The recent class action settlement between Midwestern drinking water utilities and pesticide manufacturer Syngenta over contamination from the company’s herbicide, atrazine, sidesteps a sought-after precedent on how courts will deal with tort suits seeking damages from toxic substances that may pose harms at low doses of exposure, legal experts say.
Syngenta announced the settlement May 25 with utilities in City of Greenville, et al. v. Syngenta Crop Protection, Inc., setting up a $105 million fund to help the public water utilities pay or recoup costs for treating atrazine in water supplies. Because of the class action suit, any of the nearly 2,000 public water systems in the United States can claim from the fund if they can show measurable concentrations of atrazine.
“The proposed settlement would put an end to the expense, inconvenience and distraction of further litigation while providing significant monetary relief to the proposed class . . . in exchange for a release that resolves the Plaintiffs’ claims related to the presence of atrazine in their water, without interfering with the jurisdiction of any regulatory agency, and preserving any claims arising from a point-source contamination and for indemnity, contribution among joint tortfeasers or apportionment of liability or fault, with respect to any claim against a Releasing Party, arising from the consumption of the Releasing Parties’ Water, that is not a claim for property damage or economic loss,” according to the settlement.
But the settlement sidesteps the question of how courts may deal with claims where dozens of commonly used chemicals are believed to cause harm at low doses.
While detection and monitoring methods for chemicals in the environment and the body have improved, allowing plaintiffs to find contamination at amounts below regulatory levels, in many cases courts and tort law have not caught up with the science, sources say. This is especially the case for the emerging groups of chemicals that some are arguing cause developmental harms outside the traditional, linear dose-response curves where the greatest harms are observed at the highest doses.
Atrazine, which according to some studies may have particularly harmful effects on the endocrine system at very low levels of exposure, is one such example. The environmental group Save The Frogs! is petitioning EPA to ban on the use and production of atrazine, citing dozens of studies that the activists say shows developmental harms in frogs, fish and aquatic mammals due to atrazine exposure. “Atrazine consistently demasculinizes and feminizes the gonads of exposed males across all vertebrate classes examined,” the petition says.
Similarly, recently completed EPA-sponsored studies of perfluorooctanoic acid (PFOA), the ubiquitous chemical used to make products water and stain resistant, showed developmental harms only at the smallest doses.
However, such science is still not widely accepted, either in the policy arena or in the courts.
“The problem for judges and courts is that they exist to find an answer,” says an attorney. “A judge wants a consensus and science doesn’t often give a consensus.”
Toxic tort cases rest largely on the issue of causation — plaintiffs bear the burden of showing that exposure caused the injury. However, in many cases, there are difficulties proving causation given the potential for confounding factors leading to disease — such as smoking or obesity — and that a specific exposure caused a disease, says a legal source. Other than mesothelioma and asbestos, very few diseases are linked to a single chemical, the source adds.
Chemicals with possible low-dose effects are further complicating the issue for plaintiffs, Carla Burke, an attorney with Baron & Budd who represents drinking water utilities in toxics cases, told a May 16 Environmental Law Institute (ELI) panel discussion in Washington, DC, entitled “Setting the Bar for ‘Injury’ in Environmental Exposure Cases: How Low Can It Go?”
With atrazine, for example, while studies have shown effects on gonadal development in frogs at low levels, and more studies are set to be released in an upcoming issue ofEndocrine Review that back up the potential for effects at low doses, EPA in 2010 declined to use that data in its pending reassessment of the chemical.
“What is interesting about endocrine disrupting chemicals is that they are the first route to get the attention as behaving differently,” Burke said. “As litigators we are going to have to figure out how to deal with that . . . courts are going to be all over the place and its definition of emerging science.”
Policymakers are grappling with similar concerns. For example, Sen. John Kerry (D-MA), who is sponsoring stalled legislation to create a new endocrine research program at the National Institute for Environmental Health Sciences (NIEHS), cautioned that future regulation of chemicals could face immense backlash from industry if regulators are unable to demonstrate a cause-and-effect linkage between endocrine disruptors and human health harms has been firmly established.
“I’m not sure that the cause and effect is as dispositive as clearly our intuition and instinct and sort of common-sense tells us it is,” Kerry asked panelists at an event last month sponsored by the H. John Heinz III Center, an environmental nonprofit in Washington, DC.
“So where are we, and how fast can we get to the point that there is a definitive cause-and-effect linkage to these diseases and process to refute what will be an onslaught by the 80,000 chemical producers’ expenditures to prevent us from doing anything?”
And lawyers on both sides will be closely watching EPA since “whatever results EPA reaches about the science, the end point will be very important” as judges often look to the agency on scientific issues, the attorney adds. “If the [Endocrine Disruptor Screening Program (EDSP)] finds endocrine disruption at ‘X’ level [of exposure], the court will look at that exact language” when making a determination on whether a plaintiff in a common law suit was injured by the contamination.
The now settled atrazine case had the potential to tackle several of these issues. The agricultural herbicide, which is used to control broad-leaf and grassy weeds is ubiquitous in Midwestern water supplies and there is what some scientists say is a growing body of evidence that the chemical is more dangerous at low levels — potentially effecting the endocrine system — and as such does not follow the traditional dose response curve.
“What courts like are [epidemiological] studies. They like published peer-reviewed papers, they like experts who can explain these things and not make it seem radical,” adds the attorney. Lawyers have to make the emerging science “as palatable as possible” for judges, the source says.
However, while the science behind potential effects of low-dose exposures is still developing, defense lawyers are urging judges to base their decisions on proven toxicology, John Guttmann, an attorney with Beveridge & Diamond, said during the ELI panel discussion.
“We are in a situation . . . where the science may be lagging behind in terms of analyzing the effects at a low level — there is a lag, and the gap may never be filled,” Guttmann said.
In a statement, a Syngenta spokeswoman says the settlement was a “business decision” and that the company “acknowledges no liability and continues to stand by the safety of atrazine. The scientific evidence continues to make it clear that no one ever has or ever could be exposed to enough atrazine in water to affect their health.”
The company reached the agreement to end the uncertainty over the product’s future, adding that “The value of atrazine is clear. It benefits American farmers by up to $3.3 billion and supports up to 85,000 American jobs related to farming annually. Atrazine helps protect the environment and critical wildlife habitat by reducing soil erosion by up to 85 million tons each year. There is no substitute for atrazine, which is used in more than 60 countries and meets the most stringent safety requirements in the world.” — Jenny Hopkinson ( firstname.lastname@example.org
Atrazine Pact May Bypass Precedent on Low-Dose Exposure Risks
Inside EPA reports that the “Atrazine Pact May Bypass Precedent on Low-Dose Exposure Risks.”
Although this is one of the more lengthy reports on the settlement, it still fails to add much common sense. The piece assumes that the court would have resolved the issue. It suggests the science isn’t settled, and only if the case went to court and the plaintiffs were victorious, we’d have found a precedent on how to deal with such cases. Now, this article suggests, the dangers still lurk, and plaintiffs are left without recourse.
The article could have added some more rational and science-based analysis:
While the company says the settlement was a “business decision,” you’ve got to think that “business” was also the reason the plaintiffs not only settled, but brought the suit in the first place. The EPA has studied Atrazine for decades, and while all pesticides are highly regulated, the EPA continues to stand behind the safety of Atrazine as used.