Traditionally, legal remedies for environmental problems have been provided by common law (judge-created law developed through private lawsuits). Common law provides remedies including compensation to victims injured by an other's negligence. For example, if appropriate care is not taken in the disposal of a toxic substance and this substance enters a farm pond, killing or injuring the farmer's livestock, the farmer can sue the polluter for damages.
United States proposals for reforming victims' compensation fall into two general categories: 1) an approach that combines administrative relief with common law tort (a tort is a wrong actionable in civil court) reform; and 2) proposals that provide administrative relief, but eliminate tort remedies. The first approach was developed by a study group consisting of 12 attorneys designated by the American Bar Association, American Trial Lawyer's Association, the Association of State Attorneys General, and the American Law Institute. In 1980, Congress asked this study group to consider the hazardous substance personal injury problem in conjunction with the Comprehensive Environmental Response, Compensation and Monitoring Act (Superfund). The study group recommended a "two-tier" approach. The first tier, which would be the primary remedy for injured persons, would consist of administrative relief. This part of the system would operate in a manner similar to workmen's compensation. Within three years after the discovery of an injury or disease, an applicant would make a claim based on proof of exposure, existence of the disease or injury, and compensable damages. The applicant, without having to show fault, would receive medical costs and two-thirds of earnings minus the amounts that could be obtained from other government programs. The money for this victims' compensation fund would come from industry sources through a tax on hazardous activities or some other means of eliciting contributions.
Most claims would be dealt with through the administrative system without resort to the courts. However, the second tier in the program would preserve existing tort law. Plaintiffs who chose this option would have to submit to the costs and delays of legal proceedings. However, a plaintiff able to win in the courts would have the right to collect unlimited damages, including full loss of earnings and compensation for pain and suffering.
A second proposal that combines administrative relief with traditional tort remedies originated at the Environmental Law Institute . Its director, Jeffrey Trauberman, published an extensive article that appeared in the Harvard Environmental Law Review in 1983 proposing a "Model Statute." The approach was different from the Attorneys' Study Group because it emphasized common law tort reform as the primary remedy, with the victims' compensation fund serving as "a residual or secondary source of compensation" in instances when the responsible party could not be identified, had become insolvent, or had gone out of business.
The major common law problem that Trauberman addressed was that of causation. Traditionally, the courts have been reluctant to accept probabilistic evidence as proof of causation. Trauberman, however, argued that evidence from epidemiology , animal and human toxicology, and other sources on the "frontiers of scientific knowledge" should be admitted. When a plaintiff was unable to demonstrate a "substantial" case of harm, Trauberman would permit "fractional recovery." By "fractional recovery" he meant that if a hazardous waste dump increased the total number of cancers in an area from 8–10%, then the increased incidence of cancer brought on by the dump was 25% in these cases, victims should be able to recover 25% of their costs. Recovery for pain and suffering, which was not available to fund claimants, would be available through litigation. These balanced proposals are to be distinguished from bills introduced in the U.S. Congress that would create an administrative compensation system but preclude tort remedies.
In contrast to the U.S., Japan has adopted an approach that combines administrative relief with tort justice. The 1973 Law for the Compensation of Pollution-Related Health Injury, which replaced a simpler 1969 law, established an administrative system to oversee compensation payments. Upon certification by a council of medical, legal, and other experts, victims of designated diseases are eligible for medical expenses, lost earnings, and other expenses, but they receive no allowance for non-economic losses such as pain and suffering. Companies pay the entire cost of this compensation. There has been an administrative review system, but in no case does this system prohibit recourse to the courts. In the United States, the institutions responsible for developing victims' compensation policy have not, as yet, forged such a comprehensive policy.
[Alfred A. Marcus ]
Marcus, A. A. Business and Society. Homewood, IL: Irwin Press, 1992.