44 ELR 10630 ENVIRONMENTAL LAW REPORTER 7-2014
Being Small in a
Supersized
World: Tackling
the Problem of
Low-Level
Exposures in
Toxic Tort Actions
by Jean Macchiaroli Eggen
Jean Macchiaroli Eggen is Distinguished Professor of
Law, Widener University School of Law-Delaware.
Summary
Low-level toxic tort claims are challenging traditional
tort notions of injury and causation. Low-level expo-
sures form the basis of claims in both environmental
contamination cases and toxic product liability actions
and may involve exposures below thresholds set in
government health and safety standards. Establishing
injury-in-fact and causation is especially problematic in
low-level toxic tort claims due to latent harms, multiple
defendants, and scientic uncertainty. In addition, the
courts increasingly are asked to address whether rele-
vant government standards should be accepted as legal
thresholds that would bar plaintis’ claims when the
defendant is in compliance with the standard. Tradi-
tionally, tort law has treated compliance with govern-
ment standards as evidence of proper conduct, but not
as a defense to suit. Courts today struggle with these
issues and have applied various rules in individual cases.
Although tort law and government regulation seem to
be at odds, courts should seek a middle ground that
values both. is Article explores the doctrinal under-
pinnings of the problem of low-level toxic tort claims,
the various approaches undertaken by the courts, and
the goals that should form the basis of a solution.
I. Defining the Issues
Large-scale releases of hazardous substa nces into the envi-
ronment generate numerous legal issues and receive exten-
sive media attention. But the most vexatious issues often
arise from low-level releases and exposures, which lead to
harm incrementally and after the passage of time. ese
small exposures have caused some supersized problems for
the judicial system. Whether the ca se involves environ-
mental contamination or products liability, low-level toxic
tort claims challenge the fundamental basis of tort law in
injury and causation.
e term “low-level exposure” has no single meaning in
toxic tort law and has become an umbrella term for several
exposure scena rios. In asbestos cases, for exa mple, it may
be used to encompass the chronic low-dose exposures over
time that are capable of causing latent illness. is mean-
ing extends to other products, such as drugs inge sted over
time and chemical exposures in the workplace or other
environments. In environmental contamination cases, the
term “low-level” may be used to indicate exposures below
a regulatory sa fety threshold. Furthermore, low-level toxic
tort claims often involve multiple defendants, adding ques-
tions of risk contribution to the broader issue of liability.
Both tort law and government regulation serve impor-
tant public health and safety purposes. Indeed, matters
related to public health and safety traditionally have been
allocated to the states under their police powers, except
where federal interests may be so strong that the U.S.
Congress has intended federal law to supplant state law.1
is is par ticularly pertinent where Congress has chosen
to include a saving clause in a federal statute. For example,
when Congress enacted the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA)2
in 1980, it declined to include a mechanism for providing
compensation to persons adversely impacted by a release
or threatened release of a hazardous substance as dened
under the Act. Congress instead included a clause expressly
saving a person’s right to pursue state common-law claims.3
Speaking about saving clauses, the U.S. Supreme Court
has noted that “occasional nonuniformity” between federal
standards and state standards “is a small price to pay for
a system in which juries not only create, but also enforce,
2. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.
3. CERCLA §310(h), 42 U.S.C. §9659(h) (2013).
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
