Private Law Theory

ABSTRACT
Corporate interests have contaminated the world and our bodies with chemical pollutants in pursuit of profit. In this article, I argue that this contamination of our bodies with chemicals constitutes an offensive battery, a violation of our right to be free from non-consensual contacts. I describe how our bodies are contaminated via factory discharges, train derailments and chemical spills, our use of consumer goods, and the workplace. I argue that traditional toxic tort and statutory environmental law do nothing to prevent this and in fact encourage polluting behaviors by limiting the polluters’ right to pollute only when the pollution can be scientifically shown to cause us physical harm. I discuss how pollution in the absence of physical harm still violates our interest in bodily integrity and autonomy and treats us as less than, as mere means for corporate interests to realize their profits. I analyze the prima facie case for treating pollution as an offensive battery, focusing on the elements of voluntary act, intent, and offense. I evaluate consent and necessity as possible defenses and conclude that they do not hold in most cases of chemical pollution. I discuss the remedies available for pollution victims, including compensatory damages for those who need medical monitoring, punitive damages to punish the polluters who wantonly disregard our rights for their own profits, and injunctive relief to stop ongoing polluting behaviors and inform the public about the chemicals to which they are exposed through consumer goods.

In sum, this article is an attempt at a first step to putting up meaningful boundaries on the cavalier polluting behaviors that have gotten us to this point. There is an urgent need to curtail the discharge of novel substances, in particular, and toxic offensive battery is a theory of liability that could be employed to hold polluters accountable. It is also a theory of liability that reflects a different way of thinking about our relationship to pollution, something we desperately need after more than fifty years of ineffective policies.

Polk, Amber, Toxic Battery: Pollution as a Dignitary Tort (August 15, 2023), Florida International University Legal Studies Research Paper No 23-09; Boston College Law Review, volume 65, no 8, 2024.