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This paper proposes to explore the current and prospective role of equitable theories and remedies in toxic tort litigation. The argument is for an unjust enrichment remedy in certain property pollution cases. The idea is to remove the monetary incentive for polluting economically depressed areas. Two specific areas of investigation come immediately to mind. First, courts have already embraced equitable remedies to address pollution damages. Under Ayers and its progeny, many states have allowed the equitable remedy medical monitoring. What is important to understand is how legal relief for increased risk claims would have been inadequate and also the propriety of finding an equitable approach. Second, moving from personal injury to real property damage claims, we see a similar opportunity for use of equitable relief under an unjust enrichment theory. Currently, there is much debate about the propriety of restoration damages as opposed to fair market value (FMV) damages for the landowners whose property is damaged by the pollution of another. Each approach has various strengths and weaknesses. A better approach might be to use unjust enrichment on a law and economics basis as a remedy to force polluters to internalize the cost of pollution. For instance, take a polluter who pollutes the neighboring environs in lieu of paying one million dollars in disposal and storage costs. Assume the neighboring properties are only worth three hundred thousand dollars on a FMV approach. Assume further that restoration costs are ten million dollars, but that the relevant government agency would accept a natural attenuation clean-up approach. How should the remedy be set, and should one consider allowing a de facto pollution easement?

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In Kafka’s Before the Law, a man is arrested for a crime unknown to him and is tried in a court he does not recognize. To help explain the situation to the bewildered prisoner, a parable is related about a man seeking admittance to the Law. He comes before the gate of the Law and is told by the gatekeeper that it is possible to enter, but not at that moment. The man pleads with the gatekeeper but is denied entry. He spends his entire life before the gate, and just before his death, asks the gatekeeper, “Everyone strives after the law . . . , so how does it happen that in these many years no one but myself has ever begged admittance?” The gatekeeper sees that the man is near death, and shouts at him, “No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.”

No abstract