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Toxic Torts
Toxic torts present a challenging area for the discussion of ethics and law. It is an international phenomenon with inherent transnational implications. 1 Toxic torts remind us of environmental disasters like Bhopal where the Union Carbide (“UCC”) factory in India spewed more than forty tons of lethal methyl isocyanate (“MIC”), killing more than 6,600 people and injuring over 70,000 others. It is critical that the world should work to avoid similar disasters. Thus, this paper is committed to examining: (1) the causes of toxic torts and their ethical implications, (2) law’s role in addressing these causes, (3) the limits to law’s role in resolving such problems, and (4) viable solutions for the legal loopholes.

Causes and their ethical implications
(1) Greed Human greed is the overarching cause for environmental disasters. Due to profit pressures, environmental expenditure is seen as an unnecessary cost. 2 This leads to compromises in safety which proportionately increases the probability of industrial disasters.3 Furthermore, the benefits of environmental protection such as goodwill and public image only materialise in the long-term, which is contrary to the private sector’s interest in immediate gains.4 (2) Failure and Lack of legal regulation The dearth of legal regulation has contributed to increased occurrences of toxic torts because companies are not forced to adopt safe practices. This is especially prevalent in developing countries which lack legal infrastructure5 and sufficient case law to handle toxic tort litigation.6 Furthermore, their governments often sacrifice the protection of individuals and the environment by relaxing regulations to attract foreign investment. 7 Also, in return for loans, international lending agencies like the World Bank have forced developing nations to undergo ‘structural adjustments’ such as liberalisation of their economies to promote investment; such liberalisation has led to the relaxation

For example, pollution in one state can cause harm in another. See Pakootas v. Teck Cominco Metals, Ltd. 35 Envtl L Rep 20,083 (ED Wash 2004). The case involved the Trail Smelter controversy where the state of Washington and Indian tribe members brought an action against Teck Cominco, a Canadian mining company for cross-border hazardous water pollution originating from its smelter. 2 Frank Pearce and Steve Tombs, “Bhopal: Union Carbide and the Hubris of the Capitalist Technocracy” Social Justice 1989; Vol. 16 No. 2(36): 116-145, at 126. Union Carbide India was already losing money at Bhopal while facing heavy pressure from the herbicide and pesticide industries. This caused it to reduce its safety and maintenance measures. 3 Ehrlich, Issac and Gary Becker, “Market Insurance, Self-Insurance, and Self-Protection” Journal of Political Economy 1972; 80(4): 623-648. 4 B M Rushton, “How Protecting the Environment Impacts R & D in the United States” Research Technology Management, (May-June 1993) at 13-21. 5 George T L Shenoy, Ethics and Social Responsibility (McGraw-Hill Education (Asia), 2nd Ed, 2011) at 335. 6 Michael Anderson, “Transnational Corporations and Environmental Damage: Is Tort Law the Answer?” (2002) 41 WBNLJ 399 at 418. 7 See Joshua Karliner, “To Union Carbide, Life is Cheap” The Nation, (12 December 1994) at 728; Mark Schapiro, “Du Pont’s PostBhopal Blues” The Nation, (2 November 1992). The article reveals that the Indian government contracted to absolve Du Pont Company of liability for all accidents at its chemical plant, despite the fact that the Bhopal disaster had only occurred roughly a decade before. See also: David Weir, “The Bhopal Syndrome: Pesticides, Environment and Health” (San Francisco: Sierra Club Books, 1987). Cited in TED Case Studies, Bhopal Disaster, Case no. 233 p 1, <> (accessed 22 October 2011).



Vol. 16 No. at 122. (3) Lack of technical expertise The lack of technological expertise in developing countries result in failures to implement safe processes for chemical management. at 120. “Ten Years After Bhopal: What Has the Indian Chemical Industry Learned” Sustainable Development 1995. 16 No.14 Lastly. 2(36): 116-145. On March 12. 10 Tamsen Douglass Love.12 The consequent effect is that there is insufficient pressure on companies to implement better safety measures. 2(36): 116-145. despite finding 61 hazards in Bhopal plant. at 120. injured 32 others and came within minutes of killing hundreds. Texas plant. “Bhopal: Union Carbide and the Hubris of the Capitalist Technocracy” Social Justice 1989. The article gives more details of the disaster and UCC’s poor safety record. “Bhopal: Union Carbide and the Hubris of the Capitalist Technocracy” Social Justice 1989.16 (4) Poor organizational management Poor internal management of companies presents a critical cause of toxic disasters. at 49.11 Also. 8 The upshot is that transnational companies (“TNC”) take advantage of these weak regulations to export hazards to developing countries. 2(36): 116-145. 20 Law’s role in addressing the causes of toxic torts Joshua Karliner. and reducing the education requirements for jobs. 15 Sangeeta Bhargava and Richard Welford. 16 No.html> (assessed 23 October 2011). at 125. 20 Id. “Bhopal: Union Carbide and the Hubris of the Capitalist Technocracy” Social Justice 1989. Vol. 19 Id. Frank Pearce and Steve Tombs. Vol. measures are inadequate. 30 of them major. international environmental treaties lack teeth because of enforcement difficulties and their lack of jurisdiction over companies. The lack of technical expertise in India has also forced companies to adopt ‘pollution treatment’ rather than ‘pollution prevention’ technology. 1991. The article reveals that UCC still allowed production to continue.15 TNCs further compound this problem by cutting back on the hiring of employees. (12 December 1994) at 727. Information on the latter disaster was obtained from the account of Diane Wilson. 13 Sangeeta Bhargava and Richard Welford. vol 3: 44-50. 2(36): 116-145. 12 Michael Anderson. at 797-801.19 Lastly. This will be elaborated on later in the paper. The article reveals that the standardised MIC toxic tanks in the Bhopal plant were not customised to withstand India’s climatic conditions. an explosion and fire at the Union Carbide Seadrift plant caused by the faults pinpointed by the ignored safety audits. while regulation suffers from ineffective enforcement. “To Union Carbide. “Deterring Irresponsible Use and Disposal of Toxic Substances: The Case for Legislative Recognition of Increased Risk Causes of Action” (1996) 49 VNLR 789 at 802-803 11 Id. “To Union Carbide. 18 seadrift_more. their governments also lack information about the nature and effects of produced toxins.Sandberg. 16 No. killed one worker. See also Joshua Karliner. TNC executives also fail to think across space resulting in inability to foresee dangerous safety loopholes. abolishing practical training. low education levels result in ill-trained technicians operating hazardous machinery. Life is Cheap” The Nation.13 Moreover.18 Studies have also shown that UCC executives employed racist rationalisations to justify their safety breaches. viewing Indian lives as less valuable. 14 Frank Pearce and Steve Tombs.ETHICS AND SOCIAL RESPONSIBILITY GROUP 1 of environmental law.17 Companies have also exhibited a corporate culture of ‘willful blindness’ to the presence of hazards. vol 3: 44-50. 9 Even in developed nations where environmental laws are institutionalised.bhopal. “Ten Years After Bhopal: What Has the Indian Chemical Industry Learned” Sustainable Development 1995. at 122. at 120. at 126. Plaintiffs have difficulty succeeding in tort litigation because of the difficulties in proving causation10 . who spent much of her life fighting the polluters in Calhoun County <http://www. 17 Frank Pearce and Steve Tombs. “Union Carbide Corporation: A Case Study” (1986) Geneva: International Management Institute at 17. 16 Frank Pearce and Steve Tombs. 8 9 CHOW JIAN HONG PAGE 2 OF 9 . “Transnational Corporations and Environmental Damage: Is Tort Law the Answer?” (2002) 41 WBNLJ 399 at 403-405. (12 December 1994) at 727. “Bhopal: Union Carbide and the Hubris of the Capitalist Technocracy” Social Justice 1989. Vol. UCC also turned a blind eye to audits that explicitly warned of specific faults in UCC’s Seadrift. at 49. H. Companies lack effective risk-assessment systems and crisis management plans. Life is Cheap” The Nation.

31 See United States v Olin Corp 107 F 3d 1506 at 1513-14 (11th Cir. Prosser and Keeton on Torts (West. nuisance.22 Lastly. Michael Anderson. See also United States v Ne Pharm & Chem Co 810 F 2d 726 at 733 (8th Cir. and the expedience of the course pursued”. and (2) the need for economic benefits. Although litigation and regulation may seem to have a kantian rights-centric focus. Compensation and Liability Act (“CERCLA”) provides for the cleanup of hazardous waste disposal sites. Retrospective liability is an exceptionally strong deterrent because it can impose future liability even if a commercial chemical has not presently deemed as hazardous. governmental agencies protect public interest through regulation. Individual rights and the environment are protected by tort litigation. 21 22 CHOW JIAN HONG PAGE 3 OF 9 . 26 W Page Keeton et al. trespass.ETHICS AND SOCIAL RESPONSIBILITY GROUP 1 (1) Protecting individuals rights. in the light of the social value of the interest threatened.23 However.. 24 Chevron USA. the environment and regulating greed while balancing the need for economic growth Law regulates competing ideologies of public good: (1) the protection of rights (individual and environmental) and the regulation of greed. “Transnational Corporations and Environmental Damage: Is Tort Law the Answer?” (2002) 41 WBNLJ 399 at 408-410. 23 Ibid. In the USA. the veneer of rights-centric statutes belies an underlying tension with economic benefits embodied by cost-benefit analysis. while imposing cleanup costs on responsible parties. 1997) where the court concluding that Congress intended CERCLA “to impose retroactive liability for cleanup”. 1984) § 30 at 173. The doctrine of negligence encapsulated in the Restatement of Torts 25 reveals an implicit cost-benefit analysis when it states that a negligent act is one which a reasonable man would recognize as involving an unreasonable risk of harm to another. 28 Toxic Substances Control Act of 1976 15 USC § 2601 et seq (2006). 5th ed. 27 Occupational Health and Safety Act of 1970 29 USC 651(b)(3) (2006). economic benefits are also accounted for through an inherent utilitarian cost-benefit analysis. 26 Similarly. The author states that the standard of care is “determined upon a risk-benefit form of analysis: by balancing the risk. and Liability Act of 1980 42 USC § 9604 and 9607(a) (2006).21 These rights are validated through compensation. strict liability. regulating a chemical under TSCA requires the EPA to provide evidence that: (1) the chemical The actions are usually brought under the doctrines of negligence. as the US Supreme Court held. Inc v Natural Res Def Council. CERCLA imposes rigorous liability schemes (strict30 and retrospective31) forcing companies to exercise greater care in their production and disposal methods.24 The courts make such policy decisions through the utilitarian rubric of cost-benefit analysis.29 Regulation also deters further environmental hazards. and the probability and extent of the harm. Compensation. against the value of the interest which the actor is seeking to protect. Inc (1984) 467 US 837 at 847. Even the standard of care in negligence actions is determined by a form of risk-benefit analysis. 25 Restatement (second) of torts (1965) at s 291. For example. worker safety is protected by the Occupational Safety and Health Agency (“OSHA”) which regulates worker exposure to toxic substances through the Occupational Safety and Health Act. Like tort law. punitive (and compensatory) damages deter excessive greed by forcing companies to employ better management of their chemical production processes. The risk is unreasonable if its magnitude outweighs what the law regards as the act’s utility or the utility of the act’s manner of execution. 28 Regulation also rectifies existing environmental hazards: the Comprehensive Environmental Response. 1995) where the court declared that precedent “imposes strict liability . courts must strike a balance “between interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs and interests advancing the economic concern that strict schemes retard industrial development”.. for cost[s] associated with hazardous waste cleanup and site remediation”. while the environment is protected by forcing the tortfeasor to make rectifying payments for their damaging activities. 30 See United States v Colo & ERR Co 50 F 3d 1530 at 1535 (10th Cir.27 Environmental and health risks associated with the production of toxic substances are identified and controlled by the Environmental Protection Agency (“EPA”) through the Toxic Substances Control Act (“TSCA”). 29 Comprehensive Environmental Response. 1992) where the court held that CERCLA has to make those responsible for the hazardous waste site pay for clean-up costs. Furthermore. See United Nations Environmental Programme.. 32 CHOW JIAN HONG PAGE 4 OF 9 .34 In cases of state regulatory failure. Regulatory agencies like the EPA conduct research “dedicated to developing ways to help produce safer chemicals and regulate harmful substances”. especially in developing countries. 1989/2000 and (2) the Chemical Accidents (Emergency Planning. Preparedness and Response) Rules. potentially massive damages will force companies to conduct pre-emptive research into the potential harm of their production processes which will lead to better internal management. See the division’s website <http://moef. Industry and Economics is a “driving force . suing TNCs is difficult because of uncertainty relating to jurisdiction. They have identified “hazard zones” in the country and implemented crisis-management plans for most of those areas. Harmful Substances Management (HSM) Division has developed their toxic management policies based on influences from the Stockholm Convention. expertise. The establishment of precedents associated with a particular chemical will indirectly create regulatory standards which companies must abide by to avoid liability. “Transnational Corporations and Environmental Damage: Is Tort Law the Answer?” (2002) 41 WBNLJ 399 at 423. for activities related to the sound management of chemicals” and “promotes chemical safety by helping developing countries formulate appropriate policies”.html> (accessed 22 October 2011).epa. (2) Promotion of greater research.nic. tort doctrine can plug knowledge gaps. Harmful Substances Management (HSM) Division website < http://moef. 35 Michael Anderson. (3) encourage the undertaking of further research those chemical compounds (Art 11). and promotes better management of companies. the law codifies the balancing of rights and economic benefits. 36 This is usually done through judicial establishment of the standard of care required in processing a particular chemical. International soft law like the Stockholm Declaration37 and international agencies like the United Nations Environmental Programme38 are noteworthy for promoting global development in chemical management expertise and infrastructure39 . 33 Environmental Protection Agency website <http://www. and legal infrastructure The law encourages the growth of research in toxic materials and promotes the development of legal infrastructure for managing environmental harm which will ultimately aid in the reduction of environmental disasters.html> (accessed 22 October 2011). Storage and Import of Hazardous Chemical (MSIHC) and (4) share information about those chemicals (Art 9).gov/gateway/science/substances. The division regards itself as a “nodal point” for the convention. “Transnational Corporations and Environmental Damage: Is Tort Law the Answer?” (2002) 41 WBNLJ 399 at 409. 41 Michael Anderson.nic. However. 39 The Declaration plays an instrumental role in getting countries to: (1) create infrastructure for regulating the production of certain hazardous compounds (Art 3). deters greed. international law may provide less-developed countries with legal infrastructure (which they typically lack) to deal with torts committed by transnational companies.32 Thus.ETHICS AND SOCIAL RESPONSIBILITY GROUP 1 presents “unreasonable” health and environmental risks.. and the loss on the economic and social utility of the product. Traditionally. See Ministry of Environment and Forests.36 Lastly.35 Private actors have greater incentive to finance research into the nature and effects of toxins in order to successfully plead or defend their case.unep. (2) promote public awareness about the existence of those chemicals (Art 10). and where the wrong was localised. health. Harmful Substances Management (HRM) division has developed legal regulations for toxic waste management. supra n divisions/hsmd/hsmd. 40 The Ministry of Environment and Forests. Industry and Economics website <http:// www. 37 Stockholm Declaration on Persistent Organic Pollutants (17 May 2004).aspx> (accessed 22 October 2011). 38 The United Nations Environmental Programme’s Division of Technology.33 Even developing countries like India have developed regulatory instruments for chemical management and crisis management plans for chemical hazard zones. and environmental factors in determining what constitutes an “unreasonable” risk.html> (accessed 22 October 2011). Division of Technology.41 Limitations of environmental jurisprudence in negating toxic torts Toxic Substances Control Act of 1976 15 USC § 2601 et seq at § 2618(c)(B) and 2605(a) and (c) (2006). See also § 2605(a) and (c) which legislates the consideration of economic. The division have developed rules for the regulation of chemical safety: (1) The Manufacture. applicable law. The division has developed rules for the regulation of chemical safety. 34 The Ministry of Environment and Forests India. and (2) the regulatory benefits outweigh its regulatory costs. these problems can be solved by suing on a violation of human rights which are universal in application.

Science and Policy (Aspen Publishers.42 Yet the model has become so prevalent that an economic approach to decision-making can no longer be considered callous. each impact compounding the effect of another. but fails to evaluate the cumulative environmental effect of the pollutants combined. what is being asserted is that even non “but-for” causes should be considered for their cumulative impact.50 or resulting in the action being barred by the statute of limitations. 54 Nathaniel Garrett. 43 Joseph H Guth. 46 Robert Percival et al. 47 Joseph H Guth. (2) The limits of law in protecting individuals. 42 CHOW JIAN HONG PAGE 5 OF 9 . neither of which are sufficient to constitute causation in law. at 37. 2003) at 637-642 which outlines the environmental history of common law and federal statutes. However. For example. Compensation and Environmental Carcinogenesis” (1981) 90 Yale LJ 840 at 853 (author unknown). may not be regarded as a sufficient cause of harm. 53 Joseph H Guth. It is inherently fragmented because ignores cumulative environmental impacts. The usual criticisms associated with the moral framework has centred on the inhumanity of prescribing values to conflicts of human behaviour. 52 David S Pegno.47 The same problem exists in tort doctrine because the evaluation of the environmental impact of pollutants is limited to the pollutants in question in each individual case. the US Clean Water Act 45 protects various uses of water by defining acceptable limits for each individual pollutant present in water bodies46.52 Secondly. the environment.53 Thirdly.43 It omits consideration of the fact that deep interconnections underlie various constituents of the biosphere and this results in interactions between various environmental impacts. “‘Life is the Risk We Cannot Refuse’: A Precautionary Approach to the Toxic Risks We Can” (2005) 17 GEOIELR 517 at 519.51 Furthermore.49 revealing itself only decades after exposure. companies may have dissolved by the time the harm materialises. existing cost-benefit analysis in environmental jurisprudence has a critical flaw. Firstly. 48 Id. “The Role of Causation in Science as Law and Proposed Changes in the Current Common Law Toxic Tort System” (2001) 9 BFELJ 35 at 89.54 Companies often escape liability because of the inability of epidemiological research to prove the link between a toxin and a disease due to the Clifford Fisher.ETHICS AND SOCIAL RESPONSIBILITY GROUP 1 (1) Problems with the utilitarian basis underpinning modern jurisprudence Utilitarian cost-benefit analysis is well-entrenched in modern jurisprudence.jstor. the Johns-Manville Corporation filed a Chapter 11 bankruptcy petition in 1982 to limit the potential liability it faced for asbestos related claims. thereby relieving the company of all liability. However. 49 “Tort Actions for Cancer: Deterrence. 45 Clean Water Act of 1972 33 USC §§ 1251 et seq (2006).org/pss/795902> (accessed 23 October 2011) 50 “The Fairness and Constitutionality of Statutes of Limitations for Toxic Tort Suits” (1983) 96 Harv L Rev 1683 at 1684 (author unknown). Plaintiffs carry an excessively onerous burden in bringing an action. “Cumulative Impacts: Death-Knell for Cost-Benefit Analysis in Environmental Decisions” (2008) at 28-29. and the exclusion of human emotion in the analysis. “Cumulative Impacts: Death-Knell for Cost-Benefit Analysis in Environmental Decisions” (2008) at 38-42. tort doctrine places excessive faith in epidemiological studies which are prejudicial against legitimate claims. thus creating problems in proving causation.48 The failure to consider cumulative impacts results in law becoming ‘ethically-unbalanced’ in favour of economic concerns because it underestimates the actual risk associated with pollutants. 4th ed.44 For example. 44 Ibid. “An Analysis of the Enhanced Risk Cause of Action (or How I Learned to Stop Worrying and Love Toxic Waste” (1988) 33 Vill L Rev 437 at 445. This undermines its ability to regulate the competing ideologies of public good. diseases originating from toxic exposure may be latent. “Cumulative Impacts: Death-Knell for Cost-Benefit Analysis in Environmental Decisions” (2008) at 33. causation mechanisms overlook the cumulative environmental impact of pollutants which considered individually. 123 A 192 at 193 (Vt 1924). 51 Ibid. This should be differentiated from cases where there are multiple ‘but-for’ causes. Environmental Regulation: Law. and regulating greed Tort law suffers from inherent flaws which reduces it ability to deter harm and safeguard rights. See link <http://www. In such instances courts have held causation to be satisfied: See Town of Sharon v Anahama Realty Corp.

A preference for false negatives means that a test result wrongly showing a risk not to be present when it is is preferred over a test of false positives which involves a test result wrongly showing a risk to be present when it is not. there are difficulties in identifying the responsible party and imposing punishment in instances of toxic waste dumping. Toxic Torts and Toxic Regulations” (1988) 19 Envir L 321 at 377-82. 56 Nathaniel Garrett. 62 These include lawyers’ and courts’ fees. Hazardous Waste Remediation: The Task Ahead 16 (Waste Management Research & Education Institute. A chemical is allowed to be produced until it is found to be excessively hazardous and warranting regulation. it imposes a heavy burden on plaintiffs. the Certainty of Harm. “Information Economics and Chemical Toxicity: Designing Laws to Produce and Use Data” (1989) 87 Mich L Rev 1795 at 1824. She explains the process by which chemicals become regulated under the TSCA. This is because courts have found epidemiological studies to be inconclusive in proving the link between a toxin and a disease. “Transnational Corporations and Environmental Damage: Is Tort Law the Answer?” (2002) 41 WBNLJ 399 at 418. “Toward a Diminished Role for Tort Liability: Social Insurance. 2002). 58 Kip W Viscusi. “The Environmental Fate of Toxic Waters. “‘Life is the Risk We Cannot Refuse’: A Precautionary Approach to the Toxic Risks We Can” (2005) 17 GEOIELR 517 at 519 and 532-533. at 531-532. 57 Michael Anderson. 63 Mary Lyndon. 64 Todd S Davis. Causation was not proven partly because the judge felt that animal studies “are not helpful in the instant litigation because they involve [a] different biological species. 65 Hongkyun Kim.56 Lastly. ABA 2d ed. A Comprehensive Guide to Redeveloping Contaminated Property 5 (Todd S Davis ed.65 (3) The limitations of law in spurring greater research and expertise Tort law’s extreme faith in science (especially in epidemiology) has reduced the motivation private parties have for conducting research. while their courts are ill-equipped to utilise complex models of valuation to decide environmental rectification awards. As Garrett puts it. The deterrent effect of regulation is circumscribed by a few factors. 60 The estimated clean-up cost of USA’s contaminated sites has been valued at $750 billion. 63 Thirdly. See Milton Russell et al. 55 CHOW JIAN HONG PAGE 6 OF 9 . The case involved claims by US veterans who were exposed to dioxin during the vietnam war from the use of agent orange herbicide in the war.58 Enforcement is further emancipated because liability regimes are either excessively lenient or severe. systematic underenforcement negates the efficacy of regulation. 59 See generally: Keith Meyer. “Superfund Reform: Clarification of Cleanup Standards to Rationalize the Remedy Selection Process” (1995) 20 Colum J Envtl L 183 at 213 (noting the errors in EPA's risk assessment process). “Brownfields. “Is the Korean Soil Environment Conservation Act’s Liability Too Severe?” (2006) 11 ALBLEOJ 1 at 27-28. Consider the Agent Orange Litigation: Re Agent Orange Product Liability Litigation 611 F Supp 1223 (EDNY 1985).57 These doctrinal flaws detract from the protection of rights and the effects of reducing environmental risk. Firstly. Waste sites are often under-utilised before they abandoned for new sites 64 by companies because of uncertainty regarding the threshold of contamination which triggers clean-up actions under CERCLA. the severe liability imposed by statutes like CERCLA60 merely causes companies to resort to extensive litigation to escape liability61 . See also Scott C Whitney. “Is the Korean Soil Environment Conservation Act’s Liability Too Severe?” (2006) 11 ALBLEOJ 1 at 27-29. at 1241). See also: Joan A Ferretti. Id. thus incentivising companies to remain ignorant to escape liability.ETHICS AND SOCIAL RESPONSIBILITY GROUP 1 ethical ban on human testing.59 However. regulation may indirectly promote rather than deter further environmental contamination. They are of so little probative force and are so potentially misleading as to be inadmissible” (Id. But while this approach is good for science. resulting in high transactional costs62 which have no relation to environmental protection. Companies willingly breach regulation in exchange for a minor increase to production cost. the reactive nature of regulation weakens deterrence. This is opposed to pharmaceutical Ibid. A toxic substance would have probably been used for a long time and would likely have to cause significant harm before regulatory attention is attracted. Environmental regulations espouse positive rather than negative modes of enforcement.55 Epidemiology also underestimates actual risk associated with potential toxins because of a scientific bias in favor of false negatives. Regulatory structures have further compounded the problem. “Looking for the Big Picture: Developing a Jurisprudence for a Biotechnological Age” (1993) 10 Pace Envir L Rev 711 at 718-719. For example. University of Tennessee. “[i]n science. Governmental Regulation. Secondly. and Contemporary Risks to Health and Safety” (1989) 6 Yale J Reg 65 at 92. 1991) 61 Hongkyun Kim. it is better to erroneously claim there is no effect than to erroneously claim there is an effect”. The costs of harm are reduced in countries with lower wage levels. She shows that environmental statutes are passed only after dangers posed by contamination are well-documented and are at best reactive in nature. tort-based approaches to valuation discriminate against poor countries.

Tort’s decision-making structure can be improved by developing overarching legal standards that recognise the interconnectivity between components of the biosphere. 68 It is also discomforting that international law’s role in encouraging greater research is also limited by the fact that international treaties are non-binding and are based on vague and general principles. “‘Life is the Risk We Cannot Refuse’: A Precautionary Approach to the Toxic Risks We Can” (2005) 17 GEOIELR 517 at 537. the standards should embody a balancing of interests70 that are based on multiple fields of research including both the hard sciences and the social sciences. The Uncertain Promise of Law: Lessons from Bhopal (University of Toronto Press. 74 The three principles are: (1) some harm must already have existed and the threat must be severe. at 54.75 In consequence. at 560. 1993) at p 25-28. Stephen Charest.71 The principle justifies the adoption of measures to prevent harm if there is a reasonable likelihood that severe harm will result. 73 Nathaniel Garrett. even where scientific evidence is inconclusive. rather than on those attempting to regulate it. 71 For the full argument. Fungicide. 70 Id. “Bayesian Approaches to the Precautionary Principle” (2002) 12 DUKE ENVTL L & POL'Y F 265 at 266-267.73 Consequently. it promotes greater fairness by rejecting a narrow view of science and recognising that scientific methodologies like epidemiology have their limits. Resolving the difficulties associated with causation calls for greater adoption the precautionary principle in environmental jurisprudence. 66 CHOW JIAN HONG PAGE 7 OF 9 . 1993) at p 22. companies have incentive to omit research into production chemicals to avoid regulation. The standards will ensure tort law’s decision-making framework is guided by holistic principles which will result in ‘ethically-balanced’ decisions that promote the deterrent goals of environmental tort doctrine more effectively. “The Status of the Precautionary Principle in Australia” (1998) 22 HARV L REV 509 at 545. and (3) that the principle is inapplicable where there is clear evidence disproving that a product engenders a particular risk. See Mary Lyndon. 75 Id. which strive to protect the entire system as a whole. rights can be better protected. various research studies conducted by different agencies about a substance’s risks may conflict with each other when disseminated to the public because agencies have conflicting goals and methods. while deterrence is reaffirmed. The principle itself is not unduly broad and is commonly subject to three provisos.74 The principle does not constitute an abandonment of science. and (2) the difficulties plaintiffs face in proving causation. Breaking the Vicious Circle: Toward Effective Risk Regulation (Harvard University Press. and Rodenticide Act where the EPA can require toxicity testing of pesticide ingredients before they enter the market (See Office of Technology Assessment Task Force. “The Moral Foundation of the Precautionary Principle” (2002) 15 J AGRIC & ENVTL ETHICS 39 at 39. Rather. There is a notable exception under the Federal Insecticide. See Nathaniel Garrett. 1988) (responding to a request for examination of federal testing of chemicals for carcinogenicity and subsequent use by regulatory agencies) at 13. 67 Jamie Cassels.67 Also. Solutions to law’s problems in reducing toxic torts (1) Legal reforms Tort doctrine has failed to sufficiently protect rights and deter environmental wrongs because of: (1) its failure to consider cumulative impacts in its cost-benefit decision-making structure. further retarding the growth of credible research. “Information Economics and Chemical Toxicity: Designing Laws to Produce and Use Data” (1989) 87 Mich L Rev 1795 at 1823-25. Identifying and Regulating Carcinogens 1-22 (Lewis. “Cumulative Impacts: Death-Knell for Cost-Benefit Analysis in Environmental Decisions” (2008) at 53-55. “‘Life is the Risk We Cannot Refuse’: A Precautionary Approach to the Toxic Risks We Can” (2005) 17 GEOIELR 517 at 537-538. “‘Life is the Risk We Cannot Refuse’: A Precautionary Approach to the Toxic Risks We Can” (2005) 17 GEOIELR 517.ETHICS AND SOCIAL RESPONSIBILITY GROUP 1 products which must be deemed safe before they can be produced. and will have to conduct greater research to prove the safety of their products. 68 Stephen Breyer. 69 Joseph H Guth. 72 Karsten Klint Jensen. companies no longer have the incentive to remain ignorant. (2) that the usual scientific methods cannot conclusively determine the potential risk.72 The principle essentially shifts the burden of proving a product’s safety on the party that attempts to benefit from it. see Nathaniel Garrett. 66 Therefore.69 The standards should not be excessively rigid so as to be prejudicial towards economic development needs. Instead. She notes that the EPA must prove that a chemical is an unreasonable risk to human health before regulating it which essentially establishes a presumption of safety under the TSCA for companies. Charmian Barton.

monetary liability should not exceed “the amount that anyone realistically believes society will commit to environmental remediation”.80 In addition. Regulatory Policy. Those who constitute a responsible party must be identified in clear terms. 79 Id. The delayed response of regulation originating from its reactive nature can be reduced by adopting a similar precautionary approach as in tort law.ETHICS AND SOCIAL RESPONSIBILITY GROUP 1 Regulation’s role in preventing environmental disasters has been limited due to: (1) failure to consider cumulative environmental impacts. This will reduce the threshold of proof needed to show that a substance constitutes an unreasonable risk. 77 Michael B Gerrard. no discussion of solutions would be complete without some mention of non-law solutions that protect public interest while benefiting companies which governments should encourage companies to adopt. 80 Ibid. The imposition of monetary liability should be guided by principles that embody a balance between rectifying contaminated environments and deterring future pollution. at 296. while rectifying awards have to be realistic lest companies resort to extensive litigation to avoid liability. The Kyoto Protocol and Beyond: Potential Implications for the Insurance Industry (June 10. and (3) systemic underenforcement. insurance creates a “reflexive style of regulation. perhaps even more effectively than governments. One solution would be the adoption of environmental liability insurance. making it easier to gain legal approval to regulate a substance. Secondly. the Certainty of Harm. He states that the excessive fines that CERCLA doles out “exceeds the amount that anyone realistically believes society will commit to environmental remediation”. “The Perils of Unreasonable Risk: Information. insurers can make changes to policies more efficiently than governmental agencies resulting in more effective regulation of the changing nature of environmental risks. 76 CHOW JIAN HONG PAGE 8 OF 9 . companies are financially motivated to engage in improved corporate conduct or face higher premiums. Cumulative impacts can be factored in by subjecting regulation to the same overarching environmental standards mentioned previously. Efficiency. 83 Jeffrey Kehne. Insurers have the motivation to scrutinise policyholders well beyond government regulatory requirements 79 and to force companies to adopt effective safety measures to reduce environmental or tortious risk. See John S Applegate. providing a framework for communicating to economic actors the nature and cost of environmental risks. See also generally: Keith Meyer.2. 82 This is especially so because the EPA and OSHA lack the resources to evaluate every industrial chemical in production. 1999) (UNEP Insurance Initiative for the Environment) at § 3. while economic growth is promoted through the growth of the insurance market. firstly. 78 Benjamin J Richardson. As Richardson states. 81 Ivo Knoepfel et al. “Encouraging Safety through Insurance-Based Incentives: Financial Responsibility for Hazardous Wastes” (1986) 96 Yale LJ 403 at 410-411. “Mandating Environmental Liability Insurance” (2002) 12 DUKELPF 293 at 295. “The Environmental Fate of Toxic Waters. and Toxic Substances Control” (1991) 91 Colum L Rev 261 at 289. Deterrence demands the imposition of high fines. (2) its reactive nature.82 Lastly. and Democracy Reconcilable?” (1998) 92 NWULR 797. This results in faster response times and exerts greater pressure on companies to conduct research in order to defend their interests. “Demons and Angels in Hazardous Waste Regulation: Are Justice.77 (2) Non-law reforms The biggest obstacle to preventing toxic torts is that man can always choose to disobey the law.78 Thus. Regulatory agencies can remedy under-enforcement by implementing clear and realistic liability schemes. This is because rectifying efforts and deterring future hazards may sometimes conflict with each other. insurers have the resources and skills to provide for the assessment. and offering incentives for firms to behave more carefully”. quantification and mapping of risks 81. Toxic Torts and Toxic Regulations” (1988) 19 Envir L 321 at 377-82. Thus. Methods of risk-assessment should be clear and comprehensive to avoid uncertainty.76 Liability should be adjusted proportionately with a company’s capacity to pay. As Gerrard’s implies. insurance grants an informal regulatory status on insurers. 83 This arrangement results in both private benefits and public good: environmental risks are reduced.

it can aid in limiting liability. Moreover. Conclusion Toxic torts present a real danger due to its global presence and implications. Companies have incentive to adopt such standards as it can lead to cost-effective management. 85 Regulatory bodies may be less inclined to apply strict liability doctrines if the company has demonstrated commitment to environmental protection. Market Share and Modern Rule” (1996) 9 TRANSNAT'L LAW 121 at 145-146. Joseph F DiMento and Francesco Bertolini. the nature of environmental risk is constantly changing.ETHICS AND SOCIAL RESPONSIBILITY GROUP 1 Another solution would be for companies to adopt the ISO 14.000 international environment management standards. One can only hope that research into this field will only grow stronger to reflect the force it exerts on the human race. auditing. see Elizabeth Pinckard. and analytical methods to minimise the environmental impact of their production processes. and to better comply with applicable environmental laws. and with it the scope of ethical issues. As such these standards supplement environmental jurisprudence. these non-law solutions act as good supplements to environmental law which will bolster the law’s efforts to reduce occurrences of toxic torts. With the growth of industry. 84 These universal standards provide companies with management. For the full argument. 84 85 CHOW JIAN HONG PAGE 9 OF 9 . “ISO 14000” (1997) 8 COJIELP 423. 86 Ibid. Judges may take into account actions a company undertakes to avoid legal violations. 86 Thus. “Green Management and the Regulatory Process: For Mother Earth.