FCPA Sanctions: Too Big to Debar?

November 1, 2011

The explosion of environmental statutes over the past forty years, giving rise to the field of environmental law, has created a critical and evolving question in our legal system as to how this comparatively new field of law intersects with the common law of torts. Defining the proper role of tort law in remedying environmental injuries is an important matter of public policy; the answer will determine what the tort system can and cannot achieve, inform what it should and should not achieve, and clarify which common law enforcement areas are actually voids. This information assists the judiciary on its role in addressing alleged injuries to the environment, and guides the legislative and executive branches as to whether and when action is required to fashion a legal remedy.

Tort law has historically provided the principal mechanism for remedying harms to the environment. The complexities of many modern environmental harms and the actual or perceived inadequacies of the common law, however, have led policy makers such as Congress to enact wide-ranging laws that provide legal remedies. This Article analyzes how these laws operate in relation to the common law of torts, and provides guidelines for judges to determine whether tort law provides a remedy for an alleged environmental harm. The Article thus seeks to answer a basic, yet largely unexplored, question in the legal system, namely the intersection of tort and environmental law.

November 2011

No. 2