Trial Magazine

Toxic substances in our water, air, and land harm local communities and present risks for future generations. Because of the nature of environmental contamination, it inevitably affects many people over many square miles—and often exists in our surroundings for many years before it is discovered or cleaned up.

Too often, state and federal regulators fall woefully short of protecting people and natural resources. Trial lawyers fill this void, advocating for better standards and holding corporations accountable when their practices and misconduct lead to pollution and toxic exposure that harms human health and the environment.

Early cases from the mid-20th century established important pillars for future litigation and helped to raise awareness about how the environment—and what humans do to it—affects us all. Today, civil justice continues to be crucial in uncovering unsafe levels of contaminants in the air and in drinking water, toxic substances in workplaces and in consumer products, dangerous pesticides and herbicides, and more.

Early Cases Shape National Laws

The modern federal environmental statutory framework emerged in the 1970s as the public awakened to the dangers of pollution and the critical importance of conservation and remediation. This era saw the enactment of the United States’ foundational environmental law, the National Environmental Policy Act (NEPA); the Clean Air Act; and the Clean Water Act, among others. But even before these federal environmental statutes, lawyers answered the call when companies’ actions threatened natural surroundings and harmed communities.

In 1962, Consolidated Edison proposed constructing a hydroelectric power plant in the Hudson Valley, which would have involved cutting into the Storm King Mountain and turning a nearby forest into a reservoir—indelibly impacting the local environment. The resulting court case, Scenic Hudson Preservation Council v. Federal Power Commission, determined that federal agencies responsible for granting permits had to consider the environmental and aesthetic impact of a project. It also established that private citizens have standing to sue for impairment of the benefits they derive from the environment. The case helped pave the way for the enactment of NEPA.

Hazardous chemical contamination in the Love Canal neighborhood of Niagara Falls, N.Y., helped to spur passage of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which provides for a federal “Superfund” to remediate contamination at abandoned or uncontrolled waste sites. In the 1950s, Hooker Chemical & Plastic Corp. sold to the local school board a piece of property—a canal that it had dumped thousands of tons of hazardous chemicals into and then covered over with dirt.

Twenty years later, it became clear that the chemicals were leaching into the soil and into buildings in the neighborhood. While trees and plants died, puddles of chemicals formed in people’s yards and basements—the chemicals eventually evaporated into the air and caused health problems ranging from burns to birth defects. Hooker Chemical paid restitution to the residents only when forced to by litigation.

Sadly, Love Canal was just one of many chemical contamination cases—from chromium-6 groundwater contamination in Hinkley, Calif., to W.R. Grace Co.’s trichloroethylene pollution of water wells in the northeastern United States. But trial lawyers were there to make sure the corporations that poisoned these communities did not escape accountability.

Civil Justice Continues to Play an Integral Role

Whether it is uncovering decades-long contamination and noncompliance, using citizen suits to compel state and federal agencies to enforce their own laws, exposing shortcomings in regulations to advocate for stronger standards, or bringing lawsuits through common law claims and state statutes on behalf of injured plaintiffs, trial lawyers are still a crucial link in protecting human health and the environment.

Catastrophic oil spills. When the Exxon Valdez hit a reef and leaked more than 10 million gallons of oil along thousands of miles of Alaska’s coastline in 1989, it set off an environmental disaster that would take decades to remediate. Investigations into the spill revealed a shocking level of negligence by the oil giant—including knowingly operating the tanker ship without radar—despite the company’s reassurances that it was prepared for such a disaster. The spill ravaged not only wildlife, killing thousands of marine mammals and sea birds, but also the local economy.

Residents who depended on the ocean for their livelihoods and whose property was damaged joined together in a class action against Exxon. Trial lawyers fought Exxon in court, even as the oil giant made every effort to evade responsibility. A jury awarded the plaintiffs billions in punitive damages, which were reduced by several courts, but Exxon was still forced to pay damages and cleanup costs.

History repeated itself when the Deepwater Horizon oil rig exploded in 2010, spilling millions of gallons of oil into the Gulf of Mexico and devastating waterways and property. Again, trial lawyers pushed for accountability. Plaintiffs alleged that British Petroleum and others had made a series of reckless decisions that led to the explosion.

A multibillion dollar class action settlement agreement provided relief to businesses, such as those dependent on the seafood market and water recreation, and property owners impacted by the negative environmental effects of the spill. The settlement also provided separate compensation and medical monitoring for clean-up workers and residents living close to affected beachfront and wetlands who suffered from health conditions related to the spill.

Unfortunately, devastating oil spills continue to happen—in October, thousands of gallons of crude oil leaked from a pipeline off the coast of southern California, killing wildlife and leaving oil slicks on beaches.

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Studies have shown that approximately 110 million Americans are potentially drinking water with unsafe levels of PFAS.

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The Flint, Mich., water crisis. Untreated water flowing from the Flint River into thousands of homes was so corrosive that lead leached from aging pipes into residents’ drinking water for years. Testing showed that lead levels in the foul-smelling, cloudy drinking water were well above federal standards: Some levels were as high as 13,000 parts per billion—the highest acceptable level is 15 parts per billion. Lead poisoning can have particularly harmful effects on children—leading to brain damage, developmental disabilities, seizures, and more—and nearly 9,000 children were exposed to unacceptable lead levels. This crisis disproportionately affected low-income residents and people of color. Yet the city failed to take action and fix the problem.

Residents took a stand, filing lawsuits against the city and state governments, as well as the EPA, to compel the city to comply with the Safe Drinking Water Act and ensure that residents had regular access to safe sources of drinking water—through bottled water deliveries and the installation of home filtering systems. A class action filed against the city and two engineering contractors led to a key ruling in the Sixth Circuit that city officials were not entitled to qualified immunity because they had violated the plaintiffs’ constitutional rights with “deliberate indifference.”

The ongoing asbestos battle and the regulation of toxic substances. The potential danger of asbestos was noted as early as the 1920s, but it wasn’t until 1973 that a court first ruled that, under §402A of The Restatement (Second) of Torts, employers have a duty to warn workers about the risk of asbestos exposure causing mesothelioma. In Borel v. Fiberboard Paper Products Co., the Fifth Circuit upheld a verdict against multiple asbestos manufacturers on behalf of an insulation worker who died from mesothelioma. At trial, the plaintiff attorneys successfully argued that the defendants should be strictly liable because they failed to warn of the foreseeable danger of asbestos in their products, making them unreasonably dangerous.

A popular insulation material, asbestos was heavily used for decades by shipbuilders, construction workers, and U.S. Navy servicemembers—many of whom developed asbestos diseases. The latency of the disease has led to the longest-existing mass tort in U.S. history.

Despite robust evidence of the dangers asbestos poses, the substance still is not banned in the United States. The Occupational Safety and Health Act (OSH Act) was passed in 1970 as workplace injuries and illnesses were increasing, and one of its first outcomes was to set standards for workplace exposure to asbestos and mandate warnings for asbestos products in 1974. Standards for exposure to other toxic substances in the workplace such as lead, benzene, and arsenic followed.

But the OSH Act’s impact was limited as it does not regulate these substances beyond the workplace. First enacted in 1976, the Toxic Substances Control Act (TSCA) is the primary federal law regulating chemical substances. But the act had shortcomings that diminished its ability to adequately restrict the use of harmful chemicals. Approximately 60,000 substances were grandfathered in when the law was passed, and the EPA has a huge backlog of substances that have not been evaluated properly.

Civil justice advocates have been a critical force in trying to correct this. Due to the work of environmental and public health advocates, including AAJ, TSCA was updated in 2016 with the enactment of the Frank R. Lautenberg Chemical Safety Act for the 21st Century, which requires the EPA to evaluate existing and new chemicals and to develop risk-based safety standards. The act also preserved state laws that had been enacted previously to fill gaps in TSCA and does not preempt state tort remedies. Asbestos was one of the first 10 priority substances to be assessed under the act, and its risk evaluation was completed last December.

Dangerous herbicides. In 2015, the International Agency for Research on Cancer determined that glyphosate, a key ingredient in the popular weed killer Roundup, was a probable human carcinogen. As trial lawyers started digging into the history of the chemical’s use, they discovered that the product’s manufacturer, Monsanto Co., had known for decades from its own testing about glyphosate’s risks. But it didn’t stop selling Roundup, which became one of the bestselling herbicides on the market.

Through cases brought at the state level and in federal multidistrict litigation (MDL), trial lawyers have publicly exposed what the company sought to hide and established a link between the weed killer and cancer—with multiple juries awarding damages to plaintiffs injured by the product. Earlier this year, the Ninth Circuit affirmed one of those jury verdicts and held that federal law did not preempt the plaintiff’s claims in the first federal MDL bellwether trial, Hardeman v. Monsanto Co.

Roundup is not the only popular herbicide that has raised concerns. Paraquat, a highly toxic chemical used in industrial agriculture and registered under the Federal Insecticide, Fungicide, and Rodenticide Act in 1964, is the subject of hundreds of personal injury lawsuits against manufacturers. Plaintiffs allege the herbicide causes adverse health effects such as Parkinson’s disease. The Judicial Panel on Multidistrict Litigation recently created an MDL for paraquat cases in the Southern District of Illinois. And agricultural workers and environmental groups are suing the EPA for reapproving paraquat this summer, despite also issuing interim mitigation measures for users of the herbicide to follow to reduce exposure to it.

The Volkswagen emissions scandal. Despite being advertised as a “clean” alternative, several models of Volkswagen’s diesel vehicles manufactured from 2009 on were in fact emitting illegal levels of nitrogen oxides into the air. After a year-long investigation by the EPA and the California Air Resources Board, Volkswagen admitted in September 2015 to tampering with about 11 million vehicles. The company programmed the vehicles’ full emissions controls to turn on during laboratory testing but to turn off during normal operations. Consequently, the cars on the road emitted nitrogen oxides at up to 40 times the allowable limit, comparable to that of a modern 18-wheeler truck.

Vehicle owners filed more than 500 class actions against the automaker in federal courts, seeking remedies for state contract, consumer protection, unjust enrichment, and warranty claims. Some owners sought refunds of the full purchase price of their vehicles, stating that they would not have purchased them but for Volkswagen’s false claims about their superior fuel economy and environmental sustainability. Other owners sought the difference between what they paid for a Volkswagen diesel vehicle and what they would have paid for a less-expensive gasoline version.

Volkswagen agreed to pay a record $14.7 billion to settle the litigation. It also reached a settlement with the EPA for Clean Air Act violations. Employees and executives knew about the scandal for years, leading to $4.3 billion in criminal and civil penalties from the U.S. Department of Justice, as well as criminal investigations, trials, and convictions.

Ethylene oxide. Classified as a known carcinogen by the EPA, ethylene oxide—an invisible and odorless gas used to sterilize medical equipment and in the manufacture of household products—presents a serious health risk when it is emitted into the air from factories and warehouses. EPA data shows that dozens of communities in more than half of U.S. states have levels of airborne toxins, mostly ethylene oxide, that place residents at a higher risk of cancer.

Trial lawyers in Georgia, Illinois, and other states are helping residents in these high-risk areas hold the companies accountable for emitting dangerous levels of ethylene oxide. Although the EPA has yet to take any meaningful action, the public outcry has led to some agreements to reduce emissions and at least one polluting plant closing permanently. Hundreds of lawsuits are pending against Sterigenics, C.R. Bard, and others.

PFAS: a legacy of contamination. A major area of concern currently is the widespread groundwater contamination caused by the industrial and military use of a class of man-made chemicals known as per- and polyfluoroalkyl substances (PFAS). Touted for their water-repellent properties, PFAS have been used in consumer products ranging from nonstick cookware to food wrappers. Often called “forever chemicals” because of their persistence in the environment and the human body, PFAS have been linked to cancer, reproductive problems, weakened childhood immunity, and more.

The manufacture and disposal of these chemicals take a devastating toll on the environment. Studies have shown widespread water contamination nationwide—with approximately 110 million Americans potentially drinking water with unsafe levels of PFAS.

Litigation in West Virginia in the early 2000s against DuPont, the manufacturer of Teflon, was key to raising awareness about PFAS. The lawsuit involved the emission of perfluorooctanoic acid (C8), a type of PFAS, into the air and waterways since the 1950s from a plant manufacturing the chemical in Parkersburg, W. Va. The chemical eventually was detected in drinking water supplies, and a class action led to a landmark settlement that established a science commission to evaluate the effects of C8 and medical monitoring for future claims.

PFAS also are present in aqueous film forming foam (AFFF) used primarily on military bases to fight fires. Ongoing litigation, including an MDL in the District of South Carolina, involves claims for personal injury, medical monitoring, and diminution in property value. A settlement of a subset of claims in the AFFF MDL was the first to include damages for personal injury claims when PFAS were used as a component in a product, extending beyond claims against the manufacturer of the chemical itself.

Trial lawyers also represent several states suing PFAS manufacturers for contaminating public water supplies. The increased awareness of PFAS risks has led to positive movement on the state and federal regulatory fronts.

These cases are a snapshot of the many environmental and toxic exposure problems out there—and the critical role of trial lawyers in catalyzing change and ensuring accountability. As the world faces a new era of environmental and human harm through the lens of climate change, civil justice will continue to be a crucial safeguard.

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The Environmental Justice Movement

In 1982, when dump trucks full of hazardous waste arrived in Warren County, N.C.—a low-income and overwhelmingly Black community—protestors concerned about chemicals leaching into drinking water supplies laid down in front of the caravan, stopping its progress to a local landfill. It was far from the first protest over the disproportionate disposal of hazardous materials or the siting of polluting factories in low-income communities and communities of color, but it gained national attention, highlighting the intersection between environmental harm and racism.

With its roots in the civil rights movement, the environmental justice movement seeks to ensure fair treatment of all—regardless of race, national origin, or income—when it comes to the development and enforcement of environmental laws and regulations. And integral to this is ensuring these communities’ voices are heard and included in the decision-making and regulatory process. Today, the EPA has a formal environmental justice office, as do many states.