A Wrong in Search of a Remedy – Environmental Torts

Courts recognize that there is more than one way to measure damages with environmental torts. In response, some have been willing to be flexible and choose measures to allow as full a recovery as possible where appropriate to circumstances.[1] Whether the contamination involves air, water or soil, complicated statistical models and scientific analysis are often required to establish the nature, quantity, and economic value of the damages.

For example, in the context of air contamination, pollution events may be of short duration or periodic in nature, making it difficult, if not impossible, to measure precise concentrations during the event. Despite this, there are a variety of scientific tools accepted by the EPA and state pollution agencies which can help to quantify and establish the resultant damage. The EPA’s HAPEMS model (Hazardous Air Pollutant Exposure Model) is one such tool.[1] The HAPEM model has been designed to estimate inhalation exposure for selected population groups to various air toxics. Through a series of calculation routines, the model makes use of ambient air concentration data, indoor/outdoor microenvironment concentration relationship data, population data, and human activity pattern data to estimate an expected range of inhalation exposure concentrations for groups of individuals.[2] With models such as HAPEMS, damages due to atmospheric pollution can be modeled and put into terms suitable for economic modeling.

Similarly, valuing damages for water pollution often entails scientific modeling. For example, in Starrh & Starrh Cotton Growers v. Aera Energy LLC, 153 Cal. App. 4th 583 (2007), the court was required to evaluate the damages from irrigation water contamination caused by neighboring oilfield operations. There, the court ultimately relied on a “benefits obtained” approach, which it concluded could include profits enjoyed by the oil producer that were directly linked to the wrongful trespass. Ultimately, in a second, unpublished opinion, Starrh & Starrh Cotton Growers v. Aera Energy LLC, 2012 Cal. App. Unpub. LEXIS 608 (2012), the court applied that method using expert estimates of the amount of contamination that migrated to the farmer’s land and the resultant cost savings to the oil producers from not having to store or otherwise dispose of those pollutants. The Starrh cases are just one example of a creative yet scientifically rigorous approach to valuing the consequences of environmental torts.

Cotchett, Pitre & McCarthy, LLP is investigating a number of environmental claims involving groundwater, atmospheric releases, and soil contamination. If you have information regarding an environmental tort, please contact us.

[1] See Basin Oil Co. v. Baash-Ross Tool Co. (1954) 125 Cal. App. 2d 578, 606 [271 P.2d 122].

[2] See https://www.epa.gov/fera/human-exposure-modeling-hazardous-air-pollutant-exposure-model-hapem

[3] See, e.g., Ligocki, M.P., J.L. Fieber et al., 1994. “Sources, Projected Emission Trends, and Exposure Issues for 1,3-Butadiene”. Paper 94-WP91.06 presented at the 87th Annual Meeting of the Air & Waste Management Association, June 19-24, 1994.