Deciphering the Chemical Soup: Using Public Nuisance to Compel Chemical Testing

The problem of toxic ignorance plagues modern society. On a daily basis, each of us is exposed to hundreds of chemicals, the vast majority of which have been subject to little or no testing to determine whether they are toxic to humans or the environment. Many of these chemicals may turn out to be harmless. Some, however, may cause cancer, reproductive defects, and other harms. In toto, chemicals are believed to be responsible for tens of thousands of deaths per year. The systematic failure of manufacturers and distributors to test chemical substances is a rational response to marketplace incentives, tort liability rules, and existing chemical regulations. To address the problem of toxic ignorance, this Article proposes the recognition of a new type of public nuisance to compel chemical testing. In contrast to conventional toxic tort litigation, which requires a showing of physical injury, the failure to test itself would constitute a public nuisance. Inadequate testing puts the public health at risk, and the resultant lack of information undermines the ability of governments and individuals to protect public health. In addition to explaining the basis for applying public nuisance doctrine to the failure to test, the Article also examines practical considerations relating to how courts would enforce the duty to conduct testing. INTRODUCTION I. THE PROBLEM OF TOXIC IGNORANCE A. Background B. Incentives Not to Test C. Tort Law Exacerbates the Ignorance Problem 1. The Duty to Test 2. Difficulties in Enforcing the Duty to Test D. TSCA Makes Matters Worse 1. TSCA Does Not Require Toxicity Testing 2. TSCA Creates Disincentives to Test 3. The HPV Challenge Program Has Done Little to Bridge the Data Gap II. ARTICULATING AN ENFORCEABLE DUTY TO TEST IN PUBLIC NUISANCE DOCTRINE A. Public Nuisance Doctrine B. Applying Public Nuisance Doctrine to the Failure to Test C. An Alternative Public Nuisance Theory Centered on the Right to Information D. Litigating Public Nuisance for Failure to Test E. Other Proposals 1. Liability Without Causation 2. Statutory Reform III. WHAT MIGHT A DUTY To TEST REQUIRE? A. Toxicity Testing Methods in General B. In Vitro and In Vivo Testing 1. In Vitro Methods 2. In Vivo Methods C. Applying the Duty to Test in Specific Instances CONCLUSION INTRODUCTION We live in a chemical soup. On a daily basis, each of us is exposed to hundreds of chemicals, the vast majority of which have been subject to little or no testing to determine whether they are toxic to humans or the environment? Many of these chemicals will turn out to be harmless, but others will have detrimental or even devastating effects that will become apparent only with the passage of time. The problem of toxic ignorance is widely recognized, yet legislatures, regulatory agencies, courts, and the chemical industry have done relatively little to address the problem. Without analyzing the risks posed by chemicals before they become widely distributed, it is difficult to determine the precautions that should be taken or the scope of any health and environmental problems that may result. Experiences in which we have discovered the hazards of chemical substances belatedly--ranging from asbestos to benzene to polychlorinated biphenyls (PCBs)--illustrate the potentially broad and serious consequences of toxic ignorance. (2) Uncertainty is a constant companion in scientists' efforts to understand the phenomena occurring around us, and the field of toxicology is no exception to that principle." (3) Rarely do we know as much as we would like to know about cause-and-effect relationships. Yet the level of toxic ignorance that surrounds us is not the inevitable result of the limits of scientific inquiry. Rather, it is the consequence of deliberate decisions by the chemical industry and by those who incorporate chemicals into their manufacturing processes to avoid testing that would identify at least some of the likely harms. …