Hazards: Technology and Fairness (1986)

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THE BHOPALIZATION OF AMERICAN TORT LAW 92 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. expanded when the act is renewed in 1986)—all nuclear operators will share in the liability if there is an accident at any one of their plants. The most radical change in the new tort law is one still gleaming in the eyes of various legal commentators—but a moderately serious prospect nonetheless. Powerful forces are pushing, often to receptive audiences in the courts and legislatures, for what has been called a "proportional causation" rule of liability. This would permit me to sue you for my cancer if I could show even a 1 percent likelihood that your power plant in fact caused it. Notwithstanding the 99 percent probability in your favor, I would still recover—but only 1 percent of my actual damages. One percent, that is, plus or minus the usual slack allowed by the tort system—which seems to be several hundred percent, at least. Under the old tort law, by contrast, I would not collect at all unless I established a causal link between your conduct and my injury that exceeded 50 percent; once that threshold was exceeded, I would recover my full damages. Timeliness The old tort law also had a rigid sense of timeliness. A tort action could not be brought too early. Nor too late. Premature actions were simply dismissed without prejudice to the plaintiff's right to sue again later. Stale actions were dismissed once and for all. Some of the details are worth reviewing. Tort law does—and for a long time has—entertained prospective actions for injunctive relief. These are actions designed to cut off a course of dangerous conduct before it culminates in actual harm. Under the old tort law, if you could really show that I was on the brink of doing something terribly, imminently, and irreparably damaging to your interests, you could get an injunction to stop me. But if I was anywhere short of the brink, or if the consequences were anything short of irreparable, no injunction would issue. You (the plaintiff) had to wait for the harm to occur; only then could you sue me for money damages. The rationale was simple enough: what may appear to be a real threat of harm often is not, and litigation postponed will often be litigation avoided altogether. Thus, for example, in an 1885 English case (Fletcher v. Bealey), the court rejected an injunction plea from a downriver paper plant whose owner was worried about an upstream chemical manufacturer's wastes being piled at the edge of the river. There was no dispute that the wastes would be injurious; the only question was when, if ever, they would enter the river. The court ruled that the harm was not demonstrably imminent and that, therefore, no injunction should issue. This rule was widely followed in the American courts, and the rationale for embracing the rule on this side of the Atlantic was clear enough. Article III of the Constitution restricts courts to 

THE BHOPALIZATION OF AMERICAN TORT LAW 93 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. deciding "cases or controversies"—disputes, in other words, that have reached a certain level of ripeness. And American courts of that era were willing to accept the idea that if the wrong lies too far in the future the court's order will necessarily be speculative and prone to error. Under the old tort law, a would-be plaintiff could not bypass the strict rules against premature injunctions by asking for premature money damages, either. Negligence "in the air" was emphatically not actionable. Actual loss or damage was an essential element of the cause of action; in all but the most exceptional cases, the threat of future harm, as yet unrealized, was not enough. You could not, in other words, sue for damages alleged to be caused by exposure to risk itself. There were some minor exceptions—to cover cases where the exposure to the risk caused present damage to land values and so on, or where the defendant's conduct created such acute and broadly shared fears in the community that the courts felt it appropriate to intervene. But these exceptions were narrow. A tuberculosis hospital, for example, located in a proper place, was not an actionable nuisance. Finally, under the old tort law a plaintiff was not permitted to sue too late, either. Once he had been injured, a plaintiff typically had about one to three years to bring his damage action. This limitation period applied regardless of when he discovered that he had been injured. If the discovery came after the expiration of the period, it was simply too bad for the plaintiff. In short, the old tort law saw timing as a critical factor in litigation. Except in rare cases, the law embraced two limiting presumptions: first, that only time would tell if a risk was real enough to be worth a lawsuit; and, second, that time would heal all wounds without the help of the legal system. Today, time is not what it used to be. Through one legal vehicle or another, risks are being litigated earlier and earlier. And also later and later. We have established, to start with, comprehensive administrative licensing systems for such things as drugs, food additives, nuclear power plants, hazardous waste dumps, aircraft, new chemicals, and the like. In a series of creative interpretations of the law, judges have declared that statutes such as the Administrative Procedure Act and the National Environmental Policy Act grant the courts broad authority to review those licensing decisions critically just as soon as they are made. For example, in Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, a panel of judges decided that they had authority to block research on the fast breeder reactor—not the reactor itself, but the research program going on behind it—because in the long term such research might shape energy policy and so have a "significant impact" on the environment. Moreover, every time a standard-setting agency such as the Environmental Protection Agency (EPA) or the Occupational Safety and Health Administration (OSHA) sets a new health-based standard, the underlying risk assessment (if any) is imme 

THE BHOPALIZATION OF AMERICAN TORT LAW 94 original typesetting files. Page breaks are true to the original; line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be About this PDF file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the retained, and some typographic errors may have been accidentally inserted. Please use the print version of this publication as the authoritative version for attribution. diately subject to challenge in the courts, regardless of how temporally remote the harm at which the standard is directed. There is still a concept of "ripeness" in administrative law litigation of this type, but it has grown pathetically weak. Similarly, tort plaintiffs seeking injunctions against what they view as unacceptably risky activities are no longer required to establish that harms are imminent. There is not the slightest doubt that an American court would be prepared to issue the Fletcher v. Bealey injunction today. Judges and lawyers may still pay lip service to "imminent harm" standards of yesteryear, but in fact almost any activity, no matter how remote the harm that it threatens, can qualify. The "window of opportunity" for bringing actions for money damages has opened even wider. Such actions can now be brought much later than was formerly allowed, and the evolving trend is to entertain them much earlier as well. At the front end, prominent legal commentators and judges are proposing to make the exposure to risk itself a compensable injury. In a nutshell, I could sue you for operating a nuclear power plant or a chemical factory in my neighborhood, and I could recover. How much? I could recover the present actuarial value of the injury you might some day cause me. We would take the Rasmussen report on reactor safety, say, multiply the 10-7 estimated risk of accident during the plant's life by the 1011 dollar value of the consequences and distribute the proceeds among the 104 who might collectively suffer those consequences. No, not quite: the recovery would be distributed among 104 plus one recipients. The lawyer who brought this inspired action would surely get a healthy cut, too. If this seems utterly fanciful, the same scheme can be dressed up in different clothes, and there are many in the legal profession who are eager to serve as the tailors. Plaintiffs, it is argued, should be allowed to recover for the anxiety that exposure to risk can cause. In practical terms, this has much the same effect as suing for the risk itself—the suit can be brought at any convenient time, long before the risk is translated into actual injury, indeed, long before anyone is sure whether the risk is even real. And this highlights the one big advantage of suing for anxiety instead of for the risk itself: anxiety levels—unlike risk levels—are within the exclusive control of the plaintiff. It has not escaped notice in the profession that clever legal work and good (that is, bad) publicity can create anxiety where none existed previously, and where none could be rationally justified by the hazard at hand. Damage actions are being brought later and later, as well. The other half of the plaintiffs' bar has been arguing (with considerable success) not that the injury occurs earlier than had been previously thought, but that it occurs