Jo Goodie
4.1 Introduction
Legal understanding of the environment is contingent; it is shaped by the law’s interface with a range of non-legal discourses and ideas. Attempts to govern the environment have stretched and unsettled legal orthodoxy. The environment, as a legal object, is not simply a physical space; it is a con-tingent and instrumental object, determined by human activity, social values, and legal and non-legal calculations. The environment does not fit readily into any of the usual categories pertaining to legal rights and interests.
The ‘environment’ acquires its meaning through the continuous inter-change of the many differently located understandings and attempts to define and articulate environmental entities, ideas and problems. Since the mid-twentieth century, ecology, in synthesising ethics and ecological science, has become the dominant means of understanding the environment and envir-onmental health.1Although it began to emerge much earlier, from the mid-twentieth century an environmental way of thinking has shaped the ways in which humans live, work, and recreate. In turn the environment has been defined and limited by patterns of individual and collective consumption.
These patterns of consumption have placed certain environments at risk, and have created toxic environments that have become an object of‘risk anxiety’.
This chapter considers the law’s delineation of toxic environments, through an analysis of how the common law has assimilated the vocabulary and techniques of risk calculation in the legal assessment of environmental harm and hazard in toxic tort litigation. The chapter consists of seven main sections.
Thefirst of these, section 4.2, outlines the emergence of an ecological nar-rative through which the notion of environment is articulated and acted upon. The second, section 4.3, considers how risk, which is itself the product of a complex of rationalities from the scientific and economic through to the anti-materialism of ecologism, is central to the ecological narrative. A het-erogeneous range of risk calculations, vocabulary and techniques have been taken up to articulate and delimit the characteristics of specific environments, and to shape the manner in which we interact with, and within, those
environments. Section 4.4 discusses the significance of toxic tort litigation, a modern variant of common law actions in negligence and nuisance, initiated by plaintiffs exposed to one of the ubiquitous, but often hidden, toxic hazards of the post-industrial society. The remaining four sections 4.5–8, analysing how environmental hazards are interpreted, understood, acted upon (or ignored) by the law in toxic tort claims, consider the insurantial, scientific, clinical and commonsense practices of risk.2
4.2 Ecological narrative
Modern environmental understanding has emerged through the application of technical scientific knowledge, rendered more meaningful through various interpretive frameworks of‘environmental sensibility’, which treat the environ-ment, not as a thing, but as a dynamic process of which humans are a part, which has a history, an economy, and a power to transform and be trans-formed. The ecological narrative through which the environment has been identified and become an object of legal attention embraces two distinct rationalities, the moral agendas and discourse of ecological ethics, and the economic model of scientific ecology.3
The emergence of the life sciences and biological discipline comprised various features that impacted upon the calculation, description and under-standing applied to the environment, in terms of the explanation or pro-blematisation of nature. Whereas the Nature of the Enlightenment scientist was a wholly material world of things, the ecological narrative, through which contemporary understanding of the ‘environment’ is constituted, emphasises the relationships and interactionsbetween things. Initially, ecological science theorised and modelled natural systems as tending towards equilibrium;
this quite mechanistic and rational understanding began to shift in the 1970s in the face of chaos theory and alternative modelling. A‘new ecology’emerged which understands the operation of natural systems in terms of‘the possibility of instability, variability and uncertainty’.4Epidemiologist Tony McMichael argues that unlike the traditional scientific disciplines contemporary ecological science:
embraces the complex interplay between animate and inanimate com-ponents; it studies dynamic, non-equilibrial and non-linear processes.… To an ecologist the world is neither deterministic nor randomly unpre-dictable; rather, it is a world of contingent probabilities within mutually adapted, self-ordering systems.5
Since the mid-twentieth century, ecology, which synthesises a body of ethical thinking as well as a specifically ecological science, has become the pre-dominant means by which the environment and environmental health are interpreted and understood.6As well as underwriting and inspiring the ethic
of environmentalism, this ecological rendering of the environment has had practical and political significance. It has identified the ‘environment’ as a special focus of government, rather than a physical space that is simply the site of public health interventions or population resource dilemmas. The scientific conceptualisation of the‘eco-system’and the theoretical and technical focus of ecological science upon‘energyflows within a closed system’has shaped and modelled our practical scientific engagement with the natural world.7 While Humboldt, Darwin and their peers first observed and attempted to map the natural world as a complex of discrete yet interconnected‘environments’, their scientific investigations, and many of those that followed, were inherently lim-ited by dependence upon large-scale physical observation and data collection.8 Ecological systems modelling has allowed the pragmatic investigation of the interconnectedness of the global environment by simulating the various func-tions and activities of specific ecosystems, making it possible to efficiently conduct macro-calculations of environmental conditions, the impact of resource exploitation or levels of degradation caused by industrial develop-ment. Such scientific knowledge in combination with other knowledges, especially from the social sciences, has led to certain problematisations of the environment, notably the extent of human dependence upon and the limita-tions of human capacity to control the natural world or the hazards pro-duced by human activity. The extent and pervasiveness of anthropogenically produced environmental hazard is uncertain: while scientific investigation may have initially identified toxins accumulating in the environment, the capacity of science to readily identify the source and extent of environmental harm and toxic risk is limited and often compromised by the ‘parochial methods and models’ of science itself.9 This uncertainty persists across dimensions; environmental risk is not confined by‘geographical (or jurisdic-tional) boundaries, temporal (or limitation) links and social (duty) relationships between those creating the harm and those who are victims of it’.10
4.3 Disclosing the‘risk’ environment
Risk has become an idiom through which the environment is made‘thinkable’
and ‘amenable to political deliberations’. The refiguring of environmental uncertainties as probabilities; as‘risks’that can be calculated and managed, sus-tains the moral, as well as the highly rationalised and technical, aspects of con-temporary understandings of the environment.11Paul Rutherford argues that:
the relationship of society to the natural environment is conceived in terms of the language of security and risk; ecological hazards and insecurity must be addressed by putting in place behaviours that minimize risk.12 The ‘risk idiom’ produces its own form of what Michel Foucault would call‘bio-political’and‘bio-economic’reality which shape the ambition (and The ecological narrative of risk 67
the limits) to control ecological hazards and maintain environmental secur-ity.13 In various ways, modern environmental governance is shaped by ‘risk calculations’, these calculations are heterogeneous; the technologies through which risk is articulated are not uniform, and the domains of risk-based governance are diverse and underwritten by similarly diverse conceptions of risk.14Eco-systems along with environmental and human health are mapped and governed through specialist calculations as varied as epidemiology, environmental impact assessment, and protocols for ‘scoping’ corporate greenhouse gas emissions,15which evaluate the‘risk-weighted consequences’ of activities and resource use that have the potential to impact on environ-mental well being. This form of ‘regulatory ecological science does not so much describe the environment as both actively constitute it as an object of knowledge and, through various modes of positive intervention, manage and police it’.16It is these types of calculations and methodologies that are taken up by environmental administrators (as well as tribunals and courts when there is dispute) to make informed calculations of environmental wellbeing.
In pointing to the significance of risk as a means of understanding and acting upon the environment, I am observing, as many governmentality theorists have done, that the institutional spread of risk-focused governance has produced certain approaches to understanding and acting upon the environ-ment.17The predominance of certain forms of scientific risk methodology has not excluded other types of environmental assessment. Risk analyst Aynsley Kellow argues that ‘[e]nvironmental issues inevitably entail questions of both morality and practicality… There is no objective scientific basis for public policy in general and environmental policy in particular.’18Shifts in societal attitude to risk increasingly impact upon legal attitudes and processes, the governmentality approach adopted here facilitates a closer examination ofhow the law engages with and assimilates various discourses and practices of risk.
4.4 Toxic tort
In the wake of the possibility of identifying the effects of exposure to toxic substances and tracing their synergistic effects, the common-law principles of negligence and nuisance, originally developed in the nineteenth century in response to the new hazards of the industrial age, have been adapted (in the form of toxic tort) to offer a remedy in the face of a new set of previously unknown hazards.19
Toxic tort litigation is one of the fora in which factors which ‘make the environment an important concern for individuals’are articulated.20It provides a vehicle for discerning the relationship between body, hazard and environ-ment.21Actions in toxic tort endorse and articulate risk anxiety, particularly in those instances where the litigation gives publicity to latent hazards and the risk of exposure to those hazards, which had previously been little known in the public domain.22As Ulrich Beck observes:
Dangers, it would seem, do not exist ‘in themselves’, independently of our perceptions. They become a political issue only when people are generally aware of them; they are social constructs which are strategically defined, covered up or dramatized in the public sphere with the help of scientific material supplied for the purpose.23
Through its key processes of investigating, judging and reporting on the effects of toxic exposure or the hazardous nature of certain environments and environmental practice, toxic tort litigation reveals the pervasiveness of certain environmental risks.24 Toxic tort litigation goes beyond simple iden-tification of a hazard and the risk associated with exposure to that hazard.
Indeed the court relies on the application of risk technologies to translate the circumstances of a plaintiff’s exposure into a justiciable form. It is the incor-poration and reliance upon scientific forms of evidence, such as the actuarial forms of risk assessment of the epidemiologist and the engineer, that have allowed the courts to assume a role of disinterested, yet authoritative, arbiter on risk. But the court does more than consider risk in these technological terms: a closer consideration of toxic tort litigation reveals that while parties must be able to point to objective, technical or scientific risk assessment which support their claim or defence, the success of a plaintiff’s or defen-dant’s case will also be determined by evidence of other non-scientific, and quite subjective, calculations of risk. The focus of the litigation is the plain-tiff’s situated and particular experience of a defined local environment, as well as commonly held attitudes to managing environmental risk, which assumes the plaintiff, not just the defendant, is an informed and ‘rational’ individual, both risk aware and averse.
Pat O’Malley’s25 depiction of the three manifestations of risk in the legal domain is useful in delineating how risk operates in toxic tort litigation. The harm caused by exposure to a toxic hazard is theobjectof the litigation, the purpose of which is to assign responsibility for the management of risk taking;techniquesof risk assessment are employed in the litigation to determine the limits of legal liability; and the risks revealed and assessed through the litigation are assigned moral value, the application of the principles of negligence or nuisance either privilege or seek to limit those risks. It is through the litigation’s multi-layered assessment of the risk that the envir-onment is situated as a ‘complex moral problem invoking notions of value and responsibility’.26
4.5 Insurantial practices of risk
Jane Stapelton observes that the increasing ‘public policy reliance’ on a prudential response to risk has been paralleled by ‘a general broadening of the catchment of situations recognised by the courts as giving rise to tort entitlements’.27 The prevalence of liability insurance has transformed The ecological narrative of risk 69
the law of tort in one other respect as well. It has tended to marginalise individual responsibility as a factor determining the outcome of a claim.
Morton Horwitz argues that ‘[l]iability for injury has become just another cost of doing business, which could be estimated, insured against, and ultimately included in the price paid by the public’.28 If one is talking about the standard personal injury claim then Horwitz’s assessment of the trajectory of tort litigation is reasonable. John Fleming observes that a defendant’s insurance may very likely undermine any deterring or punish-ing effect.29 But examination of toxic tort litigation highlights the continu-ing significance of individual responsibility as the basis for determining liability.
The availability of liability insurance allows the system of tort law to function but does not make redundant the legal assessment of toxic harm, namely how it came about and what injuries it caused. François Ewald holds that the law and insurance each provide a means of assigning responsibility and making compensation for loss, and that the rationality of each may be applied to the same object to different ends. He says, ‘Insurance and law are two practices of responsibility which operate quite heterogeneous categories, regimes, economies; as such, they are mutually exclusive in their claims to totality.’30 The fundamental difference between the two is that the juridical focus on the occurrence of an event is singular and moral. By contrast, the insurantial approach eschews any question of moral responsibility, and instead factors the probability of such an event occurring and recurring in a predictable rule-like fashion.31
Insurers may have a capacity through the rule of subrogation to dominate the litigation process, but they do not litigate as if factors beyond their own actuarial calculations are irrelevant. Courts must weigh up competing accounts of the type of risk to which the plaintiffwas exposed. These accounts come from the parties themselves, as well as from experts who provide tech-nical assessments of the degree of risk to the plaintiffof the particular toxic exposure, and also from other lay witnesses, such as workmates, whose role is to provide the court with a real appreciation of the environment in which the plaintiffwas exposed to risk.
4.6 Scientific practices of risk
Expert scientific evidence relating to causation, and the risk presented by exposure to a particular toxin, toxic event or environment, is an integral part of all toxic tort litigation. It provides the evidence of possibility which courts use to map a global picture of the potential hazards to which a plaintiffmay have been exposed. Unlike tort litigation of the nineteenth century, which was premised on the assumption that there is usually a single line of causation linking the defendant’s negligence and the plaintiff’s injury, in contemporary toxic tort establishing a causal nexus between the plaintiff’s injury and
exposure to a toxic environment is much more complex. In toxic tort cases, the model employed to determine the actual cause of the injuries is not based on direct causality but on a‘multi-factor’approach which understands
‘the problem of health in a broader context’whereby‘disease can be attrib-uted to exposure to a variety of toxins as well as the lifestyle and patterns of consumption of plaintiff themselves’.32 Through the application of such an approach, ill health, disease or injury suffered by the individual is inher-ently referable to the health of the broader environment. The emergence of toxic tort as an identifiable class of litigation has followed developments in science which have allowed the causes of certain diseases and the side effects of exposure to certain types of chemicals and other toxic substances to be identified.33 Although these advances in scientific diagnostics and epide-miology have allowed the possibility of attributing legal liability, establishing that there is a causal link between the toxic exposure and the injury is often speculative at best:
In most toxic tort cases, one or more of these elements is contested … the state of knowledge with respect to many toxic agents is extremely imperfect…what is known about a chemical from the general scientific literature almost always has to be supplemented by knowledge acquired about particular individuals and communities of claimants.34
The identification and delineation of a toxic environmental hazard is multi-layered. As Valverde et al. observe, conceptions of risk are by necessity conflated in toxic tort litigation.35 Scientific evidence must be strategically framed by other types of evidence. Evidence such as epidemiological calcu-lations of risk is not created for legal purposes; rather, the parties and the court itself must translate, and consequently transform, the evidence before it can be usefully taken up in the litigation. Indeed, the Australian courts freely acknowledge:
The pragmatic assessment of probable cause as a basis for tortious liability cannot be wholly constrained by the scientific and philosophical purity of epidemiology, which essentially depends upon a comparison of the data obtained in controlled circumstances.36
Jenny Steele notes that the court employs a decision-making model which
‘constructs a moment of decision which may be purely hypothetical’ (knowledge of the risk which exposure to the toxin presented at the time of the plaintiff’s exposure)‘and uses this to draw the“right”conclusion’(whether the defendant should have known of the risk and whether the exposure is likely to have caused the injury).37
That approach to evaluating and positioning epidemiological accounts of risk is apparent in the leading case of Seltsam v McGuiness (hereinafter The ecological narrative of risk 71
Seltsam). The New South Wales Court of Appeal held that epidemiological studies‘should be regarded as circumstantial evidence which may, alone or in combination with other evidence, establish causation in a specific case’.
The court recognised epidemiology’s ‘potential utility’ in toxic tort cases, because it may be able to‘fill the gap’where ‘medical science cannot
The court recognised epidemiology’s ‘potential utility’ in toxic tort cases, because it may be able to‘fill the gap’where ‘medical science cannot