-natural" uses of land e.g., no strict liability for natural accumulation of water on land 116 Restatement (Second) of Torts Sec. 520 substituted "abnormally dangerous" for "ultrahazardous" 117 Sec. 520 "Abnormally Dangerous" case by case factors high degree of risk of some harm to person, land, or chattels likelihood resulting harm will be great inability to eliminate risk by reasonable care 118 extent to which activity not matter of common usage inappropriateness of activity in place where carrried on extent to which value to community outweighed by dangerous attributes 119 Sup.Ct.: approve trial court's finding Berk, Wood Ridge, Vesicol, & Ventron liable under common law principles 16

17 for abatement of resulting nuisance & damage 120 Wolfs did not pollute environment did not dump mercury only liable for minimal aggravation of underlying hazardous condition 121 Affirm Trial court finding Wolf not liable for cleanup costs 122 AYERS v. TOWNSHIP OF JACKSON Supreme Court of New Jersey 106 N.J. 557; 525 A.2d 287 (1987) 123 New Jersey Tort Claims Act residents of Jackson Township against that municipality. claims for damages sustained because plaintiffs' well water was contaminated by toxic pollutants 124 from a landfill established and operated by Jackson Township 125 jury found "nuisance" and a "dangerous condition" by virtue of its operation of the landfill, 126 conduct was "palpably unreasonable," -- a prerequisite to recovery 127 jury verdict resulted in an aggregate judgment of $15,854,392.78, 17

18 128 Appellate Division proof quantifying the likelihood of disease was insufficient to submit the issue to the jury 129 recent toxic tort cases rejecting liability for damages based on enhanced risk 130 recovery depends on establishing a 'reasonable probability' that the harm will occur. 131 plaintiffs failed to satisfy this threshold standard. They had not quantified their alleged enhanced risk 132 Nothing in the present record indicates the magnitude of the increased risk or the diseases which plaintiffs may suffer 133 Other courts have acknowledged the propriety of the enhanced risk cause of action, but have emphasized the requirement that proof of future injury be reasonably certain. 134 cause of action for unquantified enhanced risk claims 135 task of litigating vast numbers of claims for compensation based on threats of injuries that may never occur. 136 compensability of the enhanced risk claim depends upon the likelihood of an event that has not yet occurred and may never occur 18

19 137 contracting of one or more diseases the risk of which has been enhanced by defendant's conduct. 138 speculative nature of an unquantified enhanced risk claim, the difficulties inherent in adjudicating such claims, argue persuasively against the recognition of this cause of action. 139 claim for medical surveillance expenses stands on a different footing from the claim based on enhanced risk. 140 if medical experts testify convincingly that medical surveillance is necessary, 141 ability of courts to recognize that medical science may necessarily and properly intervene where there is a significant but unquantified risk of serious disease. 142 Compensation for reasonable and necessary medical expenses is consistent with well-accepted legal principles. 143 we hold that the cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony 144 predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which 19

20 individuals are at risk, the relative increase in the chance of onset of disease in those exposed, 145 and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary. 146 We find that the proofs in this case were sufficient to support the trial court's decision to submit the medical surveillance issue to the jury, and were sufficient to support the jury's verdict. 147 indeterminate nature of damage claims in toxic-tort litigation suggests that the use of court-supervised funds to pay medical-surveillance claims as they accrue, rather than lump-sum verdicts, may provide a more efficient mechanism for compensating plaintiffs. 148 court-supervised fund to administer medical-surveillance payments in mass exposure cases, particularly for claims under the Tort Claims Act, is a highly appropriate exercise of the Court's equitable powers. 149 we conclude that the use of a fund to administer medical-surveillance 20

21 payments should be the general rule, in the absence of factors that render it impractical or inappropriate. 150 we decline to upset the jury verdict awarding medical-surveillance damages in this case. 151 Such a result would be unfair to these plaintiffs, neither party requested the trial court to withhold from the jury the power to return a lump-sum verdict for each plaintiff in order that relief by way of a fund could be provided. 152 Environmental Protection and the Constitution Scope of Federal Power 153 Missouri v. Holland U.S. Supreme Court, U.S State attempt to prevent U.S. game warden from attempting to enforce Migratory Bird Treaty Act 155 State argues Act unconstitutional interference with rights reserved to States by Tenth Amendment 156 Issue: whether treaty & statute are void as an interference with the rights reserved to the States th Amend reserves powers not delegated to U.S. to States 158 power to make treaties delegated expressly to U.S. under Constitution, 21

22 supreme law of land 159 State may regulate killing & sale of birds by State's inhabitants 160 does not follow that State's authority is exclusive of paramount powers. 161 Valid treaties are as binding within the terrritorial limits of the States as they are elsewhere throughout the dominion of the U.S. 162 Hodel v. Indiana U.S. Supreme Court, Issue: whether surface mining statute exceeded federal govt's constitutional powers 164 Prime Farmland provisions of Act, required restoration to yield levels of non-mined land 165 Dist.Ct.: prime farmland provisions beyond Congress' power to regulate interstate commerce 166 directed at facets of surface mining which have no substantial & adverse effect on interstate commerce 167 Rpt:.006%, 21.8K acres disturbed annually of total prime farmland in Nation 168 Dist: disturbance in In. by mining "infinitesimal effect or trivial impact on interstate commerce Presumption of Constitutionality for legislative Acts 22

23 adjusting the burdens & benefits of economic life 169 Courts will invalidate legislation enacted under Commerce Clause Only if Clear that there is NO RATIONAL BASIS for Congressional Finding 170 No rational basis regulated activity affects Interstate Commerce Or, no reasonable connection between the regulatory means selected & the asserted ends. 171 Congress entitled to find protection of prime farmland is federal interest that may be addressed through Commerce Clause legislation 172 Judicial inquiry under RATIONAL BASIS TEST is NOT the volume of commerce actually affected by the regulated activity 173 Congress adopted Act to ensure that production of Coal for Interstate Commerce would not be at the expense of agriculture, environment, public health, safety, 174 injury to any would have negative impact on Interstate Commerce 23

24 175 Tenth Amendment note: Court held political process is primary shield of states against Congress 176 Tenth Amendment seems unlikely barrier to environmental regulation 177 Enviro laws at risk only if they impose affirmative duties on state officers rather than regulating individuals or offering state governments an incentive to adopt certain regulations voluntarily