State attorneys general have played an important role in helping to develop fair, effective and enduring resolutions of major health and environmental liability and compensation claims involving tobacco use, the cleanup of legacy environmental contamination, and others. Each of these matters involved major, broad-based health and environmental threats that challenged traditional judicial or legislative processes. They required lawyers and policy-makers to develop creative settlement approaches that matched the unique socially and fiscally significant claims and compensation issues involved in each case.
The NYU School of Law’s State Energy and Environmental Impact Center (State Impact Center) has launched a Health & Environmental Settlements Project to evaluate mechanisms that have been used by state attorneys general, the U.S. Congress, and others to address and resolve the toughest large-scale health and environmental liability and compensation challenges over the last fifty years. The goal of the Project is to provide a comprehensive, independent analysis of prior judicial and legislative settlement structures, including an evaluation of settlement approaches that, with the advantage of hindsight, worked well and achieved their purposes, and those that did not.
The State Impact Center is undertaking this Project because of the likelihood that state attorneys general and other public and private lawyers and policy-makers will be drawn into future cases that, like tobacco, hazardous waste cleanup activity, vaccines and other matters, will have major financial, public health and environmental implications. It is vitally important that all interested parties have the benefit of prior experience when considering how to construct strong and enduring settlements in future cases.
The Settlements Project will focus on a limited number of major health and/or environmental threats that have triggered mass tort-type claims for compensation that challenged traditional judicial or legislative mechanisms for resolution. The Project will focus at the outset on the following matters:
- The Tobacco Master Settlement Agreement;
- The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as “Superfund”);
- The National Childhood Vaccine Injury Act;
- The Volkswagen Emissions Settlement;
- The Gulf Oil Spill Settlement;
- Asbestos Settlement.
The Settlements Project solicits input regarding additional contexts in which settlement structures have been developed to address complex and pervasive liability and compensation situations, including in contexts unrelated to health and environmental issues.
Common Legal/Legislative Issues Evaluated for Each Matter
The Settlements Project will organize its settlement-specific analyses around several common elements that typically are involved in shaping settlements for large and complex health and environmental claims. Elements that are likely to be evaluated for each matter reviewed include:
- Societal Context: nature and scope of the claims for which relief is sought.
- Liability/Causation: how liability and causation issues are addressed/resolved in the settlement, including level of factual proof needed for claims, strength of causal connection required for recovery, etc.
- Payouts: structures used to identify, facilitate and finance current and potential future payouts.
- Retrospective evaluation of settlement structure: lessons learned regarding settlement mechanisms that worked well, and those that did not.