Causation in Environmental Law: Lessons from Toxic Torts

Harvard Law Review, June 2015 | Go to article overview

Causation in Environmental Law: Lessons from Toxic Torts


Causation--the link between an actor's behavior and subsequent harm to another--is a vital component of a variety of legal doctrines. Requiring that a plaintiff show a causal connection between her injury and the defendant's action satisfies the instinct that remedies for an injury should come from those who are responsible. Yet as any first-year torts student knows, pinpointing the actor(s) responsible for an injury can be factually and conceptually difficult, if not impossible. To further obfuscate clear analysis, "causation" can refer to many distinct concepts, due to different requirements in different doctrines. The result is that courts may often analyze causation in vastly differing ways, even in cases where the injury and instigating act are remarkably similar. The treatment of causation has been particularly inconsistent in environmental cases. This Note explores the disparate treatment of causation in environmental law and toxic torts. Courts can adapt the distinction between general and specific causation used in toxic tort law to clarify standing analysis and avoid prematurely deciding merits questions in environmental suits.

Environmental and toxic tort suits constitute broad, amorphous, and sometimes overlapping categories. To aid clarity, for the purposes of this Note, "toxic tort suits" refer to personal injury cases that allege a harm, generally a physical injury, due to exposure to a toxic substance. (1) Toxic tort suits can cover a wide variety of toxic exposures, including those from toxic products, toxic materials in a workplace, and toxic discharges into the environment. "Environmental suits," in contrast, refer to cases that allege an injury to plaintiffs' interests due to a harm to the environment or a violation of an environmental statute. Environmental suits thus can be further divided into two subcategories: those asserting rights under common law, such as public nuisance, and those asserting rights created by statute.

There are many similarities between toxic tort and environmental cases; indeed, some toxic tort suits are considered environmental suits by scholars and practitioners alike. (2) First, in the most archetypal version of both types of suits, the defendants have created, sold in the marketplace, or discharged into the environment an injurious substance, such as a commercial drug with previously unknown negative side effects, chemical waste leaking from a landfill, (3) or a "noxious gas" that causes acid rain. (4) Second, for both types of suits, the injuries or theories of causation alleged are often based on cutting-edge research, and resolving the claims often requires difficult factual or technical determinations, particularly in establishing a causal link between the offending substance and the claimed injury. Finally, even though such complex, fact-intensive determinations might seem better suited to factfinders, in both types of suits, causation is often determined by judges as a matter of law.

Despite these similarities, causation is treated quite differently in environmental suits compared to toxic tort suits, particularly in those suits where a judge finds that causation does not exist as a matter of law. In environmental suits, causation is typically analyzed as a component of Article III standing, a jurisdictional inquiry that precedes any other aspect of the case. (5) In contrast, in toxic tort cases, causation is rarely addressed under the standing inquiry. Instead, dismissal of a toxic tort case for lack of causation is typically based on whether the plaintiffs have presented sufficient evidence on causation, after standing has been established (or presumed). (6)

This Note argues that causation in environmental law cases has been forced into jurisdictional standing analysis, even where the inquiry is more appropriate for later determination on the merits, which results in a significant and sometimes inappropriate barrier for environmental plaintiffs. …

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