Claims alleging natural resource or ecological damage are on the rise, but the standards governing the performance of ecological risk assessments are  not nearly as developed as the standards used for evaluating human health risks.  Consequently, the legal defenses to natural resource or ecological damage claims are not as well-developed as the defenses to claims of risk to human health.   Fortunately for the environmental defense bar, Carol M. Wood, a partner at King & Spalding; Judi L. Durda, a vice-president and toxicologist/ecologist at Integral Consulting; and Stephen Rahaim, chief environmental counsel at E.I. duPont de Nemours and Company, have written an excellent primer for navigating through this wild legal frontier titled:  “When the “Exposed” Are Bugs and Bunnies: Defending Ecosystem Damage Claims” (DRI For The Defense, October 2017).

The article’s authors explain that the available guidance for ecological risk assessment is less extensive and more general than for health risks.  Therefore, the authors caution, private litigators and regulators can take advantage of “gray areas” caused by the complexities inherent in ecological risk assessment and the lack of clear consensus.  This fluidity and lack of uniformity works to the disadvantage of corporate defendants who have difficulty evaluating their liability exposure to vague and imprecise allegations.  In these actions, typically a private litigant or a governmental entity will allege that a release has resulted in an adverse impact to an ecosystem, thereby requiring extensive remediation costs or personal injury compensation.  Instructive cases cited in the article include Ruff v. Ensign-Bickford Indus., Inc., 171 F.Supp.2d 1226 (D. Utah 2001)(toxic tort case alleging that ingestion of contaminated produce and fish caused cancer) and  Interfaith Cmty Org. v. Honeywell Int’l, Inc., 263 F.Supp.2d 796 (D.N.J. 2003)(trial court holding Honeywell strictly liable for disposal of chromium ore residue at former production facility due “abnormally dangerous activity”, later affirmed by the Third Circuit.)

The article’s authors provide several strategic considerations defense counsel should keep in mind when litigating these cases.

• Know the motivation of your adversary.  Is the governmental plaintiff technically oriented or is he politically oriented.
• Whether the case will be heard by a jury or a judge
• The judicious use of site-specific data to undercut generalized allegations concerning a material’s potential to cause harm
• Examine other causative factors that may be responsible for the alleged damages, include other man-made sources.
• Consider whether what is being alleged to be a site-specific harm has more regionalized roots
• Use strong demonstrative evidence to undercut plaintiff’s claim of an ecological disaster
• Challenge the inputs and assumptions used by plaintiff to create his quantitative model of ecological risk
• Focus on whether it may be argued that the “cure” (the proposed remediation plan) is worse than the alleged “harm” and is being proffered solely to augment damages claims.
• Work early on to establish rapport with regulators, including joint funding of studies and
• Advocate science-based rather than fear-based solutions.

Increasingly, governmental entities are employing the  public nuisance doctrine and other novel theories of recovery and demanding  compensation from manufacturers based on their customers’ use and release of products into the environment.  These lawsuits raise the nightmarish specter of unlimited financial exposure for corporate defendants under circumstances in which the legal claims are “so vague and malleable that it can accommodate almost every wrong”.  See Peter Hayes, “Is the Public Nuisance Universe Expanding?”, 32 Toxics Law Reporter 86 (BNA 1/26/17).  In a recent prior article, I discuss that these claims pose a danger of radicalizing the court system.

In cases seeking damages for “ecosystem” damage, the unorthodox use of public nuisance law threatens to create a Palsgraf v. Long Island Railroad Co. on steroids.  In finding for the railroad in Palsgraf in 1928,  Benjamin Cardozo, then the Chief Judge of the New York Court of Appeals, recognized: (1) that there was no negligence on the part of the defendant  railroad’s employees; and (2) that the railroad did not owe a duty to care to Mrs. Palsgraf because  her injury was not foreseeable.  These keys pillars of American tort law–negligence, duty, proximate cause and foreseeability– are often swept under the rug in litigation seeking ecosystem damages. Some legal commentators have criticized the Palsgraf decision on the ground that Justice Cardozo failed to consider Mrs. Palsgraf’s dire financial circumstances.  If he had considered her personal circumstances, rather than follow the letter of the law, our tort system would have become all the poorer as a result.