; Proof of Causation in a Private Action for Acid Rain Damage
Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out
Your Federal Quarterly Tax Payments are due April 15th Get Help Now >>

Proof of Causation in a Private Action for Acid Rain Damage

VIEWS: 0 PAGES: 34

  • pg 1
									PROOF OF CAUSATION IN A PRIVATE
ACTION FOR ACID RAIN DAMAGE

                                I.   INTRODUCTION

   The acid rain problem has become one of the major environmen-
tal issues of our day.1 Each new report on the subject is more dis-
turbing than the last, documenting serious and often irreversible ef-
fects of acid rain on lakes and streams, 2 fish and other aquatic life,
                                                                       3

         4 soils,5 buildings,' and even human health.7
forests,
   Present federal legislation is inadequate to deal with acid rain ef-
fectively.8 Proposed legislation could help ameliorate the problem,
but even if adopted the effects of such proposals will not be felt
until early in the next century. Furthermore, the current adminis-
tration, particularly the Environmental Protection Agency (EPA),
has resisted all efforts to address the acid rain problem. 10
   A private action for damages caused by acid rain is an attractive
short-term solution for individuals or classes of persons whose prop-
erty or livelihoods are being threatened by acid rain. There are sev-
eral obstacles, however, to the success of a private action for acid
rain injury."' This Comment addresses the principal obstacle, the
traditional tort law requirement of proving causation in fact. Acid
rain is the result of an aggregation of emissions from hundreds of
major sources, transported great distances and chemically altered
before being deposited.2 It is impossible to trace individual episodes
of acid rain to the particular emission sources causing the problem
or to apportion acid rain injuries among contributing polluters.' 3 To
require a plaintiff in an acid rain suit to prove causation in fact
would effectively bar such actions and allow polluters to continue

   1. See, House of Commons, Canada,Sub-committee on Acid Rain, STnU WATERS,
THE CHILLING REALITY   OF Acm RAIN, 32d Parl., 1st Sess., 11 (1981) [hereinafter Srn±
WATERS]. See also Freedman, War Brews Over Acid Rain, Nat'l LJ., Oct. 25, 1982, at
1, coL 1; Pasztor, Search for Plan to Control Acid Rain Deeply Divides Industries,
Regions, Wall St. J., Oct. 19, 1983, at 33, coL 4.
  2.    See infra note 48 and accompanying text.
  3. See infra notes 49-53 and accompanying text.
  4. See infra notes 45-47 and accompanying text.
  5. See infra notes 38-43 and accompanying text.
  6.    See infra note 54 and accompanying text.
  7.    See infra notes 56-61 and accompanying text.
  8.    See infra notes 64-87 and accompanying text.
  9.    See infra notes 88-90 and accompanying text.
  10.    See infra notes 93-97 and accompanying text.
  11.    See infra notes 103-108 and accompanying text.
  12. See infra notes 113-114 and accompanying text.
  13.    See infra notes 115-122 and accompanying text.
                     MAINE LAW REVIEW                                   [Vol. 36:117

shifting the costs of their businesses to innocent downwind parties.
   This Comment explores three alternative means of overcoming
the bar to recovery posed by the traditional tort law causation re-
quirement: the rule of alternative liability set forth in Summers v.
Tice,15 the principle of concerted action as applied in Bichler v. Eli
Lilly & Co.,16 and the theory of "market-share liability" set forth in
Sindell v. Abbott Laboratories.7 The Comment suggests that the
market-share liability theory is the most appropriate of the three
approaches for application in an acid rain action. Market-share lia-
bility is a fair and justifiable mechanism for relieving the plaintiff in
an acid rain action of the heretofore impossible burden of proving
causation and for apportioning damages among the many contribut-
ing polluters. It is also consistent with the apportionment ap-
proaches developed in traditional nuisance cases. Market-share lia-
bility is more appropriate for an acid rain action than either
alternative liability or concert of action because it insures that the
major polluters responsible for an episode of acid rain damage will
be joined, and it apportions damages in a manner that reflects the
relative contribution of each polluter.

                   II. THE ACID RAIN PHENOMENON
                     A. The Sources of Acid Rain
   Acid rain is a general term' s denoting a type of pollution that oc-
curs when chemical compounds in the atmosphere are transformed
into acids and brought to earth in the form of precipitation (wet
deposition) or dry fall (dry deposition).1 9 Studies of precipitation
have shown a large spread and intensification of acidic precipita-
tion2" in eastern North America during the past twenty-five years .2

  14.   See infra notes 109-112 and accompanying text.
  15.   33 Cal. 2d 80, 199 P.2d 1 (1948).
  16. 55 N.Y. 2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 186 (1982).
  17. 26 Cal. 2d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (1980), cert. denied, 449 U.S.
912 (1980).
  18. Since "acid rain" involves both wet deposition forms (rain, snow, sleet, hail,
fog, or dew) and dry deposition forms, a more accurate term for the overall phenome-
non is "acid deposition." Boyle & Boyle, Acid Rain, 4:3 AMicus J. 22 (1983).
  19. Wetstone, Air Pollution Control Laws in North America and the Problem of
Acid Rain and Snow, 10 ENvrL. L. REP. (ENvTrL. L. INST.), 50000, 50001-50002 (Mar.,
1980).
   20. Acidity and its converse, alkalinity, are measured by the pH scale, which runs
from zero to fourteen. A given pH value represents the negative logarithm of the
hydrogen ion concentration of an aqueous solution. Each decrease of 1.0 on the pH
scale represents a tenfold increase in hydrogen ion concentration, or acidity. A pH
level of 7.0 is considered neutral. Normal precipitation is slightly acidic with a pH of
about 5.6, because moisture in the air combines with naturally occurring carbon diox-
ide to form a weak carbonic acid. Lemon juice, in comparison, has a pH of 2.1. How
Many More Lakes Have to Die? 12 CANADA TODAY 1, 2 (Feb. 1981).
  21. I EPA, THE ACIDIC DEPOSITION PHENOMENON AND ITS EFFECTS, CRITICAL As-
1984]                                 ACID RAIN

The highest levels are occurring in the Northeast where precipita-
tion often ranges from twenty-five to forty times more acidic than
natural rainfall.22
   The process of acid rain formation begins when sulfur dioxide and
nitrogen oxides are emitted into the atmosphere.2 3 Through a vari-
ety of chemical reaction routes these gases are then oxidized into
sulfate and nitrate particulates.2 These particulates either fall to
earth independently or combine with water vapor to form nitric and
sulfuric acids, which then precipitate. 5
   Nitrogen oxides and sulfur dioxide emissions occur naturally as
well as through the activities of man. Natural emissions in the east-
ern United States are insignificant in comparison to "manmade"
emissions, however, which are caused by the burning of fossil fuels.2
Coal and oil-fired electric power plants are the largest source of sul-
fur dioxide emissions in the eastern United States, contributing
about seventy percent of the total sulfur dioxide load.2 7 In the Mid-
west, where much of the Northeast's acid rain is thought to origi-
      8
nate, 2 utility and industrial fuel consumption accounts for at least
ninety percent of the total sulfur dioxide emitted.2 Nitrogen oxides
result from two major sources: electric utilities and motor vehicles.30
   A major component of the acid rain problem is the process by
which emissions are transported far beyond their sources. The pre-


sEssMiENT REVIEW PAPERS,       PUBLIC REviEw DRAFT, 8-61 (1983) [hereinafter I CmcAL
ASSESSMENT].
   22. Wetstone, supra note 19, at 50001.
   23. Other forms of sulfur and nitrogen compounds as well as chlorine compounds
may contribute to acid rain in much lesser degrees. I CmuTc.L AssEssmENT, supra
note 21, at 2-105 to 2-108.
   24. The rate of oxidation depends upon several factors, including the concentra-
tion of various pollutants, sunlight, temperature, humidity, residency (time elapsed
from emission into the atmosphere), other meteorological conditions, and the availa-
bility of oxidizing agents. The Conservation Foundation, Acid Rain - A Major
Threat to the Ecosystem, CONSERVATioN FOUND. LErEn, 1, 2 (Dec. 1982); SrzLL WA.
TERs,   supra note 1, at 19.
  25. Wetstone, supra note 19 at 50002. In the case of dry deposition, the pollutant
does not become acidic until it comes into contact with open water or moisture on
vegetation or in soils. The Conservation Foundation, supra note 24, at 2.
  26. Less than one percent of sulfur compound emissions and only a few percent of
nitrogen oxide emissions in the area east of the Mississippi are due to natural sources.
I CRrricAL ASsEssrENT, supra note 21, at 2-105. Present estimates are that about
sixty to seventy percent of acid rain is caused by sulfuric acid while nitric acid makes
up the balance. Wetstone, supra note 19, at 50001.
  27. I CRImCAL AssESsmENT, supra note 21, at 3-39; STILL WATERS, supra note 1, at
20.
  28. The Conservation Foundation, supra note 24, at 7; Vogelmann, Catastrophe
on Camel's Hump, 91 NAT. HIST. 8 (Nov. 1982).
  29. I CRTmCAL AssEssrENT, supra note 21, at 2-106.
  30. Id. at 2-75. Nationwide, each of these sources contributes about thirty-five
percent of total nitrogen oxide emissions. Id. at 2-78, 2-97. In the Midwest, however,
utilities are the major contributors of nitrogen oxide emissions. Id. at 2-107.
                     MAINE LAW REVIEW                                   [Vol. 36:117

vailing planetary winds are the driving forces causing long range
transport of pollutants. 1 Transport and dispersion processes are
highly complex, and are a function of many factors, including tem-
perature, wind speed and direction, time of day and of year of emis-
sion, topography, height of the atmospheric "mixing layer," and
stack height.32 Under favorable conditions, emission plumes can be
transported hundreds, even thousands, of miles before significant
                      33
deposition occurs.
  The widespread use of "tall stacks" by electric utilities coritrib-
utes significantly to long-range transport of the precursors of acid
rain.3 4 The shift to tall stacks was seen as a means of meeting local
ambient air quality standards without the need to adopt expensive
emission control techniques. 3 5 As noted in a recent EPA report on
acid rain:
    That tall stacks were largely successful in this objective is quite
    evident .... At the same time, however, taller stacks and greater
    thermal effluxes from them may have resulted in increased atmo-
    spheric residence times for pollutant emissions. In turn, further
    distribution of the emissions and increased formation of secondary
                                3
    products may be occurring. 6


                        B.    The Effects of Acid Rain
   While the effects of acid rain are not fully understood, several se-
rious consequences have been identified.37 Many of the effects on
aquatic life and vegetation are caused indirectly through changes in
soils and soil chemistry. Three major impacts on soils occur. In areas
with soils that are sensitive to acidification, such as the Northeast, 8

   31. These winds are a consequence of the rotation of the earth and of atmospheric
pressure gradients created by the temperature differences between the equator and
the poles. They are reflected in our west-to-east weather flow. I CRITICAL ASSESSMENT,
supra note 21, at 3-4 to 3-6.
   32. Id. at 3-2, 3-91 to 3-93. These factors all influence the extent to which emis-
sions remain in low-level atmospheric "mixing levels" in which wind turbulence
causes significant dispersion and "ground removal" of the pollutants. Long-range
transport occurs when emissions are able to escape above the mixing level, into the
high speed "jet" layers above. Id. at 3-11 to 3-28.
   33. Id. at 3-58 to 3-61.
   34. Wetstone, supra note 19, at 50001-50002.
   35. Boyle & Boyle, supra note 18, at 26. "A tall stack can be likened to a missle
silo, capable of hurling aerial garbarge at target sites far away." Id.
   36. I CRITICIAL ASSESSMENT, supra note 21, at 3-39.
   37. Wetstone, supra note 19, at 50002.
   38. The impact of acid rain on soils depends upon the nature and depth of the
soil layers. Rich soil containing high levels of calcium carbonate, calcium, or lime can
act as "buffers," neutralizing acid input. Boyle & Boyle, supra note 18, at 26. Like-
wise, cultivated soils will not be significantly affected because of the much greater
influence of fertilizers and other alkaline soil additives. II EPA, CRITIcAL ASSESSMENT
REVIEW PAPERS, PUBLIc REVIEW DRAFT, THE ACIDIC DEPOSITION PHENOMENON AND ITS
1984]                               ACID RAIN

acid rain reacts with valuable soil nutrients, such as calcium, magne-
sium, sodium and potassium, and leaches them from soils, causing
                                9
decreases in soil productivity." Acid rain can also inhibit soil micro-
bial activity, causing substantial decreases in the rate of litter de-
composition which is essential in replenishing soil nutrients.'0 The
most significant effect of acid decomposition on soils is that it "mo-
bilizes," or increases the availability of toxic metal ions, such as alu-
minum, iron, mercury and lead.4 1 Although naturally present in
soils, these ions are normally "chemically unavailable." 2 While each
of these metals can have harmful impacts on vegetation, aquatic or-
ganisms, fish, and other animal life, it now appears that increases in
                                                   3
aluminum availability cause the most damage.'
   Each of these three major effects of acid rain on soils harms vege-
tation. Acid-mobilized aluminum kills young roots that supply
plants with water, causing plants to dry out and wither." Acid rain
falling directly on plant leaves damages the waxy leaf cuticle layer
that protects leaves from dessication. Furthermore, acid rain leaches
important plant nutrients out of leaves, thereby making plants sus-
ceptible to attack by insects, fungi, and bacteria.'
   The impacts of acid rain on vegetation are of growing concern to
property owners, especially owners of timberland and others in the
forest product industry. Acid rain has not been conclusively proven
to cause major reductions in forest growth, but "we do have indica-
tions that growth reductions are occurring, principally in coniferous
species. .      . ,   that these reductions are rather widespread, that they
began about when acidic rainfall rapidly intensified, and that they
occur in regions where rainfall acidity is generally quite high
. . . .,4   Recent studies in the Green Mountains of Vermont show a


EFFECTs, 2-49   (1983) [hereinafter H Caric AssEssMENTs]. However, many areas of
the country, including much of the northeastern United States and eastern Canada,
contain soils low in natural buffers and are particularly susceptible to acid input. This
is especially true in mountainous areas, such as the Adirondacks, where young, infer-
tile glacial soils are found. "Once the 'cumulative loading' of acids deposited in these
areas through the years has exhausted the environment's limited neutralizing capac-
ity, severe effects follow very quickly with the addition of small, previously inconse-
quential, quantities of acid." Wetstone, supra note 19, at 50002.
  39. Vogelmann, supra note 28, at 12.
  40. H CRrcAL AssasstMrr, supra note 38, at 2-49 to 2-50.
  41. Id. at 2-8 to 2-12.
  42. Wetstone, supra note 19, at 50002. Ions such as aluminum are normally chem-
ically bound to minerals found in soils. High acid input causes these minerals to dis-
solve, releasing aluminum ions into soil solutions. II CarmcAL AssassENT, supra note
38, at 2-8 to 2-12, 2-57 to 2-58.
  43. 11 CRmcAL AssEssrENT, supra note 38, at 2-57 to 2-58.
  44. Id. at 2-35; Vogelmann, supra note 28, at 12-13.
  45. Vogelmann, supra note 28, at 12; Boyle & Boyle, supra note 18, at 30.
  46. H1 EPA, THE Acmic DEPOSITION PHNOENON AND ITS              EFFEcrs,   CRIcAL As-
sEssMENT DocuzMENT, DRAFT 3-61 (1982).
                      MAINE LAW REVIEW                                   [Vol. 36:117

fifty percent mortality rate in spruces since 1965, and indicate that
acid rain is the probable cause.4 7 Obviously, losses that even ap-
proached that figure would be disastrous for the timber industry.
   The effects of acid rain on water bodies and fish and other aquatic
organisms are even more certain than the effect on forests. Signifi-
cant acidification of lakes and streams in much of eastern North
America has been documented in the last decade.4 Fish populations
have been reduced or eliminated in thousands of water bodies.
About one hundred and eighty lakes in the Adirondack region of
New York State have lost all fish life.49 The interaction of acidity
and toxic metals that have been mobilized by acid rain, especially
aluminum, is an important factor. Increased aluminum concentra-
tions can kill fish species that would otherwise be able to survive the
drop in pH. 50 Acidification actually affects all levels of aquatic life,
killing off sensitive species of algae, benthic and detrital organisms,
insects, plankton, crustacea, and molluscs.5 1 The net effect of acidifi-
cation is a complete and apparently permanent 52 altering of aquatic
ecosystems characterized by fewer species of lower-level organisms
and few or no representatives of upper trophic levels.53
   Acid rain is also known to damage several kinds of natural and
man-made materials.' It corrodes metals and causes discoloration
and peeling of paint. It weakens and fades textiles and leather. Most
notably, acid rain causes serious erosion of stone used in buildings


  47. Vogelmann, supra note 28, at 8. The study indicates that conifers are more
susceptible than hardwoods, probably because of the year-round exposure of their
needles. However, significant reductions in reproduction and growth rates of maple
and beech trees were also found. Id. at 14.
   48. II CRITICAL ASSESSMENT, supra note 38, at 4-134. It has been estimated that at
current rates of acidic deposition, pH values of "acid sensitive" streams and lakes in
the northeastern United States and southeastern Canada will average about 4.9. Dur-
ing periods of heavy rainfall or snowmelt, pH is expected to drop as low as 4.3. Id. at
5-164.
   49. Id. at 5-79. Acidity alone interferes with the ability of fish to maintain proper
salt balances. It can cause female fish to retain their eggs and can interfere with
proper hatching of released eggs. Boyle & Boyle, supra note 18, at 29.
   50. II CRITICAL ASSESSMENT, supra note 38, at 5-164.
   51. Boyle & Boyle, supra note 18, at 29.
   52. There is presently no means of returning acidified lakes to their original and
biological composition. Attempts to add lime and other chemical buffers are only par-
tial solutions. As one acid rain report stated: "if you take an acid lake and you lime it,
you do not have a normal lake; you now have a limed, formally very acid lake, with a
very peculiar water chemistry and a very peculiar biota as a result." Wetatone, supra
note 19, at 50003 (quoting   STANDING   RESOURCES DEVELOPMENT      COMMITTEE OF ONTA-
RIO, INTERIM REPORT ON ACIDIC PRECIPITATION, ABATEMENT OF EMISSIONS FROM TIlE
INTERNATIONAL NICKEL COMPANY OPERATIONS AT SUDBURY, AND POLLUTION CONTROL IN
THE PULP AND PAPER INDUSTRY   19 (June 1979)).
  53. II CRITICAL ASSESSMENT, supra note 38, at 5-144.
  54. Id. at 7-1 to 7-3.
19841                           ACID RAIN

and statues."'
  Acid rain also threatens human health. The main concern is acid-
induced exposure to dangerous levels of toxic metals, especially lead,
mercury, and aluminum."6 Human exposure to toxic metals can oc-
cur through a number of pathways. Acid rain can mobilize metals in
reservoirs and other water bodies used as public water sources.5 7 Ex-
posure can also occur through "bioaccumulation," the build up of
toxic elements in increasing concentrations in food chains." Bioac-
cumulation is of particular concern to individuals who consume
freshwater fish."9 Acidic water can also mobilize metals from house-
                                                0
hold and municipal piping and storage tanks." This poses an even
greater hazard where lead pipes are involved. The initial draft of
EPA's recent Critical Assessment Document on acid rain states that
"families receiving drinking water stored in lead cisterns or passed
through lead pipes should be considered a potential 'at risk' group
                                      1
in areas receiving acidic deposition.""

                 II.   THE NEED FOR A PRIVATE ACTION
   As the preceding sections demonstrate, acid rain is extremely de-
structive, and electric utilities are a major cause. Individuals whose
health or property are being damage by acid rain will seek- some
form of relief from one or more of the branches of government. A
common law tort action is one possible solution.2 Although there
are some strengths to this approach, there are also several considera-
ble weaknesses.63 When one considers the weaknesses of other avail-
able forms of relief, however, a tort law approach becomes an attrac-
tive option to victims of acid rain.
   The cornerstone of federal legislative efforts to prevent and con-
trol air pollution is the Clean Air Act." Legal commentators, 5 fed-

   55. Id.
   56. Id. at 6-1.
   57. Id. at 6-36 to 6-38.
   58. Id. at 6-1, 6-10.
   59. Id. at 6-31 to 6-33, 6-61.
   60. Id. at 6-34 to 6-40, 6-43 to 6-45.
   61. 11 CRrITcAL ASSESSimET, supra note 46, at 6-31.
   62. See generally Fischer, The Availability of Private Remedies for Acid Rain
Damage, 9 ECOLOGY L.Q. 429 (1981); Lind, Umbrella Equities: Use of the Federal
Common Law of Nuisance to Catch the Fall of Acid Rain, 21 Umi. L ANN. 143
(1981); Mingst, Evaluating Public and Private Approaches to InternationalSolu-
tions to Acid Rain Pollution, 22 NAT. REsOURCES J. 5 (1982); Porter, The Role of
Private Nuisance Law in the Control of Air Pollution, 10 ARu L. Rzv. 107 (1968);
Comment, Environmental Law - The Nuances of Nuisance in a PrivateAction to
Control Air Pollution, 80 W. VA. L. REv. 48 (1977); Comment, The Environmental
Lawsuit: Traditional Doctrines and Evolving Theories to Control Pollution, 16
WAYNE L. REv. 1085 (1970).
   63. See infra notes 103-108 and accompanying text.
   64. 42 U.S.C. §§ 7401-7642 (1976 & Supp. V 1981).
                     MAINE LAW REVIEW                                  [Vol. 36:117

eral agencies, 6 and "downwind" states 67 have looked to the Clean
Air Act as a means of addressing the acid rain problem.68 In its pre-
sent form, however, the Act is ill-equipped to perform that function.
   First, the National Ambient Air Quality Standards (NAAQS), 0
which form the core of the Act's provisions for controlling air pollu-
tion, limit ground-level concentrations of pollutants in the ambient
    70
air. This focus on ground-level concentrations ignores the problem
of cumulative, high altitude loading of the atmosphere with pollu-
tants, which is the first step in the formation of acid rain."
   Second, the "criteria pollutants 7' 2 for which standards have been
promulgated include sulfur dioxide and nitrogen oxides, the precur-
sors of acid rain, but not the secondary pollutants, sulfates and ni-
trates, which are formed through chemical reactions in the atmo-
sphere after emission.7 3 The primary standards 4 for sulfur dioxide
and nitrogen oxides are quite lenient,75 and most regions of the
country have been able to meet these standards while still allowing
substantial emissions of these pollutants. 76 Thus, attainment of sul-
fur dioxide and nitrogen oxide standards in a local area is not suffi-
cient to77protect a distant area from harm caused by sulfates and
nitrates.
  Finally, the Act relies on state, rather than federal, enforcement

   65. See, e.g., Wooley & Wappett, Cumulative Impacts and the Clean Air Act: An
Acid Rain Strategy, 47 ALB. L. REV. 37 (1982).
   66. EPA May Use Air Act's Section 111(d) as One Means of Controlling Acid
Rain, 11 ENv'T REP. (BNA) 665 (Sept. 5, 1980).
   67. See, e.g., Petition of the State of Maine Concerning Interstate Pollution
Abatement Under § 126(b) of the Clean Air Act, Before the United States EPA, Oct.
7, 1981.
   68. One other piece of federal legislation deals directly with acid rain. The Acid
Precipitation Act of 1980, 42 U.S.C. §§ 8901-8905 (Supp. V 1981), established a ten
year program to research the causes and effects of acid rain. While the research goals
of this act are laudable, it provides no substantive relief for the problem.
   69. 42 U.S.C. § 7409 (1976 & Supp. V 1981).
   70. "Ambient air" refers to the general mass of air in a region.
   71. Lind, supra note 62, at 155. This focus of the Act has actually been an indi-
rect cause of acid rain; it has encouraged utilities to build tall stacks to meet the
ambient standards rather than adding expensive emission control equipment. Wet-
stone, supra note 19, at 50007.
   72. "Criteria pollutants" are those air pollutants for which the Administrator of
EPA has promulgated air quality criteria pursuant to 42 U.S.C. § 7408 (1976 & Supp.
V 1981).
   73. See supra notes 23-25 and accompanying text.
   74. The Act provides for two levels of ambient standards: primary standards,
which are aimed at protecting public health, and secondary standards, which are
aimed at protecting the public welfare. 42 U.S.C. § 7409 (1976 & Supp. V 1981).
   75. Wetstone, supra note 19, at 50004.
   76. Id.
   77. Comment, Acid Precipitation: Can the Clean Air Act Handle It?, 9 B.C.
ENv L AFF. L. REv. 687, 711 (1981).
1984]                              ACID RAIN

of air quality standards. 78 This encourages a separate state-by-state
approach to pollution control, an approach which ignores the inter-
state character of pollution problems like acid rain.7 The critical
concern for states is to have their implementation plans approved
by EPA. Approval depends primarily on whether the state plan pro-
vides the proper mechanisms to attain local pollution levels within
the federal standards. As one commentator has noted, "As a practi-
cal matter, once [an implementation plan] has been approved, the
state has little reason to develop emission limitations designed to
prevent pollution problems beyond the state borders."' 0
  The 1977 amendments to the Clean Air Act included two provi-
sions for the control of interstate air pollution, section 110(a)(2)(E) 81
and section 126.2 As prospects for dealing with acid rain, however,
these two sections have been characterized as "virtually unwork-
able."83 They apply only to interstate impacts of the "criteria pollu-
tants" for which standards have been promulgated under the Act,
not to the impacts of sulfates and nitrates, or other "non-criteria


   78. 42 U.S.C. § 7410 (1976 & Supp. V 1981). Under this section, each state is
required to adopt an implementation plan which provides for enforcement of the pri-
mary and secondary national ambient air quality standards that have been promul-
gated by the Administrator of EPA.
   79. Comment, supra note 77, at 707.
   80. Id. at 713.
   81. Pub. L. No. 95-95, 91 Stat. 693 (codified as amended at 42 US.C. §
7410(a)(2)(E) (Supp. V 1981)). This section requires for approval of a state imple-
mentation plan that the Administrator of EPA find that the plan:
      contains adequate provisions (i) prohibiting any stationary source within
       the State from emitting any air pollutant in amounts which will (I) prevent
      attainment or maintenance by any other State of any such national primary
       or secondary ambient air quality standard, or (I1) interfere with measures
       required to be included in the applicable implementation plan for any other
       State under part C to prevent significant deterioration of air quality or to
       protect visibility, and (ii) insuring compliance with the requirements of sec-
       tion 7426 of this title, relating to interstate pollution abatement.
Id.
   82. Pub. L. No. 95-95, 91 Stat. 724 (codified as amended at 42 U.S.C. § 7426
 (Supp. V 1981)). Section 7426(b) provides:
          Any State or political subdivision may petition the Administrator for a
       finding that any major source emits or would emit any air pollutant in vio-
       lation of the prohibition of section 7410(a)(2)(E)(i) of this title. Within 60
       days after receipt of any petition under this subsection and after public
       hearing, the Administrator shall make such a finding or deny the petition.
 42 U.S.C. § 7426(B) (Supp. V 1981).
   Section 7426(c) provides that it shall be a violation of a state's implementation
 plan if any major new or modified source is allowed to operate or any major existing
 source is allowed to operate for more than three months where a finding under §
 7426(b) has been made that the source is or would be operating in violation of §
 7410(a)(2)(E)(i). 42 U.S.C. § 7426(c) (Supp. V 1981).
    83. Kamlet, Acid Rain: An Environmentalist'sPerspective, 14:4 NAT. Rsouncvs
 L. NEwsgrrER 6, 8 (1982).
                     MAINE LAW REVIEW                                  [Vol. 36:117

pollutants."' Furthermore, these sections address interstate pollu-
tion originating from individual sources; they do not deal with situa-
tions where interstate pollution is caused by an aggregate of sources,
                                                0
as is the case in the acid rain phenomenon." A petitioning state
under section 126 would be required to prove that pollution from a
particular emission source in another state is causing acid rain in the
"downwind" state. 86 Given the limits of long-range air pollution
modeling, 7 this burden would be formidable.
   Thus, meaningful control of acid rain is unavailable under the
current Clean Air Act. Treatment of the problem under the Act
would require either setting new standards.for sulfate and nitrate
concentrations in the atmosphere, or adopting strict, direct emission
controls on sulfur dioxide and nitrogen oxides.8 A step in this direc-
tion was taken in July of 1982, when the Senate Environment and
Public Works Committee approved an amendment to the Clean Air
Act that would require annual sulfur dioxide emissions in the east-
ern United States to be reduced by eight million tons by 1995.89
This proposal faces strong opposition from the current administra-
tion and the utility industry, 0 however, and its chances of passage
are uncertain. 9' Furthermore, the proposal does not require any re-
duction in nitrogen oxide emissions. A thirty-six percent reduction
in sulfur dioxide emissions alone may be insufficient to ameliorate
noticeably the acid rain problem. Most importantly, the proposal
would have little effect until well into the next decade;92 it does
nothing to address the damage that acid rain has already inflicted


  84. Comment, supra note 77, at 724.
  85. Kamlet, supra note 83, at 8.
  86. Comment, supra note 77, at 725.
  87. See infra notes 114-116 and accompanying text.
  88. Comment, supra note 78, at 710-14.
  89. Senate Panel Approves Air Act Amendment To Control Acid Rain Through
Emissions Cut, 13 ENv'T REP. (BNA) 419 (July 30, 1982) [hereinafter Senate Panel].
The proposal would affect thirty-one states east of and bordering the Mississippi
River. It would require the reduction of about thirty-six percent from 1980 levels,
which were estimated to have been 22.4 million tons. The original bill did not reach
the floor of the Senate before the end of the session. A similar bill and an alternate
proposal calling for a 12 million ton reduction in sulfur dioxide by 1998 were intro-
duced in the Senate on March 10, 1983. Stafford Introduces Air Act Amendments,
Including Proposals For Acid Rain Control, 13 ENV'T REP. (BNA) 2079, 2079-80
(Mar. 18, 1983).
  90. Senate Panel, supra note 89, at 419. Former EPA Administrator Anne Gor-
such Burford was active in her opposition to the measure, claiming that too little is
known about the causes of acid rain as yet to justify such an expensive control pro-
gram. Gorsuch Says U.S. Acid Rain Policies Will Not Hinder Relations With Ca-
nada, 13 ENV'T REP. (BNA) 806, 807 (Oct. 15, 1982).
  91. Waxman RedistrictingFight, Other Factors Said to Delay Hearings on Acid
Rain Measure, 14 ENv'T REP. (BNA) 868 (Sept. 16, 1983).
  92. The 1982 amendment would have required that control measures be in place
by 1993. Senate Panel, supra note 89, at 419.
1984]                             ACID RAIN

and will continue to inflict in the near future. Thus, regardless of
the ultimate success of legislative proposals to control acid rain, a
tort remedy is necessary.
   In addition to the shortcomings of federal remedial legislation for
acid rain, assistance from the current executive branch is doubtful.
The Reagan administration has resisted any legislative attempts to
control acid rain."' EPA has refused to consider long-term cumula-
tive effects of emissions in making air pollution control decisions,"
and has never reviewed state implementation plans for compliance
with the interstate pollution limits in section 110(a)(2)(E) of the
Clean Air Act.9 5 "Recently, the EPA has approved massive relaxa-
tion of emission limits for large coal-fired electric plants. ' *0 The
agency has also encouraged the construction of tall stacks despite
numerous court decisions holding that, under the Act, this was not
an appropriate technique for reducing ambient air quality.0
   Present legislative and administrative remedies for acid rain dam-
age are clearly inadequate.9 s While amendments to the Clean Air
Act and changes in the policies of the EPA may provide hope for the
future, they are small consolation to individuals who presently suffer
acid rain injuries and will continue to suffer injury in the near fu-
ture. Such parties have no alternative but to pursue a private
remedy.
   Private litigation will not provide a comprehensive or politically
viable long-term solution to the acid rain phenomenon. The problem
requires direct national legislation accompanied by effective admin-
istration. 99 However, a private action is an effective short-term alter-
                                                00
native for individuals with no other remedy. 1 Furthermore, private
actions ultimately will generate more comprehensive long-term solu-
tions by directing public attention to the problem, by highlighting
the inadequacy of existing control programs,' 0 1 and by forcing pol-
luters to internalize the costs of their activities.

  93. The Conservation Foundation, Will Congress Swallow an Anti-Acid Bill?,
Conservation Found. Letter, Jan. 1983 at 2. Since the advent of William Ruckelshaus
as Administrator of EPA, however, the administration has shown signs of willingness
to develop a comprehensive acid rain policy. As of this writing, EPA is considering
several alternative control strategies. Ruckelshaus, Cabinet Council Work Group
Weigh Range of Options on Acid Rain Control, 14 ENV'T REP. (BNA) 611 (August 12,
1983).
  94. Wooley & Woppett, supra note 65, at 55-56.
  95. See The Conservation Foundation, supra note 93, at 2.
  96. Wooley & Woppett, supra note 65, at 55.
  97. Id. at 57-58.
  98. See supra notes 64-97 and accompanying text.
  99. Comment, supra note 77, at 743-44.
  100. Comment, Environmental Law - The Nuances of Nuisance in a Private
Action to Control Air Pollution, 80 W. VA. L. REv. 48 (1977).
  101. Pfennigstorf, Environment, Damages and Compensation, 1979 AL. B.
FouND. RESEARCH J. 349, 352-53.
                      MAINE LAW REVIEW                                  [Vol. 36:117

   While private actions do not provide the optimum solution to the
acid rain problem from a policy analysis, such concerns should not
prevent courts from providing acid rain victims relief in individual
cases. A private action for acid rain injuries is consistent with tradi-
                            0
tional tort law principles. 1 2 Thus, a private tort law action stands
on its own ground, independent of legislative solutions, unless ex-
pressly preempted by legislation providing compensation to current
acid rain victims.
   A number of theories of liability are available as a basis for an
acid rain action, including negligence,103 private nuisance,'0 4 public

   102. See generally, Mingst, supra note 62; Fischer, supra note 62; Lind, supra
note 62; Comment, Environmental Law - The Nuances of Nuisance in a Private
Action to Control Air Pollution, 80 W. VA. L. REV. 48 (1977).
   103. See, e.g., Hogy v. Allied Chemical & Dye Corp., 122 Cal. App. 2d 361, 265
P.2d 86 (1953). See also Pfennigstorf, supra note 101, at 371-73. Negligence may be
the least desirable approach, because compliance with minimum air standards and
operation in accordance with the accepted industry-wide standard of care may serve
as a defense to any claimed breach of duty. Pfennigstorf, supra note 101, at 373.
   104. See, e.g., Morgan v. High Penn. Oil Co., 238 N.C. 185, 77 S.E.2d 682 (1953).
Most commentators who have discussed tort actions for air pollution have assumed
that public or private nuisance law would be the grounds of an action. See Fischer,
supra note 62, at 479; Lind, supra note 62, at 158-65. The essence of private nuisance
is a substantial and unreasonable interference with the use and enjoyment of land.
The tort protects property interests, and is available only to the plaintiffs who have
an interest in the property affected. W. PROSSER, HANDBOOK OF THE LAW OF TonTs,
591-94 (4th ed. 1971). Thus, a private nuisance action would be unavailable to parties
whose acid rain injuries were not related to an interest in land.
   The greatest challenge to both public and private nuisance actions for acid rain is
the "balancing of utilities" doctrine. Originally, courts rejected the defense that an
otherwise actionable nuisance could be justified by the utility of the defendant's con-
duct. See William Alfred's Case, 77 Eng. Rep. 816 (1611). In this case Lord Coke
delineated the rule of sic utere tuo ut alienum non laedas - so use your own prop-
erty as not to injure your neighbors - a "careful attempt to preserve an absolute
standard of property security ... ." Coquillette, Mosses From an Old Manse: An-
other Look at Some HistoricProperty Cases About the Environment, 64 CORNELL L.
RED., 761, 780 (1979). This strict, plaintiff-oriented doctrine was abandoned by many
American jurisdictions in the nineteenth century, when courts began to balance the
utilities of the defendant's conduct with the value of the plaintiff's interests and the
gravity of the harm. This approach is incorporated in the RESTATEMENT (SECOND) OF
TORTS §§ 826-831 (1982 & Supp. 1982-1983). The balancing of utilities doctrine has
been criticized as an unfair favoring of industry over the property rights of the
individual.
      The balancing of utilities doctrine ... permitted the industrial user to ex-
      ternalize the costs of his pollution. Such a legal doctrine offered no eco-
      nomic incentive for the active user of property to develop technology that
      would prevent such side effects ....   It was an unjust way of forcing public
      investment in industrial growth, regardless of how desirable that invest-
      ment might have seemed.
Coquillette, supra note 104, at 792. For an example of courts using the balancing of
utilities doctrine in an air pollution case, see Madison v. Ducktown Sulphur, Copper
& Iron Co., 113 Tenn. 331, 83 S.W. 658 (1904). Some recent decisions have suggested
a shift by some courts back to the sic utere rule. See Morgan v. High Penn Oil Co.,
1984]                                ACID RAIN

nuisance,'0 5 strict liability,0 8 and trespass.1 0 Each of these theories

238 N.C. 185, 77 S.E.2d 682 (1953); Jost v. Dairyland Power, 45 Wis. 2d 164, 172
N.W.2d 647 (1969).
   The defendants in an acid rain suit would maintain that the utility of their conduct
is so great as to outweigh the harms inflicted on the plaintiffs. This is an appealing
argument given the value of a ready supply of electric power. However, even if the
"balancing of utilities" doctrine is applied, the plaintiff in an acid rain suit can argue
that a proper "balancing" actually favors an actionable nuisance. The plaintiff can
argue; 1) under § 826(b) of the RSTATEMENT (SECOND) OF Tors that "the harm
caused by [acid rain] is serious and the financial burden of compensating for this and
similar harm to others would not make the continuation of the conduct not feasible,"
                           §
2) under REsTATE MENT 829A that "the harm resulting from the invasion is severe
and greater than the [plaintiff] should be required to bear without compensation,"
and 3) under REsTATEMErr § 830 that "the harm is significant and it would be practi-
cable for the [defendants] to avoid the harm in whole or in part without undue
hardship."
   Another obstacle to both public and private nuisance actions for acid rain damage
has been the defense termed "statutory authorization." "This defense argues that if a
facility's operations are authorized by statute - as when the facility operate3 in con-
formity with state or local permit or with zoning regulations - the operations will
not be found to constitute a nuisance." Fischer, supra note 62, at 482. Thus, utilities
and other acid rain defendants would maintain that their emissions pursuant to prop-
erly issued discharge permits could not constitute a public or private nuisance. How-
ever, many courts have limited the immunity of licensees and permitee3 to the annoy-
ances that would be necessarily created if the activity were conducted with due care
employing state of the art technology. Other courts have held that this "statutory
authorization" immunity amounts to a taking, giving rise to an inverse condemnation
remedy. Pfenigstorf, supra note 91, at 381.
   105. A public nuisance is an act or condition that obstructs or causes inconve-
nience or damage to the exercise of general public rights. See W. PRosSER, supra note
104, at 583. Thus, unlike private nuisance, a public nuisance action would not be
restricted to injuries related to an interest in land. However, public nuisances have
historically been considered crimes, and normally are to be remedied by public ac-
tion. Id. at 586-87. Private recovery for a public nuisance requires that the plaintiff
"show that he [has] suffered damage particular to him, and not shared in common by
the rest of the public." Id. at 586. The need to show a different or particular injury
may or may not bar a public nuisance action for acid rain damage. Courts have not
been altogether consistent on how "different" the plaintiff's injuries must be. Id. at
587. Most jurisdictions have held that a particular injury exists when the plaintiff
suffers harm to his health or to his chattels, or where the nuisance interferes with a
 commercial use by the plaintiff of the public right. Id. at 588-90. Most potential acid
rain plaintiffs would probably be able to rely on one of these three kinds of particular
injury.
   Several commentators have suggested that a public nuisance action for air pollu-
 tion injuries could be brought under the federal common law of nuisance. See, eg.,
 Lind, supra note 62; Post, Federal Common Law Suits to Abate InterstateAir Pollu-
 tion, 4 HARv. ENVTL. L. Ray. 117 (1980). The doctrine was enunciated in two early
twentieth century Supreme Court decisions, Missouri v. Illinois, 180 US. 203 (1901),
 and Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), and was developed consid-
 erably in Illinois v. City of Milwaukee (Milwaukee I) 406 U.S. 91 (1972). Nine years
 later, however, the Supreme Court in City of llwaukee v. Illinois (Milwaukee I) 451
 U.S. 304 (1981), held that the federal common law of nuisance had been preempted
 regarding effluent discharges in interstate waters by the 1972 amendments to the
 Federal Water Pollution Control Act. Nonetheless, the decision did not eliminate the
                      MAINE LAW REVIEW                                   [Vol. 36:117

presents its own strengths and weaknesses. In addition, there are
several potential obstacles to an acid rain action irrespective of the
theory of liability employed."'

                        IV. THE CAUSATION PROBLEM
   The greatest obstacle to the success of any private action for acid
rain damage is the requirement of causation: the plaintiff must
prove that his injuries were in fact caused by the named defendants.
It is generally considered essential to any action in tort that there be
"some reasonable connection between the act or omission of the de-
                                                               09
fendant and the damage which the plaintiff has suffered."' 1 There
are two traditional tests in tort law for causation in fact. The first is

doctrine altogether, and some commentators feel that it remains a potential remedy
for acid rain. See Lind, supra note 62, at 165.
   106. Strict liability for acid rain damage could be based on either the doctrine
enunciated in Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), or that described in the
RESTATE pmE(SEcom) OF TORTS § 519 (1982 & Supp. 1982-1983). See generally,
Pfennigstorf, supra note 101, at 373-75; Comment, The Environmental Lawsuit:
TraditionalDoctrines and Evolving Theories to Control Pollution, 16 WAYNE L. REV.
1085, 1117-21 (1970).
   107. The traditional restriction of trespass to cases involving an actual physical
invasion by tangible matter is no longer strictly applied. Comment, supra note 106, at
1115. Several courts have allowed trespass actions for air pollution if the pollution is
serious enough to cause substantial damage to the property, thus interfering with the
plaintiff's right to exclusive possession. Borland v. Sanders Lead Co., 369 So. 2d 523
(Ala. 1979); Martin v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790 (1959).
   108. In addition to the difficulty of proving causation in fact, potential obstacles
include:
   (a) Possible preemption of state law remedies by federal statutory law or by the
federal common law of nuisance. See Fischer, supra note 62, at 483-86. There is no
express preemption of state law remedies in the Clean Air Act. In fact, the Act con-
tains a savings clause that preserves common law remedies. 42 U.S.C. § 7604(e) (1976
& Supp. V 1981). However, preemption may arise by implication, as where state ac-
tion "conflicts with the actual operation of a federal program, or ... intrudes upon a
field that Congress has validly reserved to the federal sphere." L. TRiBE, A lRICAN
CONSTrrunoNAL LAw 77 (1978).
  (b) Choice of forum problems, including personal jurisdiction and venue. See Post,
supra note 105, at 140-41; Fischer, supra note 62, at 434-49.
  (c) Choice of law difficulties. See, e.g., Scott v. City of Hammond, 519 F. Supp. 292,
298 (N.D. I1. 1981).
  (d) Availability of injunctive relief. This Comment assumes that an acid rain action
would seek only damages. Courts would be reluctant to grant injunctive relief against
major electric utilities because of the importance of the industry, and the limits of the
power and expertise of courts to enforce comprehensive air pollution policies. See
Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312
(1970).
  109. W. PRossER, supra note 104, at 236. See also Ryan v. Eli Lilly & Co., 514 F.
Supp. 1004, 1018 (D.S.C. 1981); Gray v. United States, 445 F. Supp. 337, 338 (S.D.
Tex. 1978); Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 597, 607 P.2d 924, 928, 163
Cal. Rptr. 132, 139 (1980); Payton v. Abbott Labs, 386 Mass. 540, 571, 437 N.E.2d
171, 188 (1982).
19841                              ACID RAIN

the "but for," or "sine qua non," rule. Under this test "[t]he defen-
dant's conduct is not a cause of the event if the event would have
occurred without it."110 The second test for causation is the substan-
tial factor test, which was developed in cases in which two or more
causes combine to bring about an injury and either cause alone
                                                1
would have brought about the same result." Under this test the
plaintiff must prove that the conduct of a particular defendant was
a "substantial factor" in bringing about the injury.112
   The application of these traditional tests of causation in fact to an
acid rain action presents two distinct problems, each effectively bar-
ring recovery. The primary difficulty is proving that the emissions of
any particular defendant actually reached the plaintiff's area and
contributed to the acid rain occurring there. The major sources of
the sulfur dioxide emissions that contribute to acid rain in the
Northeast are the electric utilities of the midwest and eastern U.S.
                                     13
which number over one hundred. 1 A multitude of variables affects
the process through which utility emissions are transformed into
sulfate and nitrate particulates and transported hundreds of miles
before finally falling to earth as acid rain.1 1 As a result, it is virtu-
ally impossible to trace particular acid rain incidents to individual
upwind sources.1 15 Considerable progress has been made in develop-
ing computer models that illustrate long-range transport of pollu-
tants. These models still involve gross simplification and are far
from being adequate to make specific source identification."     1
   The second aspect of the causation problem concerns apportion-
ment of damages. Where the independent acts of two or more par-
ties combine to cause a single harm that is incapable of any logical
 division, each contributor is liable for the whole injury.117 For exam-
ple, this rule is applied in cases in which two automobiles collide
                            1
 and injure a third person." ' If, however, the damages caused by in-
 dependent actors are at all capable of apportionment, even if only
 theoretically, most courts have refused to hold any one defendant

  110. W. PROSSER, supra note 104, at 239.
  111. Id. at 239. See, e.g., Anderson v. Minneapolis, St. Paul & Sault Ste. Marie
Ry., 146 Minn. 430, 179 N.W. 45 (1920); Carney v. Goodman, 38 Tenn. App. 55, 270
S.W.2d 572 (1954); Walton v. Blauert, 256 Wis. 125, 40 N.W.2d 545 (1949).
  112. W. PROSSER, supra note 104, at 240.
  113. See supra notes 26-29 and accompanying text. Utilities also contribute about
half of the nitrogen oxide emissions in the region. Minor sources of these pollutants
number in the millions since they include all motor vehicles and most commercial
and residential heating systems.
  114. These variables include stack height, emission temperature and velocity, am-
bient temperature, wind speed and direction, time of day and of year, and topogra-
phy. See supra notes 31-33 and accompanying text.
  115. See Fischer, supra note 62, at 450-455.
  116. See I CrrmcAL AssnssuFNrr, supra note 21, at 9-47 to 9-48.
  117. W. PROSSER, supra note 104, at 315-16.
  118. See Arnst v. Estes, 136 Me. 272, 275-76, 8 A.2d 201, 203 (1939).
                      MAINE LAW REVIEW                                    [Vol. 36:117

liable for the damage inflicted by another. 19 This rule is often ap-
plied in nuisance cases.220 In a few nuisance cases the plaintiff was
required to prove the portion of the total damage inflicted by each
defendant.' 21 Not only is it extremely difficult to identify particular
causes of acid rain injury, but further proof of the relative contribu-
tions of each source would be impossible given present or foresee-
                  22
able technology.

              V. ALTERNATIVES TO PROOF OF CAUSATION
  A number of common law exceptions to the traditional require-
ment of proof of causation have developed. Three such exceptions
are alternative liability, concert of action, and market-share liability.
Consideration of the suitability of each exception for use in an acid
rain action leads to the conclusion that alternative liability and con-
cert of action are inappropriate, but that market-share liability is a
fair and sound principle for resolving an acid-rain plaintiff's other-
wise overwhelming causation burden.

     A. The Alternative Liability Theory-Summers v. Tice
   One exception to the requirement that the plaintiff in a tort ac-

  119.   W. PROSSER, supra note 104 at 317-18.
   120. See, e.g., Watson v. Colusa-Parrott Mining & Smelting Co., 31 Mont. 513, 79
P. 14 (1905); Chipman v. Palmer, 77 N.Y. 51 (1879); Little Schuylkill Navigation R.R.
& Coal Co. v. Richard's Adm'r, 57 Pa. 142 (1868).
   121. Sam Finley, Inc. v. Waddell, 207 Va. 602, 607-608, 151 S.E.2d 347, 353
(1966); Maas v. Perkins, 42 Wash. 2d 38, 43, 253 P.2d 427, 430 (1953).
   122. A third aspect of the causation problem stems from the requirement that the
contribution of a single defendant be a "substantial factor" in causing the resultant
injury. It is now understood that acid rain is not caused by one or a few individual
sources, but results from the aggregation of emissions from many sources. See
Fischer, supra note 62, at 450. Since the contribution of any one defendant to a par-
ticular downwind occurrence of acid rain would be very small, each would be able to
escape liability if a court applies the "substantial factor" test. If the substantial fac-
tor test were followed, the plaintiffs would be unable to recover against any of the
defendants.
   However, there are a series of nuisance cases in which courts have held that if the
independent acts of several parties combine to form a nuisance, it is no defense that
none of the acts alone would be actionable. See Hill v. Smith, 32 Cal. 166 (1867);
Woodyear v. Schaefer, 57 Md. 1 (1881); Sloggy v. Dilworth, 38 Minn. 179, 36 N.W.
451 (1888); Martinowsky v. City of Hannibal, 35 Mo. App. 70 (1889); Warren v. Park-
hurst, 45 Misc. 466, 92 N.Y.S. 725 (1904). The justification for this rule is clearly
stated by the court in Hill v. Smith, 32 Cal. 166 (1867):
        Where there is a large number of persons mining on a small stream, if
      each should deteriorate the water a little, although the injury from the act
      of one might be small, the combined result of the acts of all might render
      the water unfit for further use; and if each could successfully defend an
      action on the ground that his act alone did not materially affect the water,
      the prior appropriator might be deprived of its use, and at the same time be
      without a remedy.
Id. at 167-68. This rationale is equally applicable in an acid rain context.
1984]                               ACID RAIN

tion must prove causation is the "alternative liability" theory illus-
trated by the case of Summers v. Tice. 1 3 There the plaintiff was
hunting quail with the two defendants. A bird was flushed and rose
between the plaintiff and the defendants. Both of the defendants
fired simultaneously in the plaintiff's direction.12 The plaintiff was
                                                    '
struck and injured by shot from one of the two defendants' guns.
Since the shot used by the two was identical, the plaintiff could not
prove which defendant had fired the shot that actually caused his
injury.ls 5 The California Supreme Court ruled that the burden of
proof of causation should be shifted to the defendants and that each
should be left to "absolve himself if he can."' 20 The court noted that
both defendants had been negligent and their conduct had resulted
in an injury to the plaintiff. Because of the nature of their conduct,
it was impossible to establish causation. Thus, it was unfair to deny
the plaintiff a remedy simply because he could not identify which
defendant caused the harm. 17 The court treated the two defendants
as   joint tortfeasors." 5s
  The rule of Summers has been widely followed. It has been incor-
porated in section 433(B)(3) of the Restatement (Second) of Torts,
which provides:
      Where the conduct of two or more actors is tortious, and it is
      proved that harm has been caused to the plaintiff by only one of
      them, but there is uncertainty as to which one has caused it, the
      burden is upon each such actor to prove that he has not caused the
           129
      harm.
     A variety of courts have employed the Summers rule in a number

  123. 33 Cal. 2d 8, 199 P.2d 1 (1948).
  124. Id. at 81, 199 P.2d at 2.
  125. Id. at 82, 199 P.2d at 3.
  126. Id. at 84, 199 P.2d at 5. The court relied on a series of factually similar gun-
shot cases in which multiple defendants were held jointly and severally liable. See
Moore v. Foster, 182 Miss. 15, 180 So. 73 (1938); Oliver v. Miles, 144 Miss. 852, 110
So. 666 (1926); Benson v. Ross, 143 Mich. 452, 106 N.W. 1120 (1906). In these cases,
however, the courts justified their decisions on a finding that the defendants were
engaged in a common enterprise, that each participated in the wrongful acts that
resulted in the plaintiff's injuries. This amounted to a finding of concert of action.
The court in Summers felt that this logic unnecessarily strained the concept of con-
certed action. It reasoned that since the real reason for the result in those cases was
the plaintiffs' difficulty in proving causation, the rule of shifting the burden of proof
should apply even if there is no "conscious concert." 33 Cal. 2d at 85-86, 199 P.2d at
3-4.
  127. Id. at 86, 199 P.2d at 4.
  128. Id. at 88, 199 P.2d at 5.
  129. R_ TATE ENT (SacoND) OF ToRTs § 433(B)(3) (1965). Comment (M to §
433(B) explains that the reason underlying the rule is the injustice of permitting
proved wrongdoers, who among them have inflicted injury upon the entirely innocent
plaintiff, to escape liability merely because the nature of their conduct and the result-
ing harm has made it difficult or impossible to prove which of them has caused the
harm. Id. at comment (f).
                       MAINE LAW REVIEW                                    [Vol. 36:117

of circumstances involving multiple tortfeasors. 130 The rule has also
been used in a series of multiple automobile collision cases where
the plaintiff could not prove the contribution, if any, of a particular
                                3
defendant to his total injuries. 1
  The alternative liability theory of Summers v. Tice could be ap-
plied in an acid rain suit. The factors that motivated the Summers
court to shift the burden of proof of causation are present in an acid
rain context. The conduct of the contributors to acid rain is tor-
         1 2
tious.         Like the plaintiff in Summers, an acid rain plaintiff cannot
identify which of a named group of utilities or other polluters are
contributing to his injury.1 33 This difficulty in proving causation is
not due to any fault on the part of a plaintiff, but results from the
nature of the defendants' activity; the emissions from each facility
aggregate and travel hundreds of miles before precipitating as acid
rain.13 4 Because the defendants created the conditions which make
causal identification impossible, it is fair to shift to them the burden
of proving or disproving their contribution to the acid rain damage
suffered by the plaintiff.
  Although these considerations of fairness to the injured party are
persuasive, the Summers rule is inappropriate in an action for acid
rain damage. As it is doubtful that all contributors to acid rain could
be joined as defendants in any single action, 33 it is possible that


   130. Bowman v. Redding & Co., 449 F.2d 956 (D.C. Cir. 1971) (construction
worker killed in a fall where both the general contractor and a sub-contractor are
negligent, but it is unclear which caused the accident); Pereira v. Dow Chemical Co.,
129 Cal. App. 3d 868, 181 Cal. Rptr. 364 (1982) (worker injured while mixing chemi-
cals produced by separate manufacturers where it was alleged that the chemicals and
their containers were defective and unreasonably dangerous); Hood v. Haglet, 606
P.2d 548 (Okla. 1979) (plaintiff bitten by one of two dogs who attacked her where
both owners were negligent in letting the dogs run loose and the plaintiff could not
identify which dog bit her); Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970)
(child injured by a stone thrown by one of a group of identified children engaged in a
game of stone-throwing).
   131. See Holtz v. Holder, 101 Ariz. 247, 418 P.2d 584 (1966); Apodaca v. Haworth,
206 Cal. App. 2d 209, 23 Cal. Rptr. 461 (1962); Maddux v. Donaldson, 362 Mich. 425,
108 N.W.2d 33 (1961); Hill v. Macomber, 103 N.J. Super. 127, 246 A.2d 731 (1968). It
should be noted that in these cases it was clear that all the defendants were involved
in the accident, even if it could not be shown that any one had in fact contributed to
the plaintiff's injuries.
   132. This is clear if the action is based on theories of strict liability or trespass. It
is more problematic under a negligence or nuisance theory, since both involve balanc-
ing the defendant's conduct for reasonableness in view of the potential harm to the
plaintiffs. See supra notes 103-105. See also W. PROSSER, supra note 104, at 145-49,
580-81.
   133. See supra notes 109-112 and accompanying text.
   134. See supra notes 113-116 and accompanying text. It should be noted that
there was no aggregation problem in Summers. There were only two defendants and
the plaintiff's injury was caused by one alone.
   135. Since automobiles are considered a source of acid rain, the total number of
sources could range in the millions. See supra note 30 and accompanying text.
1984]                              ACID RAIN

many of the polluters actually causing the plaintiff's harm would not
be before the court.188 The Summers rule and the Restatement's
version clearly anticipate that the defendant causing the plaintiff's
injury will be among those named, allowing the group of defendants
to be narrowed such that one member must have caused the in-
jury.1 7 The policy reasons for holding a group of defendants jointly
      3

and severally liable for a plaintiff's injuries are less convincing where
there is a significant possibility that the damage may have been
caused by others.13
   Another compelling reason why the Summers rule is inappropri-
ate for an acid rain suit is that individual defendants would be held
liable for damages in amounts that did not reflect their relative con-
tribution to the problem. One or a few polluters could be held liable
for the entire injury. Small contributors could be forced to pay dam-
ages well out of proportion to any possible role they could have
played in causing the plaintiff's injuries, whereas large contributors
could end up paying little or nothing. This problem might be allevi-
                                                            0
ated somewhat by third party suits for contribution,"" but there is
no guarantee that such cross-claims would result in a fair apportion-
ment of the damages.
   There is considerable authority holding that in actions for dam-
ages for pollution or nuisances in which there are several contribut-
ing causes, no defendant should be held jointly and severally liable
                                                             1
for a whole injury or for more than its contribution." 0 A leading
                              4
case is Chipman v.Palmer, 1 a nuisance case involving pollution of
a stream by sewage piped in from several houses and businesses, in-
cluding the defendant's. The court stated:
     It is true, that it is difficult to separate the injury;, but that fur-
     nishes no reason why one tortfeasor should be liable for the acts of
     others who have no association and do not act in concert with him.
     If the law was otherwise, the one who did the least might be made


  136. This chance would be reduced to the extent that the plaintiff names as many
major sources of sulfur dioxide and nitrogen oxide pollution as possible.
  137. 33 Cal. 2d at 84, 199 P.2d at 4; RESTATEMENT (SEcoND) OF Toms § 433(B)(3),
comment (h) (1965); Morton v. Abbott Laboratories, 538 F. Supp. 593, 599 (M.D. Fla.
1982); Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1016 (D.S.C. 1981).
  138. Fischer, supra note 62, at 457.
  139. See Michie v. Great Lakes Steel Div., Nat'l Steel Corp., 495 F.2d 213, 217
(6th Cir. 1974); Abel v. Eli Lilly & Co., 94 Mich. App. 59, 76, 289 N.W.2d 20, 26
(1980).
  140. See California Orange Co. v. Riverside Portland Cement Co., 50 Cal. App.
522, 195 P. 694 (1920); Sellick v. Hall, 47 Conn. 260 (1879); Midland Empire Packing
Co. v. Yale Oil Corp., 119 Mont. 36, 169 P.2d 732 (1946); Watson v. Colusa-Parrot
Mining & Smelting Co., 31 Mont. 513, 79 P. 14 (1905); Chipman v. Palmer, 77 N.Y.
51 (1879); City of Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631 (1907); Little
Schuylkill Navigation Co. v. Richard's Adm'r., 57 Pa. 142 (1868); Sam Finley, Inc. v.
Waddell, 207 Va. 602, 151 S.E.2d 347 (1966).
  141. 77 N.Y. 51 (1879).
                      MAINE LAW REVIEW                                  [Vol. 36:117
     liable for the damages of others ....""
   While this is the overwhelmingly predominant rule, a few recent
cases have held otherwise.1 43 In Michie v. Great Lake Steel Division,
                               1
National Steel Corporation,4' a group of Ontario residents brought
a nuisance action against three corporations operating seven plants
in Michigan. The claims alleged that the air pollutants emitted by
the defendants were carried by air currents to the plaintiff's prem-
ises in Canada, causing damage to their persons and property. The
complaint sought to hold each defendant jointly and severally liable
for the whole injury.1 45 The district court held that under Michigan
law, multiple defendants who by independent but indistinguishable
acts discharge air pollutants that create a nuisance are jointly and
severally liable for the whole injury.1 46 The net effect of the new rule
was to shift the burden of proof to the defendants to show "which
[of the defendants] was responsible and to what degree.'"4
   Michie appears to directly support application of the alternative
liability doctrine in an acid rain suit. The facts in Michie differ in
important ways, however, from the circumstances in an acid rain
case. The pollution in Michie was localized and was caused by a
much smaller number of plants. 48 Presumably the named defen-
dants could join all other major contributors. There was no indica-
tion in Michie that proof of causation would be as difficult and com-
plicated as in the acid rain context. Sensing technology and
modeling have been used successfully to identify causes of pollution
                                                                  0
where the problem is localized and the variables are fewer.' 4 Thus,
while use of the alternative liability theory would probably result in
a fair distribution of liability among the contributors in a localized
pollution context like that in Michie, it is doubtful that such a just
and predictable result would follow its use in a suit for acid rain


   142. Id. at 53.
   143. See Michie v. Great Lakes Steel Div., Nat'l Steel Corp., 495 F.2d 213 (6th
Cir. 1974); Oakwood Homeowners Ass'n. v. Ford Motor Co., 77 Mich. App. 197, 258
N.W.2d 475 (1977) (four industrial facilities near the plaintiff's neighborhood emitted
air pollutants which combined in circulating air, causing harm to the neighborhood;
the defendants were held jointly and severally liable for the whole injury); Velsichol
Chemical Corp. v. Rowe, 543 S.W.2d 337 (Tenn. 1976) (defendant chemical company
in nuisance action was allowed to bring third-party complaint against five other facili-
ties for contribution under alternative liability theory); Landers v. East Texas
Saltwater Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952) (plaintiff's lake damaged
by salt water leaking from two pipes belonging to two independent defendants, each
defendant held jointly and severally liable for the whole injury).
   144. 495 F.2d 213 (6th Cir. 1974).
   145. Id. at 215.
   146. Id.
   147. Id. at 218.
   148. Id. at 215.
  149. See Fischer, supra note 62, at 453 (quoting State v. Inland Steel, No. 72 CH
259 (I1. Cir. Ct., Cook County, 1976)).
1984]                               ACID RAIN

damage.
  The alternative liability theory developed in Summers v. Tice rep-
resents an important step in the development of tort law. It recog-
nizes that even fundamental rules such as the requirement of prov-
ing causation in fact must be susceptible to exceptions where new
circumstances and fairness so require. 10 It is, however, a simple so-
lution for simple cases. Under alternative liability, each defendant
who cannot prove that he was not a cause of the plaintiff's injury is
held jointly and severally liable for all of the damages. ' Such a rule
is justifiable in cases in which there are two or a few defendants
because it is clear that the persons causing the harm are before the
court and, the apportionment of damages is relatively simple.02 Al-
ternative liability is a blunt tool, however, for complex cases such as
acid rain actions involving hundreds of potential defendants, each
contributing to the plaintiff's injuries in differing degrees.

 B. A Modified Concert of Action Approach: Bichler v. Eli Lilly
                                       & Co.
  The second major exception to a plaintiff's burden of proof of cau-
sation is a form of concert of action illustrated in Bichler u. Eli Lilly
& Co. 153 In Bichler, the plaintiff developed cervical and vaginal can-
cer as a result of in utero exposure to the drug diethystilbesterol
(DES). 15 Unable to prove which manufacturer had produced the
DES taken by her mother, the plaintiff proceeded to trial against
only Eli Lilly & Co. on a concert of action theory.', Under the con-
cert of action approach, the defendants are treated as joint
tortfeasors, and the plaintiff may proceed against any one of the de-
fendants for the entire injury.""' Dean Prosser explains the doctrine:

  150. Summers v. Tice, 33 Cal. 2d at 82, 199 P.2d at 3.
  151. Id. at 88, 199 P.2d at 5.
  152. See Morton v. Abbott Laboratories, 538 F. Supp. 593, 598-99 (LD. Fla.
1982); Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1016-17 (D.S.C. 1981); Sindell v.
Abbott Laboratories, 26 Cal. 3d 588, 602-603, 607 P.2d 924, 930-31, 163 Cal. Rptr. 132
(1980).
   153. 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 186 (1982).
   154. DES is a synthetic estrogen compound that was commonly prescribed in the
late forties and throughout the fifties and sixties to pregnant mothers for the purpose
of preventing miscarriage. It was later discovered that DES may cause vaginal cancer
and adenosis in daughters exposed to DES in utero. In 1971, the Food and Drug
Administration (FDA) ordered the manufacturers of DES to cease marketing and
promoting DES for the purpose of preventing miscarriage because of the risk to un-
born children. Id. at 57, 450 N.Y.S.2d at 777-78, 436 N.E.2d at 183-84.
   155. The trial was conducted in two stages. The first stage concerned whether
Lilly provided the DES actually prescribed to the plaintiff's mother. The jury found
that the plaintiff had not sustained her burden of proof on that issue. Id. at 571, 450
N.Y.S.2d at 778, 436 N.E.2d at 184. The second stage of the trial concerned the alle-
gation of concerted action. Id. at 571, 450 N.Y.S.2d at 778-79, 436 N.E.2d at 184-85.
   156. W. PaossEa supra note 93, at 291-92.
                      MAINE LAW REVIEW                                  [Vol. 36:117

     [When] [a]ll those who, in pursuance of a common plan or design
     to commit a tortious act, actively take part in it, or further it by
     cooperation or request, or who lend aid or encouragement to the
     wrongdoer, or ratify and adopt his acts done for their benefit, all
     are equally liable with him.'57

  The wrongful act alleged in Bichler was the manufacturers' failure
to adequately test DES in pregnant mice for its possible carcino-
genic effects on fetuses prior to their application to the Federal
Food and Drug Administration (FDA) for approval to market DES
for prevention of human miscarriage. 158 The plaintiff alleged that
even if Lilly did not provide the actual prescription taken by the
plaintiff's mother, it acted in concert with the other manufacturers
in failing to test DES adequately, and that this failure to test re-
sulted in her injuries.1 59
  Although there was no evidence of a "common plan or design"
among the defendants, the trial court instructed the jury that con-
cert of action could be found in two ways. First, concert of action is
found if the manufacturers' acts or omissions were the result of an
implied agreement or tacit understanding. The court stated that an
implied agreement or tacit understanding could be evidenced by
"consciously parallel conduct" of the manufacturers. 60 Second, con-
cert of action is established if the jury found that the companies
acted independently of one another in failing to test for carcinogenic
effects, but their acts had the effect of "substantially encouraging or


   157. Id. at 292 (footnotes omitted). See also RESTATEMENT (SECOND) OF ToRTs §
876 (1977) which provides:
     For harm resulting to a third person from the tortious conduct of another,
     one is subject to liability if he:
      (a) does a tortious act in concert with the other or pursuant to a common
     design with him; or
      (b) knows that the other's conduct constitutes a breach of duty and gives
     substantial assistance or encouragement to the other so to conduct himself;
     or
      (c) gives substantial assistance to the other in accomplishing a tortious
     result and his own conduct, separately considered, constitutes a breach of
     duty to the third person.
   158. 55 N.Y.2d at 578, 450 N.Y.S.2d at 779, 436 N.E.2d at 185.
   159. Id. at 580, 450 N.Y.S.2d at 780, 436 N.E.2d at 186.
   160. Id. at 582, 450 N.Y.S.2d at 781, 436 N.E.2d at 187. The concept of "con-
sciously parallel conduct" is not new. It was developed as an evidentiary doctrine in
antitrust law and refers to the "common practice of conducting similar businesses in
a uniform manner, with each business aware that the others are pursuing the same
course of action." Note, Bichler v. Eli Lilly: An Improper Use of Conscious Parallel-
ism as Evidence of Concerted Action, 62 B.U.L. REv. 633, 645 (1982). Proof of con-
scious parallelism serves as evidence of an agreement in violation of the Sherman
Anti-Trust Act, 15 U.S.C. § 1 (1983). See Interstate Circuit, Inc. v. United States, 306
U.S. 208 (1939); Theater Enterprises, Inc. v. Paramount Film Distrib. Corp., 346 U.S.
537 (1954).
1984]                               ACID RAIN                                     139

assisting" the wrongful conduct of the other manufacturers.'0 ' The
jury returned a verdict for the plaintiff, and the appellate division
affirmed the judgment on the verdict. '
   On appeal to the court of appeals, Lilly argued that the trial
court's instructions on concerted action liability were erroneous. The
court declined to review the charge, finding that the defendant
failed to make a timely request or exception to the instructions, and
thus the issue was not preserved for appeal.'es
   The effect of the Bichler test was that the plaintiff did not have to
prove which manufacturer supplied the product which caused her
injuries; she had only to prove "concert of action" of several manu-
facturers in failing to test DES adequately. This concerted action,
then, becomes the "cause" of the plaintiff's injuries. Under the very
liberal "conscious parallelism" form of concert of action used in
Bichler, a plaintiffs burden is decreased substantially. 10 '

  161. 55 N.Y.2d at 582-83, 450 N.Y.S.2d at 780-81, 436 N.E.2d at 18647. The full
text of the trial court's charge on concerted action was as follows:
     [Bly 'concerted action', we mean one of two things. First, action taken
     jointly by the drug companies as a result of an express or implied under-
     standing. In this case, other than in connection with the original New Drug
     Application submitted in 1941 by some twelve companies, in which they
     expressly agreed to joint submission of clinical data, plaintiff contends that
     the joint action of the defendant and other drug companies, in testing and
     marketing D. E.S. for use in accidents of pregnancy was by implied or tacit
     agreement or understanding. That is, it was unspoken, and that this was
     reflected by the consciously parallel conduct of the companies in these
     activities.
        By the second definition of concerted action, we mean persons acting in-
     dependently of each other in committing the same wrongful act, but al-
     though acting independently, their acts have the effect of substantially en-
     couraging or assisting the wrongful conduct of the other, which, in this case,
     was the alleged failure to adequately test.
        Thus, if you find that defendant and the other drug companies either
     consciously paralleled each other in failing to test D. E. S. on pregnant
     mice, as a result of some implied understanding, or that they acted inde-
     pendently of each other in failing to do such testing, but that such indepen-
     dent actions had the effect of substantially aiding or encouraging the failure
     to test by the others, then you should find that the defendant wrongfully
     acted in concert with the other drug manufacturers in the testing and mar-
     keting of D. E. S. for use in accidents of pregnancy. Of course, you must
     also have found that it was wrongful for the defendant and the other drug
     companies not to have tested D. E. S. in pregnant mice because of the state
     of knowledge that was available to them in 1953.
Id.
   162. Bichler v. Eli Lilly & Co., 79 A.D.2d 317, 436 N.Y.S.2d 625 (1981).
   163. 55 N.Y.2d at 583, 450 N.Y.S.2d at 781, 436 N.E.2d at 187. The court also
rejected Lilly's claim that the evidence presented at trial was insufficient to support
the jury's verdict for the plaintiff on the issue of concerted action. Id. at 585, 450
N.Y.S.2d at 782, 436 N.E.2d at 188.
   164. In Payton v. Abbott Laboratories, 512 F. Supp. 1031 (D. Mass. 1981), an-
other DES case, the trial court granted summary judgment against the plaintiff on
                      MAINE LAW REVIEW                                    [Vol. 36:117

   It has been suggested that the concert of action approach taken in
Bichler could be applied to environmental cases in which proof of
causation is problematic."' If the theory is applied in an acid rain
suit, the plaintiff would be relieved of the burden of tracing his acid
rain injury to specific sources. One or few major polluters would be
named in an acid rain action. The plaintiff would allege that each
acted in concert with all other polluting facilities in wrongfully emit-
ting sulfur and nitrogen oxides, or in wrongfully failing to adopt ad-
equate pollution control mechanisms, thereby causing the plaintiff's
injuries. Thus, the plaintiff would not actually be avoiding the cau-
sation burden, but merely claiming that the concerted action of all
the major polluters caused his injuries. Each defendant would be
jointly and severally liable for the whole injury, and could in turn
seek contribution from any of the other polluters.16
                                           1
   Like the alternative liability theory, 67 a concerted action ap-
proach would be very simple for plaintiffs and courts to implement.
It does not require complex determinations about relative contribu-
tion and apportionment of damages among multiple defendants.
Concert of action is also a more traditional and accepted theory of
tort liability than those involving shifting the burden of proof of
causation,"' s and thus it may be more palatable to courts reluctant
to make exceptions to proof of causation requirements.
   There are, however, several impediments to the use of the Bichler
approach in an acid rain suit. Traditional concert of action theory
does not require an express agreement among the parties to partici-
pate in a wrongful act; an implied agreement or tacit understanding
is sufficient. 69 It is unlikely, however, that a plaintiff could prove
that various polluters were operating under any kind of agreement
or tacit understanding to pollute. The contributors to the acid rain
problem are a much more diverse group than the pharmaceutical
companies producing DES dealt with in Bichler. The plaintiffs
might have more success if a court were willing to adopt the liberal

her concerted action theory. The plaintiff in Payton also relied on conscious parallel-
ism as proof of an implied agreement among the defendant manufacturers. The court
held that parallel conduct by itself cannot prove agreement and that the plaintiff had
not alleged other facts sufficient to support a finding that an implied agreement ex-
isted. Id. at 1037-38.
   165. Appleson, Concert of Action Theory: Polluters Beware, 68 A.B.A. J. 1209
(1982) (quoting remarks of Alfred Julien, Esq., the plaintiff's attorney in Bichler v. Eli
Lilly & Co., at the A.T.L.A. annual meeting in Toronto in July of 1982).
   166. Bichler v. Eli Lilly & Co., 55 N.Y.2d at 580-81, 450 N.Y.S.2d at 780, 436
N.E.2d at 186.
   167. See supra notes 123-152 and accompanying text.
   168. See W. PROSSER, supra note 104, at 291-93. See also Thompson v. Johnson,
180 F.2d 431 (5th Cir. 1950); Bierczynski v. Rogers, 239 A.2d 218 (Del. 1968); Oliver
v. Miles, 114 Miss. 852, 110 So. 666 (1926); Sir John Heydon's Case, 77 Eng. Rep.
1150 (1613).
   169. W. PROSSER, supra note 104, at 292.
1984]                              ACID RAIN

versions of concert of action used in Bichler, such as "conscious par-
allel activity."170 But it should be noted that this version of concert
of action differs considerably from the traditional requirement of an
express or implied agreement or a tacit understanding. Furthermore,
no appellate court yet has applied the doctrine of "conscious paral-
lelism" outside of the antitrust field.17 1 Courts may be reluctant to
incorporate such liberal standards for proof of concerted action into
general tort law.
   A more fundamental objection to the Bichler approach is that it
would have the same result as the application of the alternative lia-
bility theory. one or a few polluters would be jointly and severally
liable for the entire injury. Small polluters could escape liability en-
tirely.17 2 The most compelling reason for relaxing traditional proof
of causation requirements is that innocent plaintiffs would otherwise
be forced to bear the cost of the defendants' activities.2 3 Such costs
should be borne by the persons or industries who benefit from and
are responsible for the activities that produce the injury-causing
substances. To reallocate these costs effectively, they must be spread
in some manner that reflects relative contributions to the problem.
Such a reallocation will not be accomplished by the Bichler
 approach.

  C.    The "Market-ShareLiability" Theory - Sindell v. Abbott
                          Laboratories
  A third major exception to the traditional proof of causation rule
was developed in another recent DES case, Sindell v. Abbott Labo-
ratories. 4 The plaintiff brought an action against eleven drug com-
        17
                                                   13
panies seeking damages for DES-related injuries. 7 The drug was

  170. See supra note 160 and accompanying text.
  171. The court of appeals in Bichler did not reach this issue, as it found that the
defendant's challenges were not properly preserved for appeal. See supra note 163
and accompanying text. Even if the use of conscious parallelism as evidence of an
implied agreement is accepted by courts, such courts will probably require proof of
other facts or "plus factors" that show concerted action. Such "plus factors" could
include proof that the defendant's conduct was contrary to their independent inter-
ests and proof that there was interdependence among the defendants. See Note,
supranote 160, at 651-52; Payton v. Abbott Laboratories, 512 F. Supp. 1031, 1037-38
(D. Mass. 1981). Courts will probably also allow defendants "to rebut an inference of
agreement by establishing a reasonable explanation for the parallel behavior...."
Note, supra note 160, at 652.
  172. See supra notes 138-139 and accompanying text.
  173. Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 610-11, 607 P.2d 924, 936, 163
Cal. Rptr. 132, 144 (1980).
  174. 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (1980), cert. denied, 449 Us.
912 (1980).
  175. The plaintiff Judith Sindell developed adenosis and a malignant bladder tu-
mor, which she attributed to her in utero exposure to DES. Id. at 593, 607 P.2d at
925, 163 Cal. Rptr. at 133.
                     MAINE LAW REVIEW                                  [Vol. 36:117

produced by all named defendants and was based on a common
formula. DES was marketed as a fungible product. It was customary
both for doctors to prescribe it generically rather than specifying
brand names and for druggists to fill a prescription with whatever
brand was available. 176 These marketing practices, combined with
the passage of many years before the plaintiff's symptoms devel-
oped, made it impossible for Sindell to identify177
                                                  which manufacturer
produced the actual pills her mother ingested.
  The Sindell court declined to hold the defendants jointly and sev-
erally liable under the alternative liability rule of Summers v.
Tice. 178 There were over two hundred manufacturers of DES at the
time of the plaintiff's exposure, whereas only five of the original
eleven named manufacturers remained as defendants in Sindell's
suit.' 79 The court noted that the possibility that any of the five de-
fendants supplied the DES that caused the plaintiff's injuries was
small. The court thus felt that application of the Summers rule
would be unfair and would create too great a possibility that the
responsible manufacturer would escape liability altogether.18 0
  The Sindell court also rejected the plaintiff's reliance on a concert
of action theory of liability. 8 ' The court held that the plaintiff's al-
legations were insufficient to support a finding that the defendants
had a tacit understanding or a common plan to test DES inade-
quately or to fail to provide sufficient product warnings or that the
defendants substantially aided or encouraged one another in such
omissions. The court also rejected the "conscious parallel conduct"
test for concert of action' 82 because it "would expand the doctrine
[of concerted action] far beyond its intended scope and would
render virtually any manufacturer liable for the defective products
of an entire industry."' 8 '

  176. Id.
  177. Id. at 595-96, 607 P.2d at 926, 163 Cal. Rptr. at 134.
  178. Id. at 603, 607 P.2d at 931, 163 Cal. Rptr. at 139.
  179. The court noted that in Summers, all the parties who were or could have
been responsible for the harm to the plaintiff were joined as defendants. Id. at 602,
607 P.2d at 931, 163 Cal. Rptr. at 139.
  180. Id. at 603, 607 P.2d at 931, 163 Cal. Rptr. at 139.
  181. The plaintiff claimed that there was a "tacit understanding" among the de-
fendants to commit the wrongful acts which led to her injury. She alleged that the
defendants' wrongful acts were "the result of planned and concerted action, express
and implied agreements, collaboration in, reliance upon, acquiescence in and ratifica-
tion, exploitation and adoption of each other's testing, marketing methods, lack of
warnings ... and other acts or omissions [and that] acting individually and in con-
cert, [the defendants] promoted, approved, authorized, acquiesced in, and reaped
profits from sales" of DES. Id. at 604-605, 607 P.2d at 932, 163 Cal. Rptr. at 140.
  182. See supra note 160, and accompanying text.
   183. 26 Cal. 3d at 605, 607 P.2d at 934, 163 Cal. Rptr. at 141. The Sindell court
also rejected the theory of "enterprise liability" set forth in Hall v. E.I. Dupont do
Nemours & Co., Inc., 345 F. Supp. 353 (E.D.N.Y. 1972). See also Comment, DES and
1984]                               ACID RAIN

   Despite its rejection of alternative liability and concert of action
theories, the Sindell court felt there existed "forceful arguments"
for developing some adaptation of the rules of causation and liabil-
ity in order to allow the plaintiff's action.'" The court devised a
modified version of the alternative liability theory, since called the
"market-share liability" theory. Under this theory, each defendant
that could not prove that it was not the source of the plaintiff's inju-
ries was held liable in proportion to its market share of DES at the
time of the exposure.2 5 Application of the rule required proof that
                        1

1) each defendant produced the same product as that which injured
the plaintiff, 2) the plaintiff was not at fault in being unable to
prove causation, 3) the difficulty in proving causation resulted from
the nature of the defendants' activity, and 4) the plaintiff joined as
defendants the manufacturers of a "substantial share" of the prod-
uct that was on the market at the time of exposure.'80
   The Sindell court felt that it was reasonable to measure the likeli-
hood that any one of the named defendants supplied the injury-
causing product by the percentage that each defendant's production
of DES bore to the total production of the drug. As long as the
plaintiff named enough manufacturers to represent a "substantial
share" of the DES which was produced, the court felt it was fair to
shift the burden of proof to the defendants, forcing them to prove
that they were not the manufacturers of the DES which injured the
         18
plaintiff. 7 If this approach were taken in all DES cases, "each man-
ufacturer's liability would approximate its responsibility for the in-
juries caused by its own products."' M

a Proposed Theory of EnterpriseLiability, 46 FoRnHa L REv. 963 (1978).
   In Hall, it was held that where a small group of manufacturers comprising an entire
industry cooperated on an industry-wide basis in the design and manufacture of a
product that was inherently dangerous, the burden of proof of identifying which of
the manufacturers produced the injury-causing product shifted to the defendants.
Hall, 345 F. Supp. at 380. The Sindell court felt that enterprise liability was inappli-
cable to actions involving a large number of producers. Furthermore, in Hall it was
alleged that the defendants had delegated functions to a trade association, which sup-
ported the finding that the defendants jointly controlled the risk. No such allegation
was made by the plaintiff in Sindell. Sindell, 26 Cal. 3d at 609, 607 P.2d at 935, 163
Cal. Rptr. at 143.
   184 Id. at 610, 607 P.2d at 936, 163 Cal. Rptr. at 144.
   185. Id. at 612 P.2d at 937, 163 Cal. Rptr. at 145. In other words, if company X
produced 30% of the total production of DES at the time of the plaintifs in utero
exposure, and the plaintiff's total damages were one million dollars, company X
would be liable for 30% of those damages, or $300,000, unless company X could prove
that it was not the source of the DES that caused the plaintiff's injuries.
   186. Id. at 611-12, 607 P.2d at 937, 163 Cal. Rptr. at 145.
   187. Id. at 612, 607 P.2d at 937, 163 Cal. Rptr. at 145.
   188. Id. The court noted that minor discrepancies between actual market-share
and liability were inevitable, and also that it would be impossible to determine mar-
ket shares exactly. However, the court felt that these problems were not serious
enough to militate against the rule that it adopted. Id.
                      MAINE LAW REVIEW                                   [Vol. 36:117

  Three arguments justified the Sindell court's outcome. First, the
court noted that because of advances in science and technology,
modern industry creates fungible goods which have the potential to
cause harm and which cannot be traced to any specific producer.
Rigid adherence to the doctrine of causation in fact denies a remedy
to persons injured by such goods.1 1 9
   Second, the court reaffirmed the Summers rationale: "as between
an innocent plaintiff and negligent defendants, the latter should
bear the cost of the injury."19 The plaintiff was not at fault in fail-
ing to identify the cause of her injuries. The defendants' actions in
producing and marketing a fungible product whose effects were not
apparent for many years, however, contributed significantly to the
difficulty of proving causation.19
   Finally, the court argued that the defendants were in a better po-
sition to bear the cost of the injuries resulting from their manufac-
ture of defective products. These costs could be2 redistributed among
                                                19
the defendants' customers as a business cost.
   The market-share liability rule set forth in Sindell 93 is appropri-

   189. Id. at 610, 607 P.2d at 936, 163 Cal. Rptr. at 144.
   190. Id. at 610-11, 607 P.2d at 936, 163 Cal. Rptr. at 144. See also Summers v.
Tice, 33 Cal. 2d at 88, 199 P.2d at 5.
   191. 26 Cal. 3d at 611, 607 P.2d at 936, 163 Cal. Rptr. at 144.
   192. Id.
   193. The Sindell rule has not been widely adopted since its inception in 1980. It
was rejected in the following DES cases: Morton v. Abbott Laboratories, 538 F. Supp.
593 (M.D. Fla. 1982); Tidler v. Eli Lilly & Co., 95 F.R.D. 332 (D.D.C. 1982); Ryan v.
Eli Lilly & Co., 514 F. Supp. 1004 (D.S.C. 1981); and Namm v. Charles E. Frosst &
Co., 178 N.J. Super. 19, 427 A.2d 1121 (1981). The market-share rule was also re-
jected in two recent asbestos cases: In re Related Asbestos Cases, 543 F. Supp. 1152
 (N.D. Cal. 1982) and Starling v. Seaboard Coast Line Ry., 533 F. Supp. 183 (S.D. Ga.
1982). However, of these cases, Ryan, Morton, Tidier, In re Related Asbestos Cases
and Starling,all involved diversity actions in federal district court in states where the
state supreme court had not yet ruled on the market-share liability theory. The dis-
trict courts, pursuant to the Erie doctrine, were understandably reluctant to adopt a
novel departure from the traditional causation rule absent some precedent in state
law. See Morton, 538 F. Supp. at 599. Likewise, the state appellate court in Namm
indicated that a policy shift such as the Sindell rule should be left to either the state
supreme court or the legislature. Namm, 427 A.2d at 1129. This Commentator sug-
gests that the Sindell rule will experience greater success as it is considered by state
supreme courts.
   One of the only state supreme court decisions to consider the Sindell rule was Pay.
ton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982). Payton was a DES case
 brought in the District Court for the District of Massachusetts. The district court
 certified several questions of law to the Massachusetts Supreme Judicial Court, in-
cluding. "may the defendant manufacturers, who probably supplied some of the DES
 ingested by the mothers of the plaintiff class, be held liable to members of the plain-
tiff class when neither the plaintiffs nor the defendants can identify which manufac-
turer's DES was ingested by which mothers?" 386 Mass. at 570, 437 N.E.2d at 188.
The Supreme Judicial Court was unable to provide a definitive answer to this ques-
tion. It expressed reservations concerning the plaintiff's particular version of the mar-
 ket-share theory, especially the smaller number of defendants named by the plaintiff,
1984]                              ACID RAIN

ate for use in an acid rain action. While acid rain is not a "product"
as that term is usually used, its precursors, sulfur and nitrogen diox-
ide, are "fungible" in that their chemical formulas are fixed. Thus,
each defendant is emitting the same "product" as that which is
causing the plaintiff's injury. It is certainly not the plaintiff's fault
that he is unable to prove which polluters are causing the damage.
Further, the plaintiff's inability to prove cause is the direct result of
the nature of the defendants' activity. Each is emitting similar sub-
stances which combine in the atmosphere to form an indistinguish-
able mass and travel hundreds of miles before causing injury. Indi-
vidual contributions cannot be traced.
   The requirement that the plaintiff join those defendants produc-
ing a "substantial share" of the product is more troublesome. The
Sindell court did not specify what constitutes a "substantial
share."'"' Present data indicates that about 70 percent of sulfur di-
oxide and about 50 percent of nitrogen oxide emissions come from
electric utilities burning coal or oil. 9 5 Most modeling and wind anal-
ysis indicates that the coal burning facilities in the midwestern and
mid-southern states are primarily responsible for the acid rain that
occurs in the Northeast.196 Thus, a plaintiff might be able to achieve
the "substantial share" standard by joining as defendants all large
coal and oil burning utilities in these regions. The joined defendants
could thus number over one hundred.
   Critics would plainly argue that a class of defendants this large
would be unmanageable.'9 This objection did not deter the Sindell
court. That court noted that over two hundred manufacturers pro-


and the plaintiff's insistence that the defendants not be allowed to prove that they
could not have been the source of her injuries. The court, however, did suggest that
on an adequate record it would "recognize some relaxation of the traditional identifi-
cation requirement in appropriate circumstances so as to allow recovery against a
negligent defendant of that portion of a plaintiff's damages which is represented by
that defendant's contribution of DES to the market in the relevant period of time."
386 Mass. at 574, 437 N-E.2d at 190.
   In Hardy v. Johns-Manville Sales Corp., 509 F. Supp. 1353 (E.D. Tex. 1981), an
asbestos case, one of the named defendants moved for an order permitting discovery
and for leave to file cross-actions based upon a contribution theory of market-share
apportionment The district court reviewed Texas state law decisions involving causa-
tion and damage apportionment questions and concluded that "the Erie-indicators
support a conclusion that the Texas courts would adopt some form of Sindell liability
in the asbestos-related cases." Id. at 1359.
   194. The court did note, however, that the "substantial share" standard would not
require as much as 75 to 80 percent of the market, as one commentator has suggested.
Sindell, 26 Cal. 3d at 612, 607 P.2d at 937, 163 Cal. Rptr. at 145; Comment supra
note 183, at 996.
   195. See supra notes 26-30 and accompanying text.
   196. Fischer, supra note 62, at 452.
   197. See, e.g., Diamond v. General Motors Corp., 20 Cal. App. 3d 374, 378, 97 Cal.
Rptr. 639, 642 (1971).
                     MAINE LAW REVIEW                                   [Vol. 36:117

duced DES at the time the plaintiff was exposed.1 18 Indeed, under
the Sindell court's approach, named defendants would be en-
couraged to join as many other manufacturers as possible.199 Thus,
the court must have foreseen that the number of defendants could
approach two hundred.
  The Sindell court felt its approach was justifiable because in the
long run each manufacturer's liability would approximate its respon-
sibility for the injuries caused by its own products.20 0 This rationale
works as well or better in an acid rain context. In Sindell all of the
defendants were held liable for the plaintiff's injury, an injury that
only one of the defendants actually caused. Liability only approxi-
mates responsibility as a large number of DES cases are brought
under this doctrine. In the acid rain context, however, many, and
potentially all of the joined defendants in fact could be contributors
to a single plaintiff's injury. Although there is no way to quantify
the actual contributions of individual defendants to a particular in-
jury, it is at least plausible that each major source is contributing to
a downwind injury in approximately the same proportion that its
rate of emissions bears to the total sulfate and nitrate output in the
region.
  The foregoing discussion suggests how damages would be appor-
tioned in an acid rain suit brought under the "market-share liabil-
ity" theory. Each defendant would be held liable for the share of the
plaintiff's judgment equaling that defendant's share in total output
                                                         2
of sulfur dioxide and nitrogen oxides in the region. 1 Unlike the
pharmaceutical industry, however, there is no definitive information
on "participation" in the "emissions market." Courts would have to
approximate relative emissions based on available government and
industry statistics on fuel consumption and air pollution.
   While this method of apportioning liability may appear imprecise,
it is consistent with traditional nuisance law. In cases where nui-
sances have been created by the combined acts of several indepen-
dent parties many courts have held that the factfinder should be
given wide latitude in apportioning damages.202 Because it is the na-

  198. 26 Cal. 3d at 602, 607 P.2d at 931, 163 Cal. Rptr. at 139.
  199. By cross-claiming other polluters, the defendants would thereby reduce their
individual exposure to liability. See Sindell, 26 Cal. 3d at 612, 607 P.2d at 937, 163
Cal. Rptr. at 145.
  200. See supra note 174 and accompanying text.
  201. Defining the scope of the region of pollutant sources to be included in the
defendant class will be difficult and inherently imprecise. However, while present
modelling systems may be too primitive for identifying particular sources of acid rain,
such systems should provide a reasonable basis for identifying source regions. Cf. I
CRmCAL ASSESSMENT,     supra note 21, at 9-1, 9-34 to 9-48.
  202. See California Orange Co. v. Riverside Portland Cement Co., 50 Cal. App.
522, 524, 195 P. 694, 697 (1920); Sellick v. Hall, 47 Conn. 260, 274 (1879); Little
Schuylkill Navigation Railroad & Coal Co. v. Richard's Adm'r, 57 Pa. 142, 147 (1868);
1984]                              ACID RAIN

ture of the defendants' conduct that makes apportionment difficult,
the defendant is not heard to complain that the approximation 20       of
apportionment was unfair2 °3 In Swain v. Tennessee Copper Co. 4
the plaintiff brought a nuisance action against two mining compa-
nies whose smelters were polluting the air. The court held that in
approximating the share of the plaintiff's injury the factfinder could
look at factors such as the size and capacity of the plants, the
amount of ore processed by each, the time each had been in opera-
tion, their relative distance from the plaintiff, the nature of local air
currents, and other similar facts.20 5 In Little Schuylkill Navigation,
Railroadand Coal Co. v. Richards Administrator,"' the basin of the
plaintiff's dam became filled with coal dirt washed down from sev-
eral upstream mines. The court held that while apportionment
might be very difficult, a jury should be free to measure the injury
caused by each defendant with a "liberal hand." The court further
suggested that the jury be guided by "the relative proportions
thrown inby each ....,-27 This suggestion for apportionment of
damages is essentially the same as the method employed by the
"market-share" theory- the damages to be assessed to the various
polluters are measured by "the relative proportions thrown in by
each."
   Critics of the market-share theory have argued that it violates
"established public policy and fundamental principles of tort
law, 208 allows a "radical departure from the traditional concept of
causation," 2 9 and "represents a new high water mark in tort law.'110
Such criticisms are of limited merit. Market-share liability does re-
present a break from traditional tort law by shifting the burden of
proof of causation to the defendants and imposing a system of dam-
ages apportionment based on relative contribution to the risk. How-
ever, market-share liability, if applied in an acid rain suit, neither
violates the principles underlying the causation requirement nor
contravenes basic public policy considerations. Furthermore, mar-
ket-share liability advances the most fundamental principle of tort
law - that harm negligently caused by others should not go
uncompensated.
   There are two reasons for requiring the plaintiff to prove causa-

Swain v. Tennessee Copper Co., 111 Tenn. 430, 455, 78 S.W. 93, 98-99 (1903).
   203. California Orange Co. v. Riverside Portland Cement Co., 50 Cal. App. at 525,
195 P. at 695-96.
   204. 111 Tenn. 430, 78 S.W. 93 (1903).
   205. Id. at 455, 78 S.W. at 98-99.
   206. 57 Pa. 142 (1868).
   207. Id. at 147.
   208. Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1018-19 (D.S.C. 1981).
   209. Morton v. Abbott Labs., 538 F. Supp. 593, 599 (M.D. Fla. 1982).
   210. Sindell, 26 CaL 3d at 614, 607 P.2d at 938, 163 Cal.Rptr. at 146 (Richardson,
J., dissenting).
                     MAINE LAW REVIEW                           [Vol. 36:117

tion in fact. One reason is to conserve social and judicial re-
        2
sources. 11 If plaintiffs are not required to make some minimal show-
ing that supports shifting their losses to others, there will be a much
greater incentive to utilize the courts. Also, the burden of sorting
out credible cases and producing evidence would heavily tax both
defendants and the courts.212 The second reason is fairness to defen-
dants, who should not be held liable for harms which they did not
cause, nor saddled with the burden of proving their innocence solely
by the institution of a lawsuit. 321
   These purposes would be ifl-served by requiring plaintiffs in an
acid rain action to prove causation in fact. Such a requirement
would accomplish much more than simply conserving judicial re-
sources; it would insure that no successful action for acid rain could
be brought.214 The purposes of judicial conservation could be served
adequately by requiring acid rain plaintiffs to prove an injury and to
prove that the injury was caused by acid rain.
   Fairness to defendants in an acid rain action also does not require
that plaintiffs carry the burden. Rather, such a rule insulates pol-
luters from liability to those they harm. The difficulties involved in
proving causation are not the result of any lack of diligence by
plaintiffs, but result from the nature of the defendants' group" con-
duct.215 "In effect, it is a case of safety in numbers and safety in
conformity. 21 Fairness in such cases requires shifting the causation
burden to the defendants.
   Application of the market-share theory in an acid rain suit serves
several important functions. It results in compensation for victims
of acid rain damage who could not otherwise be compensated. Such
compensation is a major purpose of tort law. Compensation lessens
the burden of losses by spreading them among many individuals or
                                     17
shifting losses to "deep pockets. 2 The market-share theory would
 also serve to deter the conduct of emitters which is resulting in
known harms.21 8 It will result in a more efficient allocation of re-
sources, by forcing polluters to internalize all of the costs of doing
 business rather than allowing polluters to shift those costs to parties
who derive no benefit from the facilities creating the pollution. Fi-
nally, the Sindell rule encourages settlements because major pol-
 luters can predict that they will be required to pay a reasonable por-

  211. 0. HOLMES, THE COMMON LAW 96 (1881).
  212. Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases,
68 VA.   L. REv. 713, 731 (1982).
  213.    Id.
  214.    See supra notes 113-122 and accompanying text.
  215.    See supra note 191 and accompanying text.
  216.    Robinson, supra note 212, at 742.
  217.    Id. at 736.
  218.    Id. at 740.
19841                                ACID RAIN

tion of the plaintiff's damages."'

                               VI.    CONCLUSION

   Acid rain is a serious environmental problem. It is presently caus-
ing substantial damage to rivers and lakes, fish, wildlife, forests and
soils, buildings, and other man-made materials. Acid rain even
threatens human health. The Clean Air Act and other federal legis-
lation are inadequate to treat the acid rain problem. The current
administration has resisted any proposals to significantly curb the
emission of sulfur dioxides and nitrogen oxides from midwestern
utilities, the largest contributors to the acid rain phenomenon.
   Individuals suffering acid rain damage to their property or health
have little choice but to bring a private tort action for damages. The
greatest impediment to such private actions is the traditional re-
quirement that the plaintiff must prove causation in fact. Acid rain
results from the aggregation of emissions from hundreds of major
sources which are chemically altered in the atmosphere and trans-
ported hundreds of miles before precipitating as acid rain. Present
technology affords no basis for tracing acid rain to particular pollu-
tion sources. Unless alternatives to traditional causation require-
ments are developed, acid rain plaintiffs will be barred from seeking
relief for the injuries inflicted on them and polluters will be en-
couraged to continue shifting the costs of their businesses to inno-
cent downwind persons.
   Three currently existing theories of liability could relieve an acid
rain plaintiff of the impossible burden of proving causation in fact-
the alternative liability rule developed in Summers v. Tice, 0 the
concert of action theory employed in Bichler v. Eli Lilly & Co.,"'
and the "market-share" liability theory enunciated in Sindell v.    Ab-
bott Laboratories.222 The market-share liability theory is the most
appropriate of the three approaches for an acid rain suit. This the-
ory recognizes that the traditional tort law requirement that the
plaintiff prove causation must be susceptible to exceptions. Where
serious injuries to people and property are being caused by the neg-
ligent conduct of multiple polluters, and the nature of the defen-
dants' conduct creates circumstances that prevent an injured party
from identifying with precision which polluters are the source of his
or her injuries, fairness requires that the burden of proof of causa-
tion shift to the polluters.

 219. See Note, Apportioning DamagesAmong Multiple Strict Tort Liability and
Negligence Defendants: A Proposed System of Group Contribution, 12 RUrCEms L.J.
309, 312 (1980).
  220. 33 Cal. 2d 80, 199 P.2d 1 (1948).
  221. 55 N.Y.2d 571, 436 NE.2d 182, 450 N.Y.S.2d 776 (1982).
  222. 26 CaL 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132 (1980), cert. denied, 449 U.S.
912 (1980).
150              MAINE LAW REVIEW                       [Vol. 36:117

   Market-share liability also provides a workable mechanism for ap-
portioning damages in proportion to relative contribution to the in-
jury. This approach is consistent with traditional nuisance law ap-
portionment mechanisms. It is also most fair because it attempts to
distribute equitably the costs of acid rain throughout the various
industries creating the problem.
                                                  Patrick J. Scully

								
To top