Chapter 1: Synthesizing Lessons Learned From Seven Major Crises

In “Chapter 1: Synthesizing Lessons Learned From Seven Major Crises,” David J. Hayes, at the time Executive Director of the State Energy & Environmental Impact Center at the New York University (NYU) School of Law, synthesizes the lessons from the seven major health and environmental crises covered in the book.

The book describes the tools that advocates, judges, legislators, and policymakers have applied to address and resolve—with varying levels of success—the seven crises, providing a rich source of insights that should inform and guide how the legal system responds to future health and environmental crises—including crises that already are on our doorstep, such as the opioid and climate crises. The chapter offers four instructive takeaways that these historic health and environmental controversies provide litigants, judges, and policymakers who will be confronting similar challenges in the future.

First, mega settlements are not a necessary route for resolving major health and environmental problems. As many of the case studies reviewed in the following chapters confirm, global settlements of complex, nationally significant health and environmental crises require a unique confluence of circumstances. Wicked crises are more commonly resolved through individually important—but not fully dispositive—steps that create momentum and provide a solid basis for additional progress. That said, boldness is necessary at every turn; pushing only modest solutions will most likely extend the crisis rather than solve it.

Second, parties seeking to resolve massive health and environmental issues cannot compromise on the basics. The cases explored in this book identify several boxes that must be checked and worked into any durable solution. Specifically, responsible parties must be held accountable and the offending conduct stopped, and victims must be compensated and damaged resources restored. The boxes do not need to all be checked at once (see the first point above), but none of them can be prematurely compromised. For example, letting responsible companies off the hook in return for a limited, government-provided benefit will jeopardize future efforts to achieve an equitable and effective settlement of the remaining issues.

Third, meaningful public participation in the resolution process and public support for proposed solutions will enhance the prospects of success. This particularly holds true around seminal events such as congressional action or entry of a complex, judicially approved settlement agreement. As a corollary, most resolutions remain elusive unless, and until, key parties have a “day in court” that publicly exposes, for the benefit of both primary protagonists and influential observers, key legal and evidentiary strengths and vulnerabilities. These case examples tell us that one-sided resolutions of major societal health or environmental harms cannot be strong-armed into place outside the public view.

Lastly, nationally significant health and environmental crises present lawyers, courts, and policymakers with enormous logistical and management challenges that must be confronted and addressed. The case studies reviewed in this book show how it can be done.

About the Author

David J. Hayes is the Executive Director of the State Energy & Environmental Impact Center at NYU School of Law. He was the Deputy Secretary and Chief Operating Officer of the U.S. Department of the Interior for President Bill Clinton and President Barack Obama. He is an Adjunct Professor at the NYU School of Law, a former Distinguished Lecturer in Law at Stanford Law School, and a graduate of the University of Notre Dame and Stanford Law School.