Stratospheric Ozone Damage and Legal Liability
US public policy and tort litigation to protect the ozone layer
While government enforcement of laws and regulations to control the production of chloroflurocarbons in 1987 has been hailed as exemplifying the precautionary principle, for almost two decades US companies failed to take precautionary measures to prevent chemical emissions, despite the probable risk of stratospheric ozone loss. As a result, human harms in the form of skin cancer have reached epidemic proportions globally and in the United States where, today, one person dies every hour from skin cancer. This book reviews U.S. laws, regulations, and policies, as well as case law regarding similar toxic tort cases to consider whether companies can and should be held legally liable under tort common law theories and related tort justice theories for having contributed to increased risks of skin cancer.
Table of Contents
1. Introduction 2. Case defendants and evidence 3. The plaintiffs, damages and liabilities 4. Negligence and strict product liability 5. Public Nuisance 6. Statutes of limitation and repose 7. Federal and State Law Pre-emption under the Clean Air Act 8. Regulatory compliance defence 9. Downstream liability question 10. Open and obvious risks 11. The basis for assessing why the ozone layer case is relevant and important 12. Tort law policy basis for the ozone layer case 13. Lessons and benefits for climate change policy and litigation 14. Conclusion
Lisa Elges is a leading climate and environmental governance policy analyst. As Head of Climate Policy at Transparency International, she has authored numerous articles on the integrity of climate and carbon finance. She holds an LL.M. in International Human Rights Law from the University of Essex, UK, and Doctorate in Political Science at the Freie Universität, Germany. She has three children and lives and works in Brussels and Berlin.
"In this important new book Dr. Elges reminds corporations that they are legally responsible for actions that harm human health and natural environments. Stratospheric ozone depletion causes skin cancer, cataracts, suppression of the human immune system, and damages materials, crops, and natural ecosystems. Courts and juries can determine who knew what and when and can judge whether corporations withdrew their dangerous chemicals after they should have known better. Accountability rights wrongs and also motivates corporations to be more careful in what they market. Read this book be inspired to action."
Dr. Stephen O. Andersen, Director of Research, Institute for Governance & Sustainable Development, former Deputy Director of Stratospheric Ozone Protection for the United States Environmental Protection Agency
"While the phase-out of ozone-depleting chemicals has been the greatest success of global environmental law, this book explores the provocative possibility that it could have occurred even faster if law had held the manufacturers of such substances liable for the foreseeable harm their products caused."
Robert V. Percival, Robert F. Stanton Professor of Law and Director of the Environmental Law Program at the University of Maryland Carey School of Law
"The principle of legal liability is essential not only to ensure full compliance with environmental laws and regulations but also to ensure full respect for Mother Nature, which at the end of the day is our everyday provider. If we do not take care of the earth today, including our climate system, tomorrow we will suffer consequences that many will not be able to endure."
Gustavo Alanis-Ortega, President, Mexican Environmental Law Center (CEMDA).
Dr. Elges has written an important book that builds the case for legal liability of those corporations that put the planet at risk by manufacturing global environmental change. The lessons outlined here for potential liability due to ozone depletion provide a timely and valuable blueprint for current discussions of legal liability for those corporations that have knowingly and recklessly contributed to climate change.
David Hunter, Professor of Law, Director, International Legal Studies Program, American University Washington College of Law
The arguments explored in this thought-provoking book raise important considerations also in relationship to other environmental issues, such as climate change. The law has been a powerful force in changing industrial behaviour. Could the law play a larger role in protecting humanity from global environmental risks? Dr. Elges makes a major contribution to these emerging discussions.
Prof. Miranda A. Schreurs, Professor of Environment and Climate Policy, Bavarian School of Public Policy, Technical University of Munich.
"The shadow of liability is a powerful prod to corporate boards and CEOs, reminding them that justice requires responsibility and that their actions must conform to new norms that recognize the primacy of our Planet. Failure to understand this will have consequences, as Dr. Elges’ book shows. Tort law has evolved since the beginning of the Industrial Revolution to protect society from new risks, and it is now evolving to protect us from the risk of climate change."
Durwood Zaelke, President and founder, Institute for Governance & Sustainable Development, and co-director of related program at the University of California, Santa Barbara’s Bren School of Environmental Science & Management
An important and timely book by Dr. Elges that reminds us of the role that we lawyers can play to protect our home, the Earth. In times of urgency to act to avoid irreversible climate change, in times where imagination, solidarity and responsibility are the values that need to guide our actions to ensure the future of our children, Dr. Elges not only shows us the path we should take but how we could advance faster. Lawyers, judges, policy makers, CEOs, activists and social leaders would benefit from Dr. Elges wisdom and research to make the decisions to build safe and sustainable societies.
Romina Picolotti, 2006 Sophie Prize winner, former Secretary of Environment & Sustainable Development of Argentina, President, Center for Human Rights & Environment
"Dr. Elges’ book is a road map for a massive tort case against the companies making the products that caused an epidemic of skin cancer by destroying the protective ozone layer—one skin cancer death every hour in the US alone—while also contributing significantly to climate change. The road map can now show a new generation of lawyers how to impose liability against companies causing climate change. The book should be read by every law student. It will inspire a new army to restore climate justice."
Antonio A. Oposa, Jr., Global environmental litigator, 2009 Ramon Magsaysay winner, and author of Shooting Stars and Dancing Fish.