By David J. Hayes
October 29, 2020
In this Halloween edition of “Legally Spooking,” it seems appropriate to address those big, scary health and environmental disasters that strike once or twice in a generation. You know what I’m talking about: the epidemic of injuries and deaths identified in the 1960s and 1970s that we learned, belatedly, were caused by smoking tobacco products and, separately, by exposure to asbestos; the environmental and health horrors uncovered at Love Canal, Times Beach and the Valley of the Drums; the oil spill disaster in the Gulf of Mexico that we watched unfold, in real time, during the summer of 2010; and Volkswagen's evil plot to trick car buyers into thinking they were buying a clean diesel treat.
Thankfully, major disasters like these do not come along every Halloween. But, as in a spook house, we know that more frightening scenes await around the next corner, including opioids’ horrors and climate change-caused health and environmental wreckage.
State attorneys general have played a key role in resolving past health and environmental crises, and they are now taking on the opioid and climate crises. Knowing how difficult these societal challenges are to resolve, the State Energy & Environmental Impact Center launched a major project 18 months ago to identify legal mechanisms that have been employed to address and resolve — with varying levels of success — the U.S.’s most challenging and instructive health and environmental liability and compensation challenges over the last fifty years. Our goal has been to provide a comprehensive, independent analysis of prior judicial and legislative settlement structures to inform how advocates, attorneys general, judges, legislators and policymakers might effectively navigate the crises to come.
Our project will culminate on November 12 with the release of a new book entitled Looking Back to Move Forward: Resolving Health & Environmental Crises, published by the Environmental Law Institute and West Academic. Edited by Hampden T. Macbeth, the book includes seven case studies written by knowledgeable experts on major health-related crises (asbestos; tobacco; diethylstilbestrol (DES); and vaccines) and environmental-related crises (Superfund; the Gulf oil spill disaster; and the Volkswagen “Dieselgate” scandal). A must-read synthesis chapter identifies key ingredients typically needed to successfully resolve mega-challenges that, in the absence of creative and concerted settlement efforts, can otherwise remain unresolved and festering for decades, hurting individuals, communities, and all of society.
So watch this space for our November 12 release of the book — two weeks from today. In the meantime, I leave you with two early reactions to the book:
Professor Nora Freeman Engstrom of Stanford Law School: “Sweeping in scope yet exquisite in detail, Looking Back to Move Forward chronicles the most serious health and environmental crises of the past century. By tallying what our courts and policymakers got wrong and right, the volume is an essential resource for those confronting today’s challenges—and those who will address calamities to come.”
Massachusetts Attorney General Maura Healey: “Looking Back to Move Forward: Resolving Health & Environmental Crises offers a timely master class on the strategies and tools used by advocates, judges, legislators, and policymakers to resolve some of the most high-profile—and vexing—health and environmental challenges of our time, from tobacco exposure to VW's diesel deception. Packed with detail, Looking Back distills key guiding principles, replicable models and pitfalls to avoid. As we continue to confront complex crises, like the existential threat of climate change and the epidemic of opioid addiction—both fueled by corporate deception and denial—we can draw on these crisply rendered lessons learned to protect the health of our communities and environment and hold accountable those who violate the law.”
David J. Hayes is a nationally recognized environmental, energy and natural resources lawyer who leads the State Energy & Environmental Impact Center.