The Complementary Roles of Common Law Courts and Federal Agencies in Producing and Using Policy-Relevant Scientific Information
McGarity, Thomas O., Environmental Law
I. INTRODUCTION II. SCIENTIFIC INFORMATION IN REGULATORY AGENCIES A. Adverse Effects Reporting Requirements B. TSCA Testing Rules III. SCIENTIFIC INFORMATION IN COMMON LAW COURTS IV. A CASE STUDY IN COOPERATION A. Teflon, C-8, and other Perfluorinated Compounds B. 3M Gets Out of the Business C. DuPont Expands Its Business D. EPA Acts E. DuPont's Litigation Woes F. The Scene Shifts Back to EPA V. THE ADVANTAGES OF COOPERATION VI. IMPEDIMENTS TO COOPERATION A. Agency Impediments B. Common Law Impediments C. Protective Orders and Sealed Settlements VII. TOWARD GREATER COOPERATION IN THE FUTURE A. Ease the Burden on EPA Test Rules B. Easier Access to Agency Information through FOIA or Posting on the Internet C. Change the Rules of Practice to Allow Parties to Provide Information to Agencies VIII. CONCLUSION
Beginning in the early 1970s, Congress empowered federal agencies, like the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration, and the Food and Drug Administration, to protect human health and the environment from a variety of risks posed by useful consumer products and less useful activities that result in discharges of pollutants into the nation's air and water. The agencies implement their often overwhelming responsibilities by promulgating rules governing private conduct or, in some cases, by approving products for public marketing. To assess the risks posed by such products and activities properly, these agencies rely upon scientific information from a variety of sources ranging from published scientific articles to unpublished reports from regulatees on the results of product testing to adverse effects reports indicating that particular products or activities pose unacceptable risks. (1) The agencies have become repositories of huge amounts of scientific information that they may use in taking regulatory action or disseminate to the public by way of warnings or cautionary statements.
Common law courts entertaining products liability and toxic tort claims rely upon the same kind of scientific information in 1) assessing whether the defendant's products are defective or its activities subject workers or neighbors to unreasonable risks and 2) determining whether the defendant's products or activities caused damage to the plaintiff. Defendants in such actions are often subject to federal regulatory requirements as well, and they can provide the courts with the same information that they supply to the agencies. (2) Private litigants can also commission their own studies and hire experts to assess and opine on the scientific literature. (3) Unlike regulatory agencies, litigants can also dig through the files of the opposing parties in an effort to uncover additional scientific information and evidence that they may or may not have shared with the appropriate regulatory agencies. (4) The situation therefore offers the potential for cooperative sharing of scientific information between regulatory agencies and common law courts. (5) Relying on a case study of the regulatory and litigation history of the ubiquitous chemical compound perfluorooctanoic acid (PFOA), this Article probes that potential and the impediments that stand in the way of its full realization.
II. SCIENTIFIC INFORMATION IN REGULATORY AGENGIES
Agencies can draw on a wide variety of sources of scientific information to use in promulgating rules and regulating products. Agency staff with expertise in the relevant scientific disciplines can comb the published literature for relevant studies. During the rulemaking process, agencies ask members of the public to provide any information they possess that might be relevant. (6) This typically yields large submissions from the regulated entities and sometimes from nongovernmental public interest groups. …