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Causation in Government Regulation and Toxic Torts

Publication Title

Washington University Law Quarterly

Abstract

Part I describes and critiques the proposals to create no-cause legal regimes applicable to all toxic tort cases. Part I concludes that these proposals would impose intolerable costs on both the judiciary and society at large. Part II describes and critiques the Third Circuit's constitutional test for causation in the context of citizen suits brought to enforce the CWA. Part II concludes that the Third Circuit's approach impermissibly reallocates decision-making responsibility from Congress and agencies to courts. The Article argues that we should apply a new causation per se doctrine in cases in which a firm unlawfully exceeds the limits in its emissions permit. Ironically, while the no-cause proposals and the Third Circuit's approach obviously come from opposite ends of the political and ideological spectrum, they share a common flaw. Both would assign to the judiciary tasks that it is not capable of performing.

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