Lawyer Monthly - September 2023

how, while nearly 1,000 people perished in the sinking of the Titanic because the ship did not have enough lifeboats to hold them, the ship’s number of lifeboats actually fully complied with existing government regulations. It was just that the regulations had been written years earlier, when ocean-going ships carried far fewer passengers, and had not been updated to protect the far greater number of passengers on a ship so large as the Titanic. In other words, something could be regulatorily compliant and yet still terribly unsafe. Environmental ‘regulation’ often works just like this. Regulators today determine what are supposedly ‘safe’ concentrations of a carcinogen in air or water, but based on decades-old science that does not take into account all that is currently known about a chemical’s dangers. And of course, industry benefits from this because, invariably, the outdated regulations underestimate • supply safe and clean water to communities whose supplies were ruined by contamination; • pay for the lost property value their industrial operations have caused, and in one community, guarantee the value of the families’ homes at their uncontaminated value; • compensate residents for the anxiety they have caused; • compensate hundreds of cancer victims who had been exposed for years to a carcinogen discharged for decades from a plant in their community. Just last year, I was co-counsel on a toxic exposure case where the jury awarded $363 million to my client: a woman who contracted breast cancer after 22 years of unknowing inhalation of a carcinogen released daily from a nearby plant. The case is especially significant because $325 million of the jury’s verdict – nearly 90% – was for punitive damages. The jury was clearly outraged by the polluter’s decades-long release of the toxic chemical into the plaintiff’s residential community and failure to do anything meaningful to protect her from it, or even warn her that her health might be in danger. Why the Polluters Control Pollution Regulation in the US Over the last 23 years, I have worked on hundreds of environmental contamination cases. Each one has followed the same enraging script: government regulators knew all along 24 LAWYER MONTHLY SEPTEMBER 2023 about a company’s reckless disposal of chemicals, threatening its neighbors. But they did not force a cleanup to protect the people or issue warnings so that the people could try to protect themselves. Why does this happen? While we have so-called ‘environmental regulation’ in this country, it is mainly controlled by polluters, and by governments far more attentive to the business needs of polluters than to the health and safety of the people. For example: ‘Safe until proven dangerous’ We often do not require proof that a chemical is safe before we allow companies to use it… and so the potential risk of the chemical falls not on the company profiting by its use, but instead on the company’s neighbours, who neither know of the danger nor profit from it, but who nonetheless will pay a dear price if the polluter and government have made a bad bet. Regulators often react only when a toxic chemical has proven unsafe to a community. Of course, when this proof finally shows up, it is usually years after people have been breathing or drinking the chemical and someone notices that there is more cancer than normally expected in that community. But by then, it is too late. Regulations are conveniently outdated David Michaels has written a wonderful book about industry dominating government regulation called ‘Doubt is Their Product’. Michaels tells the story of Billions of dollars ride on environmental regulation.

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