Vanderbilt Law Review

First Page



Over the last two decades, a new class of torts has emerged that targets personal injuries caused by toxic substances in the environment. These hybrid environmental torts are quite distinct from the trespass-nuisance precedent that is part of traditional tort theory; nor are environmental torts simply a subset of the mass hazardous sub- stance litigation that has remade product liability law. Environmental torts are informed, in a way product law is not, by environmental regulation. These torts are unique because their deterrent signal is transmitted to producers of hazardous environmental pollutants by litigants who have suffered physical injury or disease.

Environmental tort litigation appears to be burgeoning. While comprehensive evidence on the number and average severity of environmental tort claims nationwide is not available, published cases would suggest both are at unprecedented high levels." Yet the topic is only peripherally discussed in law reviews, and has not penetrated most law school courses on tort law. The academic silence is perhaps understandable, since the subject of environmental torts tends to fall between two relatively well-circumscribed disciplines, tort law and environmental law. Moreover, the teachers and theoreticians of both subject areas are somewhat introspective at present. Over the past decade, the debate over reforms that would retard the growth of certain kinds of tort claims has preoccupied many tort law professors and some practitioners. Environmental law appears to be experiencing a severe mid-life crisis, as academics struggle to redefine a subject that is increasingly composed of stultifyingly technical statutes. The result of such distractions is that an exciting hybrid of personal injury and environmental law has evolved without much analysis.

This essay develops a theory of environmental torts that has both positive and normative aspects.' The positive theory describes why environmental tort litigation occurs. It emphasizes the economic gain, by at least some of the participants, that drives the enterprise. In much of tort law, environmental torts included, the critical economic players are the plaintiffs' attorneys. If the compensation available through contingency fees from personal injury suits is insufficient, attorneys will pursue other kinds of cases. Hence, a positive theory of environmental torts must explain how attorneys are able to gain compensation for their clients, and themselves.