On Monday, EPA promulgated amendments to its "Exceptional Events" Rule. The rule
is important, particularly in the Western states, and most
particularly in connection with EPA's latest iteration of the
ozone NAAQS. EPA's most significant revision was to eliminate
the requirement that state air agencies demonstrate that, "but
for" the exceptional event, the state or relevant area would
have complied with the applicable NAAQS. The change is important
for two reasons. First, on the merits, EPA noted that:
the "but for" criterion has often been interpreted as
implying the need for a strict quantitative analysis to show a
single value ... of the estimated air quality impact from the
event. As a result, some air agencies began using burdensome
approaches to provide quantitative analyses in their exceptional
events demonstrations to show that the event in question was a
"but for" cause of a NAAQS exceedance or violation in the
sense that without the event, the exceedance or violation would not
have occurred. In many cases, the "but for" role of a
single source or event is difficult to determine with certainty and
it is more often the case that the impact of emissions from events
and other sources cannot be separately quantified and
I think that EPA got this exactly right. As tort professors have
always known, how a burden of proof is allocated is often
Which brings me to the second reason why the change is important
– at least to me. Just hearing the words "but for"
causation triggers an uncontrollable wave of nostalgia. In 1996, my
client, New England Telephone, was awarded summary judgment in a CERCLA
contribution case. It was then the first – and may still
be the only – case in which a defendant who admittedly sent
hazardous substances to a site was awarded summary judgment on the
ground that its wastes had not caused the incurrence of any
I like to think that NET prevailed due to the fine lawyering of
its counsel, but I have always known in my heart of hearts that the
identity of the judge may have had something to do with the result.
The case was heard by Robert Keeton, distinguished judge, Harvard
Law professor and – importantly – one of the authors of
Prosser and Keeton on Torts.
At the summary judgment hearing, Judge Keeton did not want to
hear from me, even though it was my motion. He did not really even
want to hear from the plaintiffs' counsel. Instead, he launched
into an approximately 30-minute lecture on the role of causation in
tort law, including, of course, a discussion of "but for"
causation. When he finished the discussion from Prosser and Keeton
about the so-called "Minnesota fire cases", Judge Keeton
paused, looked up, smiled broadly, and said: "I wrote that
It was the best summary judgment argument I ever gave. I never
said a word.
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