William H. Rodgers, Jr., Improving Laws, Declining World: The Tort of Contamination, 38 Va. U. L. Rev. 1249 (2004), https://digitalcommons.law.uw.edu/faculty-articles/244
Virginia University Law Review
tort of contamination
This article considers nature's "baseline" through the lens of modern environmental laws. We measure this "baseline" like never before and are proud of our databases on fish advisories, beach closures, and impaired water bodies, to mention a few. The ubiquitous legal response to these measures of environmental decline is the public warning "Don't Eat the Fish" and "Don't Drink the Water."
This article assesses the function, utility, and purpose of these public warnings and finds them wanting. Their principal value is that they serve as measures of lost natural capital and harbingers of shifting baselines.
Our descriptive journey leaves us in a world habituated by what I describe as the tort of contamination. This tort is a civil wrong that works deprivations of natural capital. This article concludes by sketching in the contours of this tort and remedies responsive to it.
[This article is an elaboration of my Monsanto Lecture, "The Tort of Contamination," delivered at Valparaiso University on February 20, 2003.]