ABSTRACT
“Life is the Risk We Cannot Refuse:” A Precautionary Approach to the Toxic Risks We Can
ByNathaniel Garrett
This note discusses the issue of toxic harms and advocates modifying the toxic tort system by applying a precautionary approach. Garrett advocates a toxic tort system that would take measures to prevent harm if there is a reasonable likelihood of severe harm, even if that harm cannot be proved with absolute scientific certainty.
The author compares his precautionary approach with the conventional tort system, which requires actual harm. The author argues that the rigidity of the conventional tort system does not reflect the values of society, and an alternate approach that lessens the standard of certainty needed for toxic tort claims would better serve the concept of risk-spreading. He then lists and details the four requisite elements present in the precautionary principle used in international law – trigger, certainty, burden of proof, and action – and how each element should be treated under a precautionary approach. The trigger requirement would be satisfied by a conservative estimate of the potential for harm, the certainty standard would be a reasonable scientific possibility of harm, the burden of proof in toxic tort claims should be partially shifted to the defendant, and the action to be taken in a toxic court case should be a jury trial.
Garrett concludes by refuting potential arguments against the precautionary approach. The author first responds to the criticism that the approach abandons sound science in favor of “junk science,” by contending that the approach instead recognizes and compensates for actual limitations of certain scientific methodologies that cannot, by their nature, be tested in clinical trials. Garrett next refutes the second claim that punishing companies for an agent or process that is not proven to be harmful could create a situation where the company adopts other practices that might actually be more harmful. Garrett counters that toxic tort cases should not be precluded simply because of possible future risks, and notes that if a trial judge had to weigh possible future risks in every case, they would be assuming the role of regulators making decisions about total social harm instead of analyzing the merits of the case in front of them.
