Hazards: Technology and Fairness (1986)

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THE BHOPALIZATION OF AMERICAN TORT LAW 103 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. "Public law" adjudication in the courts, so eloquently described (in general terms) by Abram Chayes (1976), and by Joel Yellin (1981), David Rosenberg (1984), and others12 (with specific application to risk regulation), simply does not and cannot yield progressive choices among public risks. The public law model of judicial action is a grand design for having lawyers decide everything everywhere. But in risk matters, at least, experience and common sense teach that the only beneficiaries are likely to be lawyers themselves. Deferring to the Experts What, then, are the courts to do with individual or class actions that seek redress from risk or injury caused by an IUD, vaccine, herbicide, morning sickness drug, nuclear waste reprocessing facility, or the like? A general prescription is less, not more. The courts should defer to the experts. These should not be experts summoned by the parties for the edification of the judiciary, however. The scientific community is large and heterogeneous, and a Ph.D. can be found to swear to almost any "expert" proposition, no matter how false or foolish. The expert public-risk choices that should be respected are those made by a risk-regulatory agency concerned with the public risk in question. This is not the current law. Judges, at present, generally feel quite free, when addressing risk problems, to ignore prior administrative determinations regarding which public risks represent progressive choices. The Restatement of Torts flatly declares that "compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence."13 Many risk-related administrative statutes, such as the Consumer Products Safety Act, expressly announce that compliance with safety rules is not to serve as a shield from tort liability.14 When the statute is silent or even the least bit ambiguous on the question of tort-remedy preemption, the courts will always presume that no preemption was intended.15 The Karen Silkwood decision, for example, announced that the operator of a nuclear facility can be assessed punitive damages despite complete compliance with applicable NRC regulations. And in Chevron v. Ferebee, a recent case from the D.C. Circuit Court of Appeals, a chemical company was held liable for "mislabeling" a can of paraquat, even though the label had been approved by the EPA and even though the manufacturer could not lawfully have used anything else—only EPA had the legal power to change the label. In short, the settled judicial refusal to defer to agency choices among public risks has spawned a never-ending cycle of truly perverse risk-regulatory decisions.16 The FDA's experts may conclude after a careful examination of the substitutes that the Sabin polio vaccine is a better bet than 

THE BHOPALIZATION OF AMERICAN TORT LAW 104 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. the Salk, or the NRC may conclude that a nuclear power plant is safer than the available alternatives. But a mass-exposure lawyer and an injured or merely frightened client can effectively overturn the expert judgments by finding what is almost too easy to find: a judge who is of the view that the courts have something useful to offer in these matters, and a sympathetic and well-meaning jury. The agency's blessing of the vaccine, or pesticide, or power plant is usually no more than a prelude to a second tier of regulation in the courts. The resulting you-say-yes-but-I-say-no pattern of public-risk decision making is routinely explained by the courts—and often accepted by the agencies —on the ground that administrative regulation of risk is intended to set only a safety "floor"—a threshold of performance, a minimum definition of "acceptable" safety. Agencies will point out that they rely mostly on data furnished by the regulated industries themselves and therefore cannot and should not be viewed as the final arbiters of how much safety is enough. It is, of course, politically comfortable for agencies to preserve the tort system as a safety valve. When injuries do occur, the agency is grateful to see at least part of the victims' hostility directed at the regulatees. This rationalization for judicial nondeference may make some sense when the administrative regulatory regime is casual or sporadic, as with consumer products. But it is wholly unpersuasive for comprehensively regulated industries. Vaccines, pesticides, aircraft, electric power plants, and the like all entail potentially enormous mass-exposure hazards. Precisely because they can create public risk of this nature, these products and services are also subject to the most searching and complete state and federal safety regulation. When that regulation reaches a favorable conclusion about a potentially hazardous technology, the conclusion must inevitably be based at some level on a conclusion that the technology represents some measure of progress or, at worst, no measure of regression in the risk market in question (Huber, 1984). Once that determination has been made by an expert licensing agency, the courts should respect it. Requiring—or at least strongly encouraging—the courts to respect the comparative risk choices made by competent, expert agencies would inject a first, small measure of rationality into a judicial regulatory system that currently runs unchecked. The Nuclear Regulatory Commission's licensing of a nuclear power plant or reprocessing facility must be viewed for what it is—considerably more, in other words, than a routine and irrelevant pleasantry to be forgotten as soon as the first tort plaintiff enters the courthouse. Regulatory agencies are equipped to make the risk comparisons on which all progressive transformation of the risk environment must be based. It has always been true that ignorance of the law is no excuse. At present, knowledge of the law is no excuse either. It should be.