Project

The Health & Environmental Settlements Project

A chalk-drawn, right-facing arrow, with various icons (including: an oil rig, a tank of toxic substances, a car emitting pollution, lungs, a pill bottle, and a syringe), along the horizontal part of the arrow.

In Novem­ber 2020, as the cul­mi­na­tion of the Health & Envi­ron­men­tal Set­tle­ments Project, the New York Uni­ver­si­ty (NYU) School of Law’s State Ener­gy & Envi­ron­men­tal Impact Cen­ter (State Impact Cen­ter) in part­ner­ship with the Envi­ron­men­tal Law Insti­tute released Look­ing Back to Move For­ward: Resolv­ing Health & Envi­ron­men­tal Crises. Detail­ing how sev­en major health and envi­ron­men­tal lia­bil­i­ty and com­pen­sa­tion crises were resolved, lead­ing experts pro­vide a rich source of insights that should inform and guide how the courts and Con­gress respond to future health and envi­ron­men­tal crises — includ­ing crises that already are on our doorstep, such as the opi­oid and cli­mate crises.

The State Impact Cen­ter launched the 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 Project involved two phas­es: a work­shop that kicked off the project in March 2019 and the Novem­ber 2020 release of Look­ing Back to Move For­ward: Resolv­ing Health & Envi­ron­men­tal Crises, a book that exam­ines how major health and envi­ron­men­tal crises have been resolved in the past, and the learn­ings that we should take away from that history.

Work­shop

In March 2019, the State Impact Cen­ter launched the Set­tle­ments Project by hold­ing a work­shop at the NYU School of Law on four major health and envi­ron­men­tal set­tle­ments. The work­shop helped inform the devel­op­ment of Look­ing Back to Move For­ward with expert pan­el reviews of four major health and envi­ron­men­tal settlements:

  • The Tobac­co Mas­ter Set­tle­ment Agreement
  • The Gulf Oil Spill Settlement
  • The Super­fund Leg­isla­tive Settlement
  • The Volk­swa­gen Emis­sions Settlement

The work­shop also fea­tured keynote remarks by Ken­neth Fein­berg, a nation­al­ly-rec­og­nized expert in medi­a­tion and alter­na­tive dis­pute res­o­lu­tion, and a pre­sen­ta­tion by Dr. Cheryl Heal­ton, Dean and Pro­fes­sor of the School of Glob­al Pub­lic Health and the Direc­tor of the Glob­al Insti­tute of Pub­lic Health at NYU. Based on rich dis­cus­sions at the work­shop, a book was com­mis­sioned that would address the four major crises cov­ered in the work­shop, and three addi­tion­al instruc­tive case exam­ples involv­ing the DES Daugh­ters, the Nation­al Child­hood Vac­cine Injury Act, and the asbestos health crisis.

About the Workshop

About the Workshop

The Health & Envi­ron­men­tal Set­tle­ments Project has eval­u­at­ed mech­a­nisms that have been used by state attor­neys gen­er­al, the U.S. Con­gress, and oth­ers to address and resolve sev­er­al of the tough­est large-scale health and envi­ron­men­tal lia­bil­i­ty and com­pen­sa­tion chal­lenges over the last fifty years. On March 12, 2019, the State Impact Cen­ter’s Health & Envi­ron­men­tal Set­tle­ments Project held a work­shop at NYU School of Law on four major health and envi­ron­men­tal set­tle­ments. The work­shop informed the devel­op­ment of the Set­tle­ment Project’s final prod­uct, Look­ing Back to Move For­ward: Resolv­ing Health & Envi­ron­men­tal Crises.

The work­shop fea­tured expert pan­el reviews of four major health and envi­ron­men­tal set­tle­ments, keynote remarks by Ken­neth Fein­berg, a nation­al­ly-rec­og­nized expert in medi­a­tion and alter­na­tive dis­pute res­o­lu­tion, and a pre­sen­ta­tion by Dr. Cheryl Heal­ton, Dean and Pro­fes­sor of the School of Glob­al Pub­lic Health and the Direc­tor of the Glob­al Insti­tute of Pub­lic Health at NYU.

Tobac­co Mas­ter Set­tle­ment Agreement

Pan­elists

Michael Her­ing — Direc­tor and Chief Coun­sel, Nation­al Asso­ci­a­tion of Attor­neys Gen­er­al (NAAG) Cen­ter for Tobac­co and Pub­lic Health

Michael Her­ing was appoint­ed NAAG tobac­co chief coun­sel in April 2013 after work­ing for six years as NAAG deputy chief coun­sel of Mas­ter Set­tle­ment Agree­ment (MSA) pay­ments. Pri­or to join­ing NAAG, Mr. Her­ing served as an assis­tant attor­ney gen­er­al in the Con­sumer Pro­tec­tion and Antitrust divi­sion of the Mass­a­chu­setts Attor­ney General’s Office, where he worked on a num­ber of ini­tia­tives relat­ing to tobac­co, includ­ing the action that ulti­mate­ly result­ed in the MSA.

Joelle M. Lester — Direc­tor of Tobac­co Con­trol, Pub­lic Health Law Cen­ter, Mitchell Ham­line School of Law

Joelle M. Lester, co-author of Chap­ter 3: A Com­plex Achieve­ment: The Tobac­co Mas­ter Set­tle­ment Agree­ment,” directs the Pub­lic Health Law Cen­ter’s com­mer­cial tobac­co con­trol pro­gram, sup­port­ing tobac­co con­trol pol­i­cy change through­out the Unit­ed States. The Cen­ter seeks to improve health and advance health equi­ty through the pow­er of law and policy.

Mark Green­wold — Senior Con­sul­tant, Cam­paign for Tobac­co-Free Kids

Mark Green­wold worked as Senior Con­sul­tant to the Cam­paign for Tobac­co-Free Kids with regard to fed­er­al and state reg­u­la­tion of tobac­co prod­ucts and lit­i­ga­tion con­cern­ing the reg­u­la­tion of tobac­co prod­ucts. Pre­vi­ous­ly, Mr. Green­wold served as the first Chief Coun­sel for Tobac­co for NAAG, where he was respon­si­ble for coor­di­nat­ing the activ­i­ties of all the states under the Tobac­co MSA of 1998 and enforc­ing the agreement.


Pan­el Summary

The first pan­el of the Health & Envi­ron­men­tal Set­tle­ments Project’s work­shop dis­cussed the Tobac­co MSA of 1998. The MSA resolved claims that states brought against major tobac­co man­u­fac­tures for the adver­tis­ing, mar­ket­ing, and pro­mot­ing of cigarettes.

Michael Her­ing, draw­ing from his expe­ri­ence lead­ing the Cen­ter for Tobac­co and Pub­lic Health at NAAG, pro­vid­ed an overview of the major aspects of the MSA. As a result of the set­tle­ment agree­ment, tobac­co com­pa­nies must make pay­ments to states in per­pe­tu­ity on an annu­al basis, cur­rent­ly amount­ing to approx­i­mate­ly $7 bil­lion a year; fol­low mar­ket­ing and adver­tis­ing restric­tions; and fund an anti-tobac­co orga­ni­za­tion (the Truth Ini­tia­tive). As part of the agree­ment, the tobac­co man­u­fac­tur­ers received releas­es for claims brought by the states.

Joelle M. Lester spoke about how the MSA fits in with oth­er lit­i­ga­tion against the tobac­co indus­try and focused on how the release of tobac­co indus­try doc­u­ments under the terms of the set­tle­ment has led to fur­ther tobac­co indus­try restric­tions. The released doc­u­ments showed that the tobac­co indus­try was aware of the adverse health impacts of smok­ing while, at the same time, tes­ti­fy­ing to Con­gress that there was no link between smok­ing and lung can­cer. Doc­u­ments also showed how the industry’s adver­tis­ing strat­e­gy tar­get­ed spe­cif­ic groups. The doc­u­ment repos­i­to­ry estab­lished under the set­tle­ment helped inform fol­low-up state and fed­er­al gov­ern­ment reg­u­la­tion of the indus­try, and lit­i­ga­tion that smok­ers brought against the industry.

Mark Green­wold dis­cussed how the pri­ma­ry goal of the state-ini­ti­at­ed lit­i­ga­tion and set­tle­ment was to address a pub­lic health epi­dem­ic, and not to com­pen­sate states (or indi­vid­u­als) for health-relat­ed dam­ages. More specif­i­cal­ly, the MSA sought to sharply reduce youth smok­ing rates by plac­ing adver­tis­ing and mar­ket­ing restric­tions on tobac­co com­pa­nies, espe­cial­ly relat­ed to mar­ket­ing to chil­dren. These restric­tions could not have been achieved through leg­is­la­tion due to First Amend­ment issues.

The MSA has suc­cess­ful­ly reduced youth smok­ing rates, but oth­er aspects of the set­tle­ment have been dis­ap­point­ing, includ­ing: the diver­sion of tobac­co pay­ments to states to pro­grams unre­lat­ed to tobac­co pre­ven­tion; unfore­seen secu­ri­ti­za­tion of pay­ments to states; the fail­ure to include Amer­i­can Indi­an and Alas­ka Native tribes in the set­tle­ment; and the cre­ation of a per­verse incen­tive for states to pro­tect the mar­ket share of the tobac­co com­pa­nies, so as to con­tin­ue the flow of pay­ments from com­pa­nies to states.

The pan­el con­clud­ed its dis­cus­sion by answer­ing ques­tions from work­shop participants.

The Gulf Oil Spill Settlement

Pan­elists

Bri­an Israel — Part­ner, Arnold & Porter

Bri­an Israel is chair of Arnold & Porter’s Envi­ron­men­tal prac­tice group. Mr. Israel is lead coun­sel to BP in rela­tion to the Deep­wa­ter Hori­zon nat­ur­al resource dam­ages (NRD) claim, and also he was one of the tri­al attor­neys at the Deep­wa­ter Hori­zon Clean Water Act (CWA) penal­ty trial.

John C. Cruden — Prin­ci­pal, Bev­eridge & Dia­mond PC

John C. Cruden is a prin­ci­pal at the envi­ron­men­tal law firm Bev­eridge & Dia­mond PC. Mr. Cruden led the Envi­ron­ment and Nat­ur­al Resources Divi­sion (ENRD) of the U.S. Depart­ment of Jus­tice (DOJ) dur­ing the set­tle­ment of claims stem­ming from the Gulf of Mex­i­co (Gulf) oil spill. 

Bil­ly Plauché — Part­ner, Plauché & Carr LLP

Bil­ly Plauché rep­re­sent­ed the states in the lit­i­ga­tion fol­low­ing the Deep­wa­ter Hori­zon dis­as­ter in the Gulf. Mr. Plauché pro­vides coun­sel on envi­ron­men­tal and nat­ur­al resource relat­ed issues, includ­ing mat­ters involv­ing the Endan­gered Species Act, the CWA, the Nation­al Envi­ron­men­tal Pol­i­cy Act, NRD actions and wet­lands regulations.


Pan­el Summary

The sec­ond pan­el of the Health & Envi­ron­men­tal Set­tle­ments Project’s work­shop dis­cussed the set­tle­ment of lit­i­ga­tion relat­ed to the BP Deep­wa­ter Hori­zon oil spill in the Gulf in April 2010.

Bri­an Israel, draw­ing upon his expe­ri­ence rep­re­sent­ing BP, pro­vid­ed an overview of the largest envi­ron­men­tal set­tle­ment in U.S. legal his­to­ry. The res­o­lu­tion of the lit­i­ga­tion includ­ed a ground­break­ing ear­ly restora­tion frame­work between the fed­er­al and state gov­ern­ments and BP; a crim­i­nal plea agree­ment; a con­sent decree that resolved CWA and Oil Pol­lu­tion Act (OPA) claims; and the the Resources and Ecosys­tems Sus­tain­abil­i­ty, Tourist Oppor­tu­ni­ties, and Revive Economies of the Gulf Coast States (RESTORE) Act.

John C. Cruden shared the lessons learned from his expe­ri­ence in lead­ing ENRD dur­ing the set­tle­ment. Crit­i­cal parts of the set­tle­ment process includ­ed man­ag­ing intra- and inter-par­ty rela­tion­ships and devel­op­ing a process to move from con­cep­tion to specifics in reach­ing a set­tle­ment with all par­ties. The set­tle­ment has suc­ceed­ed because it was struc­tured to avoid BP’s bank­rupt­cy; estab­lished a gov­er­nance struc­ture for the spend­ing of set­tle­ment funds; and set aside funds to address unan­tic­i­pat­ed harms.

Bil­ly Plauché, who rep­re­sent­ed the states, said that it was crit­i­cal to remove the lit­i­ga­tors from the nego­ti­a­tion room in order to reach a set­tle­ment and that engaged neu­tral par­ties helped facil­i­tate a set­tle­ment. Addi­tion­al­ly, the ear­ly restora­tion frame­work helped struc­ture the terms of the final settlement.

The pan­el con­clud­ed its dis­cus­sion by answer­ing ques­tions from work­shop participants.

The Super­fund Leg­isla­tive Settlement

Pan­elists

Bar­ry Breen — Prin­ci­pal Deputy Assis­tant Admin­is­tra­tor, U.S. Envi­ron­men­tal Pro­tec­tion Agency Office of Land and Emer­gency Management

Bar­ry Breen is the Prin­ci­pal Deputy Assis­tant Admin­is­tra­tor of the Envi­ron­men­tal Pro­tec­tion Agency’s (EPA) Office of Land and Emer­gency Man­age­ment (OLEM). In that capac­i­ty, Mr. Breen works on the EPA’s Com­pre­hen­sive Envi­ron­men­tal Response, Com­pen­sa­tion, and Lia­bil­i­ty Act (CER­CLA), or Super­fund, and fed­er­al facil­i­ties cleanup and rede­vel­op­ment programs.

Nan­cy Fire­stone — Judge, U.S. Court of Fed­er­al Claims

The Hon. Nan­cy Fire­stone was appoint­ed to the Unit­ed States Court of Fed­er­al Claims on Octo­ber 22, 1998. Judge Fire­stone for­mer­ly worked at EPA and DOJ dur­ing the pas­sage and imple­men­ta­tion of Superfund.

David Far­er — Part­ner, Green­baum, Rowe, Smith & Davis LLP

David Far­er is Co-Chair of the Envi­ron­men­tal Depart­ment at Green­baum, Rowe, Smith & Davis LLP. A nation­al­ly-renowned envi­ron­men­tal lawyer, Mr. Far­er pre­vi­ous­ly chaired the Envi­ron­men­tal & Brown­fields prac­tice group at Far­er Fer­sko, where he estab­lished that firm’s envi­ron­men­tal prac­tice in 1984.


Pan­el Summary

The third pan­el of the Health & Envi­ron­men­tal Set­tle­ments Project’s work­shop focused on the Super­fund leg­isla­tive set­tle­ment that requires respon­si­ble par­ties to finance the cleanup of indus­tri­al sites con­t­a­m­i­nat­ed with haz­ardous substances.

Bar­ry Breen dis­cussed the law’s lia­bil­i­ty régime (strict, joint and sev­er­al, and retroac­tive); the statute’s broad pool of poten­tial­ly respon­si­ble par­ties (PRPs); the law’s cov­er­age of cleanup and cleanup-asso­ci­at­ed costs; and Superfund’s encour­age­ment of ear­ly set­tle­ments. Mr. Breen’s slides are avail­able here.

The Hon­or­able Nan­cy Fire­stone dis­cussed her role in rep­re­sent­ing DOJ in nego­ti­a­tions over Super­fund reau­tho­riza­tion in the mid-1980s and the key role that pub­lic con­cern regard­ing haz­ardous waste pol­lu­tion had in push­ing Con­gress to enact the pro­gram. Judge Fire­stone not­ed that a tra­di­tion­al lia­bil­i­ty régime could not have effi­cient­ly (or at all) ensured that con­t­a­m­i­nat­ed sites would be cleaned up. By estab­lish­ing cleanup lia­bil­i­ty across a broad spec­trum of liable par­ties, the statute’s lia­bil­i­ty régime incen­tivized set­tle­ments, lead­ing to the cleanup of more than 1,000 con­t­a­m­i­nat­ed sites. Judge Fire­stone also point­ed to the Nation­al Child­hood Vac­cine Injury Act’s lia­bil­i­ty, cau­sa­tion, and com­pen­sa­tion regimes — the sub­ject of Chap­ter 4—as a poten­tial leg­isla­tive mod­el for resolv­ing claims relat­ed to the opi­oid epidemic.

David Far­er pro­vid­ed the state per­spec­tive, dis­cussing state lead­er­ship in iden­ti­fy­ing cleanup issues and estab­lish­ing state-based cleanup require­ments. He not­ed that the Super­fund law’s lia­bil­i­ty pro­vi­sions trig­gered com­plex allo­ca­tion nego­ti­a­tions and lit­i­ga­tion, lead­ing to high trans­ac­tion costs.

The pan­el con­clud­ed its dis­cus­sion by answer­ing ques­tions from work­shop participants.

The Volk­swa­gen Emis­sions Settlement

Pan­elists

Seema Kakade — Pro­fes­sor, Uni­ver­si­ty of Mary­land Fran­cis King Carey School of Law

Seema Kakade joined the Uni­ver­si­ty of Mary­land Fran­cis King Carey School of Law as an Assis­tant Pro­fes­sor and Direc­tor of the Envi­ron­men­tal Law Clin­ic in July 2017. Pri­or to join­ing the law school, Pro­fes­sor Kakade served as a fed­er­al gov­ern­ment attor­ney, includ­ing work­ing on the Volk­swa­gen (VW) set­tle­ment in EPA’s Office of Civ­il Enforce­ment in the Office of Enforce­ment and Com­pli­ance Assurance.

John C. Cruden — Prin­ci­pal, Bev­eridge & Dia­mond PC

John C. Cruden, co-author of Chap­ter 8: The Volk­swa­gen Diesel­gate’ Clean Air Act Set­tle­ment,” is a prin­ci­pal at the envi­ron­men­tal law firm Bev­eridge & Dia­mond PC. Mr. Cruden led the fed­er­al government’s work on the VW mat­ter as head of ENRD.

David Nach­man — Coun­sel for Opi­oids and Impact Lit­i­ga­tion, New York Office of the Attor­ney General

David Nach­man cur­rent­ly serves as Coun­sel for Opi­oids and Impact Lit­i­ga­tion for New York Attor­ney Gen­er­al Leti­tia James. As Senior Enforce­ment Coun­sel in the New York Office of the Attor­ney Gen­er­al, Mr. Nach­man was respon­si­ble for the Office’s pros­e­cu­tion of the envi­ron­men­tal and con­sumer pro­tec­tion case against VW in the defeat device mat­ter, includ­ing New York’s coor­di­na­tion of the mul­ti­state inves­ti­ga­tion into VW’s con­duct lead­ing to state court set­tle­ments around the country.


Pan­el Summary

The fourth and final pan­el of the Health & Envi­ron­men­tal Set­tle­ments Project’s work­shop exam­ined the con­sent decrees that resolved claims that emanat­ed from VW Diesel­gate” scan­dal, which involved the instal­la­tion of emis­sions test­ing defeat devices in diesel-pow­ered vehi­cles sold in the Unit­ed States.

Seema Kakade dis­cussed VW’s admis­sion of the use of pro­hib­it­ed defeat devices that emit­ted excess nitro­gen oxide (NOx) in vio­la­tion of the Clean Air Act and the injunc­tive relief pro­vid­ed and civ­il penal­ties paid by VW under a trio of con­sent decrees with EPA and DOJ. Ms. Kakade’s pre­sen­ta­tion fur­ther focused on the buy­back, lease ter­mi­na­tion, emis­sions mod­i­fi­ca­tion (i.e., fix­ing offend­ing vehi­cles) and envi­ron­men­tal harm mit­i­ga­tion (e.g., zero emis­sion vehi­cle invest­ment require­ment and NOx mit­i­ga­tion trust) pro­vi­sions of one of the con­sent decrees. Ms. Kakade’s slides are avail­able here.

John C. Cruden dis­cussed the fed­er­al government’s work on the VW mat­ter and applied the lessons learned from his expe­ri­ence with the Gulf oil spill set­tle­ment to the VW con­sent decrees. This includ­ed the use of two dif­fer­ent teams of attor­neys to pur­sue lit­i­ga­tion while also pur­su­ing set­tle­ment nego­ti­a­tions with VW; iden­ti­fy­ing the crit­i­cal indi­vid­u­als that would have to be involved in a set­tle­ment; use of finan­cial experts to under­stand VW’s finances in order to avoid bank­rupt­ing VW; and iden­ti­fy­ing the government’s set­tle­ment priorities.

David Nach­man dis­cussed the chal­lenges of equi­tably allo­cat­ing mit­i­ga­tion trust fund monies between the states and the states’ involve­ment in the spe­cial mas­ter-led set­tle­ment nego­ti­a­tions, despite not being a par­ty to the VW mul­ti­dis­trict lit­i­ga­tion. He not­ed that a pub­lic account­ing of past abus­es in a set­tle­ment is an essen­tial part of avoid­ance and deter­rence of future harms, and com­ment­ed that com­bin­ing the roles of set­tle­ment and tri­al coun­sel can lead to a more effec­tive set­tle­ment, in his judgment.

The pan­el con­clud­ed its dis­cus­sion by answer­ing ques­tions from work­shop participants.

The work­shop also fea­tured keynote remarks by Ken­neth Fein­berg, a nation­al­ly-rec­og­nized expert in medi­a­tion and alter­na­tive dis­pute res­o­lu­tion, and a pre­sen­ta­tion by Dr. Cheryl Heal­ton, Dean and Direc­tor of the NYU Col­lege of Glob­al Pub­lic Health.

Keynote Speak­er: Ken­neth Feinberg

Ken­neth Fein­berg is one of the nation’s lead­ing experts in alter­na­tive dis­pute res­o­lu­tion, hav­ing served as Spe­cial Mas­ter of the 911 Vic­tim Com­pen­sa­tion Fund, the Jus­tice Depart­men­t’s Vic­tims of State-Spon­sored Ter­ror­ism Fund, and the Trea­sury Depart­men­t’s TARP Exec­u­tive Com­pen­sa­tion Pro­gram. He has been appoint­ed medi­a­tor and arbi­tra­tor in thou­sands of com­plex dis­putes over the past 35 years. In 2010, Mr. Fein­berg was appoint­ed by the Oba­ma Admin­is­tra­tion to over­see com­pen­sa­tion of vic­tims of the BP oil spill in the Gulf of Mex­i­co. Mr. Fein­berg is cur­rent­ly the court-appoint­ed Set­tle­ment Mas­ter in the Fiat/​Chrysler Diesel Emis­sions class action lit­i­ga­tion in San Francisco.

David J. Hayes, Exec­u­tive Direc­tor of the State Impact Cen­ter, and Richard L. Revesz, Lawrence King Pro­fes­sor of Law and Dean Emer­i­tus of NYU School of Law, intro­duced Mr. Fein­berg as the keynote speak­er for the work­shop. Draw­ing from a 35-year career focused on set­tling and oper­at­ing com­pen­sa­tion funds, Mr. Fein­berg pre­sent­ed a dozen crit­i­cal ques­tions for work­shop par­tic­i­pants to con­sid­er in for­mu­lat­ing and man­ag­ing settlements. 

Mr. Fein­berg split the key aspects of set­tle­ments into two parts. The first includ­ed the struc­ture of the set­tle­ment itself (court-spon­sored v. pri­vate; insur­ance and gov­ern­ment involve­ment; claim aggre­ga­tion; latent claim ques­tions; and tim­ing and avail­able resources), while the sec­ond focused on the sub­stan­tive mat­ters of the set­tle­ment (eli­gi­bil­i­ty; claim cor­rob­o­ra­tion; release; and due process). In dis­cussing each of these set­tle­ment fea­tures, he offered exam­ples of what he has seen work over the course of his career in the field.

Lun­cheon Speak­er: Dr. Cheryl Healton

Dr. Cheryl Heal­ton is the Dean and Direc­tor of the NYU Col­lege of Glob­al Pub­lic Health. Dr. Heal­ton is respon­si­ble for build­ing the College’s aca­d­e­m­ic, ser­vice, and research pro­grams, which focus on domes­tic and inter­na­tion­al health with an empha­sis on pre­ven­tion, sys­tems inter­ven­tion, and inno­va­tion in pub­lic health practice.

Pre­vi­ous­ly, as the found­ing Pres­i­dent and CEO of Lega­cy — a lead­ing orga­ni­za­tion ded­i­cat­ed to tobac­co con­trol — Dr. Heal­ton worked to fur­ther the foundation’s mis­sion: to build a world where young peo­ple reject tobac­co and any­one can quit. Pri­or to Lega­cy, Dr. Heal­ton held numer­ous roles at Colum­bia Uni­ver­si­ty, worked to expand the scope of pub­lic health pro­grams, and under­took inno­v­a­tive edu­ca­tion­al ini­tia­tives to advance pub­lic health practice.

Dr. Heal­ton drew on her back­ground with the Lega­cy Foun­da­tion and the tobac­co set­tle­ment to dis­cuss the applic­a­bil­i­ty of the Mas­ter Set­tle­ment Agree­ment (MSA) to cur­rent and future pub­lic health chal­lenges. Dr. Heal­ton high­light­ed par­al­lels between the gun indus­try and opi­oid man­u­fac­tur­ers with the tobac­co indus­try and how a set­tle­ment of gun indus­try and opi­oid man­u­fac­tur­er claims could build on the Tobac­co MSA. As in the tobac­co MSA, any future set­tle­ment agree­ment could increase the cost of the detri­men­tal prod­uct, dic­tate how the rel­e­vant indus­try dis­cuss­es their prod­uct, and avoid the short­com­ings of the tobac­co MSA by man­dat­ing how pay­ments are spent. Many of the points made dur­ing Dr. Healton’s remarks can be found in Dr. Healton’s arti­cle, The Tobac­co Mas­ter Set­tle­ment Agree­ment — Strate­gic Lessons for Address­ing Pub­lic Health Prob­lems” in The New Eng­land Jour­nal of Med­i­cine.

Dr. Heal­ton’s slides are avail­able here.

Book Release

Look­ing Back to Move For­ward: Resolv­ing Health & Envi­ron­men­tal Crises was released in Novem­ber 2020. The full book is avail­able here.

The book includes eight chap­ters writ­ten by lead­ing legal prac­ti­tion­ers and pol­i­cy experts:

Chap­ter 1

Synthesizing Lessons Learned From Seven Major Crises by David J. Hayes


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.

Sec­tion I: Health Crises

Chap­ter 2

Diethylstilbestrol and the Birth of Market-Share Liability by Logan L. Page

In Chap­ter 2: Diethyl­stilbe­strol and the Birth of Mar­ket-Share Lia­bil­i­ty,” Logan L. Page traces the devel­op­ment of the mar­ket-share lia­bil­i­ty the­o­ry that pro­vid­ed a path­way to recov­ery — one that was blocked under tra­di­tion­al tort law — for the women who suf­fered can­cer from the U.S. Food and Drug Admin­is­tra­tion (FDA) approved diethyl­stilbe­strol (DES) that their moth­ers took dur­ing pregnancy.

Between 1947 and 1971, as many as six mil­lion women were pre­scribed and took DES dur­ing their preg­nan­cies. This drug, which the FDA approved as a mis­car­riage pre­ven­ta­tive, would lat­er be linked to clear-cell ade­no­car­ci­no­ma — a form of vagi­nal can­cer — in their adult chil­dren. Those women, remem­bered today as the DES Daugh­ters, over­came a num­ber of leg­isla­tive and judi­cial obsta­cles to sue the com­pa­nies that man­u­fac­tured DES.

The Cal­i­for­nia Supreme Court pro­vid­ed the DES Daugh­ters with a water­shed vic­to­ry in the 1980 deci­sion, Sin­dell v. Abbott Lab­o­ra­to­ries. That court mint­ed mar­ket-share lia­bil­i­ty, a nov­el the­o­ry of tort cau­sa­tion, which held any man­u­fac­tur­er unable to prove it did not man­u­fac­ture the par­tic­u­lar dose of DES that harmed the plain­tiff liable for the per­cent­age of the judg­ment pro­por­tion­al to its mar­ket share. How­ev­er, some courts sub­se­quent­ly labeled Sin­dell unper­sua­sive and reject­ed the new cau­sa­tion the­o­ry and the DES Daugh­ters’ claims along with it. Oth­er courts qual­i­fied Sin­dell in var­i­ous ways, allow­ing the DES Daugh­ters to recov­er but reach­ing dif­fer­ent con­clu­sions about the most appro­pri­ate appli­ca­tion of tort law to their cas­es. In Hymowitz v. Eli Lil­ly & Co., New York’s high­est court offered the great­est chal­lenge to tra­di­tion­al tort law by allow­ing plain­tiffs to col­lect even from man­u­fac­tur­ers that could prove they had not sup­plied DES to the plaintiff’s mother.

The chap­ter explains this impor­tant legal his­to­ry and explores whether Sin­dell and its prog­e­ny — most notably, Hymowitz—artic­u­lat­ed resilient legal prin­ci­ples that enabled the DES Daugh­ters (and future class­es of sim­i­lar­ly sit­u­at­ed plain­tiffs) to obtain com­pen­sa­tion for the harms they suffered.

About the Author

Logan L. Page is an attor­ney. He grad­u­at­ed from Boston Col­lege with a BA and from Duke Uni­ver­si­ty School of Law with a JD.

Chap­ter 3

A Complex Achievement: the Tobacco Master Settlement Agreement by Joelle M. Lester & Kerry Cork

In Chap­ter 3: A Com­plex Achieve­ment: The Tobac­co Mas­ter Set­tle­ment Agree­ment,” Joelle M. Lester and Ker­ry Cork of the Pub­lic Health Law Cen­ter at the Mitchell Ham­line School of Law, dis­cuss the waves of lit­i­ga­tion led by state attor­neys gen­er­al that cul­mi­nat­ed with the 1998 Tobac­co Mas­ter Set­tle­ment Agree­ment (MSA) and assess its record upon implementation.

It is hard to over­state the his­toric sig­nif­i­cance of the MSA between the major cig­a­rette com­pa­nies and 46 states — the largest legal set­tle­ment ever exe­cut­ed in the Unit­ed States. Fol­low­ing decades of unsuc­cess­ful indi­vid­ual law­suits by injured smok­ers, the MSA and the four indi­vid­ual state tobac­co set­tle­ments that pre­ced­ed it show­cased the role of lit­i­ga­tion as a for­mi­da­ble tool in pub­lic health pol­i­cy and shift­ed the legal focus from the per­son­al respon­si­bil­i­ty of plain­tiffs, who were often smok­ers dying of tobac­co-relat­ed dis­eases, to the cor­po­rate respon­si­bil­i­ty of the tobac­co industry.

The ini­tial goal of the tobac­co lit­i­ga­tion was to recov­er mon­e­tary dam­ages for the states based on the Med­ic­aid health care costs they had incurred in treat­ing sick and dying cig­a­rette smok­ers. As part of the MSA, the tobac­co indus­try agreed to com­pen­sate the set­tling states in per­pe­tu­ity, with annu­al pay­ments ini­tial­ly expect­ed to total $206 bil­lion through 2025. The oth­er lit­i­ga­tion objec­tives were equal­ly as ambi­tious: (1) restrain­ing tobac­co com­pa­ny mar­ket­ing and adver­tis­ing to pre­vent appeals to youth; (2) end­ing the industry’s false and decep­tive denials of sci­ence; and (3) fund­ing pub­lic health pol­i­cy efforts to help cur­rent smok­ers quit and pre­vent under­age smoking.

To this end, the indus­try agreed to sev­er­al con­ces­sions, includ­ing restric­tions on adver­tis­ing, spon­sor­ship, lob­by­ing, and lit­i­ga­tion activ­i­ties — par­tic­u­lar­ly those tar­get­ing youth. The restric­tions includ­ed the cre­ation of a char­i­ta­ble foun­da­tion to reduce teen smok­ing, the dis­band­ing of three tobac­co indus­try orga­ni­za­tions, and pub­lic access to dam­ag­ing inter­nal doc­u­ments demon­strat­ing the extent to which the indus­try had mis­led the pub­lic about tobacco’s health harms. By many mea­sures, the tobac­co set­tle­ment agree­ment was a suc­cess. Yet some in the pub­lic health com­mu­ni­ty con­tin­ue to view the MSA’s long-term impact on pub­lic health pol­i­cy and the land­scape of tobac­co con­trol as a dis­ap­point­ment due in large part to state leg­is­la­tures’ diver­sion of MSA funds to non-tobac­co con­trol and pre­ven­tion programs.

About the Authors

Joelle M. Lester is Direc­tor of Com­mer­cial Tobac­co Con­trol Pro­grams of the Pub­lic Health Law Cen­ter at the Mitchell Ham­line School of Law, sup­port­ing tobac­co con­trol pol­i­cy change through­out the Unit­ed States. In addi­tion, she over­sees efforts to con­vene nation­al thought lead­ers around bold pol­i­cy options to end the tobac­co epi­dem­ic. She par­tic­i­pat­ed in the MSA pan­el at the State Ener­gy & Envi­ron­men­tal Impact Center’s Health & Envi­ron­men­tal Set­tle­ments Projects work­shop in March 2019. She grad­u­at­ed with a BA from the Uni­ver­si­ty of Wis­con­sin and a JD, cum laude, from the Uni­ver­si­ty of Min­neso­ta Law School.

Ker­ry Cork is Senior Staff Attor­ney at the Pub­lic Health Law Cen­ter at the Mitchell Ham­line School of Law, pro­vid­ing legal tech­ni­cal assis­tance on tobac­co and oth­er pub­lic health law issues to pub­lic health pro­fes­sion­als and orga­ni­za­tions, legal pro­fes­sion­als, and advo­cates through­out the Unit­ed States. She also helps over­see the devel­op­ment and dis­sem­i­na­tion of the Pub­lic Health Law Cen­ter’s tobac­co con­trol pub­li­ca­tions. She grad­u­at­ed magna cume laude with a BA from the Uni­ver­si­ty of Min­neso­ta and holds a MA from the Uni­ver­si­ty of Min­neso­ta and a JD from William Mitchell Col­lege of Law.

Chap­ter 4

Response to Vaccine Immunity: The National Childhood Vaccine Injury Act and Its Consequences by Hampden T. Macbeth


In Chap­ter 4: Response to Vac­cine Immu­ni­ty: The Nation­al Child­hood Vac­cine Injury Act and Its Con­se­quences,” Ham­p­den T. Mac­beth, a Staff Attor­ney at the State Ener­gy & Envi­ron­men­tal Impact Cen­ter at the New York Uni­ver­si­ty (NYU) School of Law, exam­ines the forces that led to the adop­tion of the Nation­al Child­hood Vac­cine Injury Act (NCVIA) in 1986/1987 and its mixed legacy. 

All 50 states and the Dis­trict of Colum­bia have long required chil­dren to receive vac­cines for a range of dis­eases to attend pub­lic schools. Child­hood vac­cines have been mas­sive­ly suc­cess­ful: they have reduced tar­get­ed dis­eases by 90 to 100%, pre­vent­ed mil­lions of hos­pi­tal­iza­tions and hun­dreds of thou­sands of deaths, and gen­er­at­ed over one tril­lion dol­lars in eco­nom­ic ben­e­fits. Yet in a small num­ber of cas­es, the appli­ca­tion of child­hood vac­cines has caused last­ing and per­ma­nent phys­i­cal harm, includ­ing enter­ing shock-like states, con­vul­sions, and even death in excep­tion­al cases.

In the 1980s, a vari­ety of fac­tors — greater soci­etal aware­ness of the dan­gers of some child­hood vac­cines, ris­ing lev­els of tort law­suits against man­u­fac­tur­ers of faulty vac­cines, unpre­dictable out­comes for par­ents pur­su­ing vac­cine injury claims on behalf of their chil­dren, and the com­bi­na­tion of ris­ing prices and shrink­ing sup­plies — led to a push for a leg­isla­tive res­o­lu­tion to this vac­cine cri­sis. This is the sto­ry of the stake­hold­ers — par­ents of harmed chil­dren, vac­cine man­u­fac­tur­ers, orga­ni­za­tions of med­ical pro­fes­sion­als, and Con­gress, among oth­ers — that were instru­men­tal over the course of sev­er­al years in the ulti­mate adop­tion of the NCVIA. The NCVIA cre­at­ed an alter­na­tive res­o­lu­tion process that cre­at­ed a path­way for vic­tims to secure com­pen­sa­tion for vac­cine-relat­ed injuries out­side of pur­su­ing tort claims in state courts through a no-fault, Vac­cine Injury Table (VIT) admin­is­tered by spe­cial masters.

The chap­ter also explores the note­wor­thy post-enact­ment tale of the NCVIA. Its imple­men­ta­tion and amend­ment as well as its inter­pre­ta­tion in U.S. Supreme Court deci­sions fol­low­ing its 1986/1987 adop­tion con­tain impor­tant lessons for the design and imple­men­ta­tion of future leg­isla­tive res­o­lu­tions to pub­lic health and envi­ron­men­tal chal­lenges. Most notably, the NCVIA suc­ceed­ed in achiev­ing its goal of reduc­ing vac­cine man­u­fac­tur­ers’ expo­sure to tort law­suits. The NCVIA’s alter­na­tive res­o­lu­tion process was also designed with suf­fi­cient flex­i­bil­i­ty that it has been able to han­dle and respond to events unfore­seen by its stake­hold­ers. For exam­ple, the vac­cine against diph­the­ria, tetanus, and per­tus­sis (DTP), the third shot of which caused gen­er­al­ized seizures, encephalopa­thy, and dimin­ished intel­lec­tu­al capac­i­ty, is no longer used in this coun­try, and the NCVIA now com­pen­sates adults (not just chil­dren) injured by the sea­son­al influen­za vac­cine. The alter­na­tive res­o­lu­tion process was also able to han­dle a tidal wave of sci­en­tif­i­cal­ly unsub­stan­ti­at­ed claims that the measles, mumps, and rubel­la (MMR) vac­cine and thimeros­al (a vac­cine preser­v­a­tive) caused autism.

But this process is not with­out flaws, as the NCVIA has not worked as Con­gress intend­ed. Rep­re­sent­ed by Depart­ment of Jus­tice attor­neys, the Depart­ment of Health and Human Ser­vices (HHS) has aggres­sive­ly con­test­ed peti­tions for com­pen­sa­tion, great­ly slow­ing the pro­cess­ing of com­pen­sa­tion claims. Fur­ther, HHS ini­ti­at­ed a series of changes to the VIT that great­ly reduced vic­tims’ chances for recov­er­ing for their injuries, often leav­ing vic­tims uncom­pen­sat­ed. Final­ly, observers do not cred­it the NCVIA for mate­ri­al­ly improv­ing the devel­op­ment of safe and afford­able vaccines.

About the Author

Ham­p­den T. Mac­beth is a Staff Attor­ney at the State Ener­gy & Envi­ron­men­tal Impact Cen­ter at NYU School of Law. He grad­u­at­ed cum laude from Occi­den­tal Col­lege with a BA in Diplo­ma­cy and World Affairs and received his JD from George­town Uni­ver­si­ty Law Cen­ter, where he was man­ag­ing edi­tor of the George­town Envi­ron­men­tal Law Review and grad­u­at­ed cum laude.

Chap­ter 5

Courts as Policymakers: The Uneven Justice of Asbestos Mass Tort Litigation by Sandra Nichols Thiam, Carol Adaire Jones, Cynthia R. Harris, & Samuel F. Koenig

In Chap­ter 5: Courts as Pol­i­cy­mak­ers: The Uneven Jus­tice of Asbestos Mass Tort Lit­i­ga­tion,” San­dra Nichols Thi­am, Car­ol Adaire Jones, Cyn­thia R. Har­ris, and Samuel F. Koenig of the Envi­ron­men­tal Law Insti­tute, track the sto­ry of the U.S. legal system’s strug­gle to com­pen­sate vic­tims of asbestos expo­sure and offer lessons that can be gleaned from the expe­ri­ence for future efforts to resolve major health and envi­ron­men­tal challenges. 

Asbestos, known as the mag­ic min­er­al in ancient times, with­stands fire, cor­ro­sion, and acid, and its mal­leabil­i­ty makes it pos­si­ble to incor­po­rate it in a wide vari­ety of prod­ucts. With the goal of improv­ing prod­uct safe­ty, it has been used to fire­proof and insu­late build­ings, vehi­cles and ships, water pipes, paper, gar­den prod­ucts, pro­tec­tive cloth­ing, and even children’s toys. But the safe­ty ben­e­fits have come with harm­ful effects. 

There has been long-term, wide­spread expo­sure to asbestos for over 100 years. Hun­dreds of thou­sands of peo­ple have been dis­abled and died — a lega­cy that con­tin­ues to grow today. Nei­ther the work­ers’ com­pen­sa­tion sys­tem nor the tort sys­tem has been able to meet the chal­lenge of com­pen­sat­ing the vic­tims of the asbestos cri­sis fair­ly and effi­cient­ly. And Con­gress has not stepped in to pro­vide a leg­isla­tive solution.

The chap­ter iden­ti­fies suc­cess­es and fail­ures in the strate­gies for com­pen­sa­tion and con­sid­ers what the asbestos sto­ry shows us about the role of the courts when oth­er branch­es of gov­ern­ment do not respond to a pub­lic crisis.

About the Authors

San­dra Nichols Thi­am is Asso­ciate Vice Pres­i­dent for Research & Pol­i­cy at the Envi­ron­men­tal Law Insti­tute. She grad­u­at­ed with a BA in earth and envi­ron­men­tal sci­ences from Wes­leyan Uni­ver­si­ty and has a JD from the Uni­ver­si­ty of Virginia.

Car­ol Adaire Jones is a Vis­it­ing Schol­ar at the Envi­ron­men­tal Law Insti­tute. Before join­ing the Envi­ron­men­tal Law Insti­tute, she had a 30-year career as an envi­ron­men­tal econ­o­mist in both gov­ern­ment and acad­e­mia. She received her BA from the Uni­ver­si­ty of Penn­syl­va­nia, her MSc. from the Lon­don School of Eco­nom­ics, and her Ph.D. in eco­nom­ics from Har­vard University.

Cyn­thia R. Har­ris is a Staff Attor­ney at the Envi­ron­men­tal Law Insti­tute. She grad­u­at­ed cum laude with a BA in Com­mu­ni­ca­tion from the Uni­ver­si­ty of Cal­i­for­nia, San Diego and holds a JD from the New York Uni­ver­si­ty School of Law, where she served on the New York Uni­ver­si­ty Law Review.

Samuel F. Koenig is a Research Asso­ciate at the Envi­ron­men­tal Law Insti­tute. He grad­u­at­ed with a BA in Envi­ron­men­tal and Urban Stud­ies from the Uni­ver­si­ty of Chicago.

Sec­tion II: Envi­ron­men­tal Crises

Chap­ter 6

Superfund at 40: Unfulfilled Expectations by Katherine N. Probst

In Chap­ter 6: Super­fund at 40: Unful­filled Expec­ta­tions,” Kather­ine N. Prob­st writes about the 1980 enact­ment of the Com­pre­hen­sive Envi­ron­men­tal Response, Com­pen­sa­tion, and Lia­bil­i­ty Act (CER­CLA), bet­ter known as Super­fund;” the statute’s major amend­ments in 1986; and the imple­men­ta­tion and admin­is­tra­tion of Super­fund over the last 40 years by the U.S. Envi­ron­men­tal Pro­tec­tion Agency (EPA). The chap­ter includes a wealth of data on pro­gram fund­ing and accomplishments.

CER­CLA was a direct response to the prob­lems at the Love Canal site in upstate New York and grow­ing aware­ness among Mem­bers of Con­gress, EPA, and the White House that there were in fact many such sites across the coun­try. In the late 1970s, local res­i­dents at Love Canal, hor­ri­fied by the thick black sub­stances ooz­ing into their base­ments and con­cerned about pos­si­ble health effects, sought help from state and local health offi­cials. State and local agen­cies did not have the resources to clean up the con­t­a­m­i­na­tion, nor did the fed­er­al government.

Super­fund filled a major gap in the nation’s envi­ron­men­tal laws by pro­vid­ing fund­ing and author­i­ty for the EPA to respond to releas­es of haz­ardous sub­stances at sites across the coun­try and by cre­at­ing a far-reach­ing lia­bil­i­ty sys­tem mak­ing site own­ers and oper­a­tors as well as those who dis­posed of tox­ic chem­i­cals at a site respon­si­ble for pay­ing for cleanup, even if their actions had been legal at the time. Con­gress also cre­at­ed a trust fund, stocked by tax­es on oil and chem­i­cal feed­stocks, to pay for cleanup when those respon­si­ble could not, or would not, do so themselves.

While many sites have been addressed under Super­fund, much work remains to be done. The pro­gram is under­fund­ed, cleanups are tak­ing too long to com­plete, and there are hun­dreds of sites that cur­rent­ly present risks to human health. While the under­ly­ing statute pro­vides pow­er­ful tools to address con­t­a­m­i­nat­ed sites across the coun­try, the law is only as good as its imple­men­ta­tion. Pro­gram suc­cess depends on ade­quate fund­ing, effec­tive pro­gram man­age­ment, and strong enforce­ment. The cur­rent lev­el of annu­al appro­pri­a­tions, pace of cleanup, and the num­ber of Nation­al Pri­or­i­ties List (NPL) sites where there are cur­rent risks to pub­lic health all raise con­cerns about whether the pro­gram is meet­ing its intend­ed goals.

About the Author

Kather­ine N. Prob­st is an inde­pen­dent con­sul­tant who has writ­ten wide­ly about the Super­fund pro­gram. She spent much of her career as a Senior Fel­low at Resources for the Future in Wash­ing­ton, D.C. and has pro­vid­ed expert tes­ti­mo­ny about the Super­fund pro­gram at a num­ber of con­gres­sion­al hear­ings. She has a BA from Wes­leyan Uni­ver­si­ty and a MA in City and Region­al Plan­ning from Har­vard University. 

Chap­ter 7

Deepwater Horizon by Elizabeth Klein

In Chap­ter 7: Deep­wa­ter Hori­zon,” Eliz­a­beth Klein, at the time Deputy Direc­tor of the State Ener­gy & Envi­ron­men­tal Impact Cen­ter at the New York Uni­ver­si­ty (NYU) School of Law, focus­es on the forces and con­sid­er­a­tions that shaped the $20 bil­lion civ­il set­tle­ment among BP, the fed­er­al gov­ern­ment, Gulf of Mex­i­co (Gulf) states, and local gov­ern­ments fol­low­ing the explo­sion of BP’s Deep­wa­ter Hori­zon drilling rig in the Gulf in April 2010.

Fol­low­ing the dis­as­ter, thou­sands of cas­es asso­ci­at­ed with the Deep­wa­ter Hori­zon have been filed. Plain­tiffs have includ­ed the fed­er­al gov­ern­ment, the Gulf states impact­ed by the oil spill, fam­i­lies of the indi­vid­u­als who lost their lives, envi­ron­men­tal orga­ni­za­tions, and busi­ness­es and indi­vid­u­als whose eco­nom­ic liveli­hoods were shat­tered by both the spill’s imme­di­ate impact as well as the longer-term neg­a­tive effects on indus­tries such as tourism. With the oil spill extend­ing over more than 43,000 square miles, the dis­as­ter dam­aged and tem­porar­i­ly closed fish­eries; oiled beach­es, marsh­es, and wet­lands; and killed scores of birds and marine wildlife all along the shores of five Gulf states — Texas, Louisiana, Mis­sis­sip­pi, Alaba­ma, and Florida.

Mul­ti­ple fed­er­al and state agen­cies respond­ed to both the imme­di­ate after­math of the explo­sion and the cleanup of the oil spill, and they con­tin­ued to be involved in the exten­sive civ­il and crim­i­nal lit­i­ga­tion that fol­lowed. Ulti­mate­ly, BP — the com­pa­ny held most liable for the explo­sion and spill — would enter into (1) the largest civ­il penal­ty set­tle­ment agree­ment ever reached with the U.S. Depart­ment of Jus­tice (DOJ); (2) the largest crim­i­nal penal­ty set­tle­ment with DOJ; and (3) set­tle­ments of class action law­suits filed on behalf of the thou­sands of cleanup work­ers and coastal zone res­i­dents who were injured either phys­i­cal­ly or eco­nom­i­cal­ly as a result of the disaster.

The chap­ter focus­es on the $20 bil­lion civ­il set­tle­ment agree­ment among BP, the fed­er­al gov­ern­ment, Gulf states, and local com­mu­ni­ties. That agree­ment includes funds allo­cat­ed for resti­tu­tion of the nat­ur­al resource dam­ages caused by the spill pur­suant to the Oil Pol­lu­tion Act of 1990, as well as funds allo­cat­ed by the Resources and Ecosys­tems Sus­tain­abil­i­ty, Tourist Oppor­tu­ni­ties, and Revive Economies of the Gulf Coast States Act (RESTORE Act) — a bill enact­ed in the wake of the dis­as­ter to ded­i­cate admin­is­tra­tive and civ­il penal­ties to both nat­ur­al resource restora­tion and eco­nom­ic development.

About the Author

Eliz­a­beth Klein is Deputy Direc­tor of the State Ener­gy & Envi­ron­men­tal Impact Cen­ter at the NYU School of Law. She was Asso­ciate Deputy Sec­re­tary at the U.S. Depart­ment of the Inte­ri­or (DOI) from 2010 to 2017. She grad­u­at­ed sum­ma cum laude with a degree in eco­nom­ics from the George Wash­ing­ton Uni­ver­si­ty and received her JD from Amer­i­can University’s Wash­ing­ton Col­lege of Law, where she was pres­i­dent of the Envi­ron­men­tal Law Soci­ety and senior arti­cles edi­tor of the Sus­tain­able Devel­op­ment Law & Pol­i­cy jour­nal, grad­u­at­ing sum­ma cum laude and Order of the Coif.

Chap­ter 8

The Volkswagen “Dieselgate” Clean Air Act Settlement by John C. Cruden & Joshua H. Van Eaton

In Chap­ter 8: The Volk­swa­gen Diesel­gate’ Clean Air Act Set­tle­ment,” John C. Cruden and Joshua H. Van Eaton of Bev­eridge & Dia­mond PC, explore the rapid­ly secured con­sent decrees between the fed­er­al gov­ern­ment and Volk­swa­gen (VW) for its Diesel­gate” emis­sions cheat­ing scan­dal and the suc­cess­ful imple­men­ta­tion of the settlement.

VW’s Clean Air Act (CAA) vio­la­tion involved the use of defeat devices” that allowed test­ed engines to reduce emis­sions while being test­ed and then emit up to 40 times the law­ful lim­it while in use. After an inves­ti­ga­tion involv­ing both the U.S. Envi­ron­men­tal Pro­tec­tion Agency (EPA) and the Cal­i­for­nia Air Resources Board, EPA issued a Notice of Vio­la­tion on Sep­tem­ber 18, 2015, and the U.S. Depart­ment of Jus­tice (DOJ) filed a fed­er­al com­plaint against VW in ear­ly Jan­u­ary 2016. The fed­er­al enforce­ment case was ulti­mate­ly con­sol­i­dat­ed with pri­vate actions in mul­ti­dis­trict lit­i­ga­tion before Judge Charles R. Brey­er in San Fran­cis­co. Judge Brey­er soon appoint­ed for­mer Fed­er­al Bureau of Inves­ti­ga­tion Direc­tor Robert S. Mueller III as Set­tle­ment Mas­ter to man­age the settlement.

Ulti­mate­ly, Judge Brey­er and Set­tle­ment Mas­ter Mueller would over­see lit­i­ga­tion activ­i­ties and rounds of nego­ti­a­tion between the Unit­ed States and oth­er reg­u­la­tors and VW that would lead to the com­ple­tion of the three con­sent decrees to resolve civ­il claims and crim­i­nal com­plaints stem­ming from VW’s fraud­u­lent behav­ior. The court and Set­tle­ment Mas­ter also helped resolve a class action law­suit against VW brought by pri­vate con­sumers. The val­ue of the three DOJ-secured con­sent decrees exceed­ed $20 bil­lion — most of it obtained in the civ­il com­plaints the Unit­ed States filed against the automak­er (which are the focus of the chap­ter) — and col­lec­tive­ly, the set­tle­ments, are the largest in the his­to­ry of U.S. CAA enforce­ment. On the crim­i­nal side, VW pled guilty to three felonies, and six high-rank­ing VW offi­cials were also indict­ed. The class action set­tle­ments also pro­vid­ed bil­lions of dol­lars in relief.

This chap­ter exam­ines the events lead­ing to the set­tle­ments as well as the set­tle­ments them­selves and then reflects on prac­tices that might guide the res­o­lu­tion of oth­er future mass envi­ron­men­tal and health crises.

About the Authors

John C. Cruden is a prin­ci­pal at the envi­ron­men­tal law firm Bev­eridge & Dia­mond PC. He was the Assis­tant Attor­ney Gen­er­al for the Envi­ron­ment and Nat­ur­al Resources Divi­sion (ENRD) of DOJ from 2015 to 2017. Along with his co-author, Joshua H. Van Eaton, he led the nego­ti­a­tion dis­cus­sions on behalf of the Unit­ed States, which result­ed in the series of con­sent decrees with VW that are dis­cussed in the chap­ter. He par­tic­i­pat­ed in the pan­el dis­cus­sion on the VW emis­sions set­tle­ment at the State Ener­gy & Envi­ron­men­tal Impact Center’s Health & Envi­ron­men­tal Set­tle­ments Projects work­shop in March 2019. He has a BS from the Unit­ed States Mil­i­tary Acad­e­my; a JD from San­ta Clara Uni­ver­si­ty, sum­ma cum laude; and MA in For­eign Affairs from the Uni­ver­si­ty of Virginia.

Joshua H. Van Eaton is a prin­ci­pal at the envi­ron­men­tal law firm Bev­eridge & Dia­mond PC. He was a Senior Tri­al Attor­ney in ENRD. Along with his co-author, John C. Cruden, he led the nego­ti­a­tion dis­cus­sions on behalf of the Unit­ed States, which result­ed in the series of con­sent decrees with VW that are dis­cussed in the chap­ter. He has a BA in Busi­ness Admin­is­tra­tion from Seat­tle Pacif­ic Uni­ver­si­ty and a JD from Bay­lor University.

Praise for Looking Back to Move Forward: Resolving Health & Environmental Crises

Look­ing Back to Move For­ward: Resolv­ing Health & Envi­ron­men­tal Crises offers a time­ly mas­ter class on the strate­gies and tools used by advo­cates, judges, leg­is­la­tors, and pol­i­cy­mak­ers to resolve some of the most high-pro­file — and vex­ing — health and envi­ron­men­tal chal­lenges of our time, from tobac­co expo­sure to VW’s diesel decep­tion. Packed with detail, Look­ing Back dis­tills key guid­ing prin­ci­ples, replic­a­ble mod­els and pit­falls to avoid. As we con­tin­ue to con­front com­plex crises, like the exis­ten­tial threat of cli­mate change and the epi­dem­ic of opi­oid addic­tion — both fueled by cor­po­rate decep­tion and denial — we can draw on these crisply ren­dered lessons learned to pro­tect the health of our com­mu­ni­ties and envi­ron­ment and hold account­able those who vio­late the law.” 

– Mass­a­chu­setts Attor­ney Gen­er­al Mau­ra Healey

Sweep­ing in scope yet exquis­ite in detail, Look­ing Back to Move For­wardchron­i­cles the most seri­ous health and envi­ron­men­tal crises of the past cen­tu­ry. By tal­ly­ing what our courts and pol­i­cy­mak­ers got wrong and right, the vol­ume is an essen­tial resource for those con­fronting today’s chal­lenges — and those who will address calami­ties to come.”

– Pro­fes­sor Nora Free­man Engstrom, Stan­ford Law School

When the health and envi­ron­men­tal threats of the 21st cen­tu­ry feel unsur­mount­able, this book reminds us that our judi­cial sys­tem can help meet enor­mous chal­lenges, as pros­e­cu­tors and lawyers showed with tobac­co. By focus­ing on past approach­es to major set­tle­ments, the State Impact Cen­ter illus­trates how the law helps con­front press­ing issues, like cli­mate change, when oth­er branch­es are cap­tive to indus­try influence.”

– U.S. Sen­a­tor Shel­don White­house (Rhode Island)

Essen­tial read­ing in under­stand­ing the pol­i­cy impli­ca­tions of health and envi­ron­men­tal tragedies. A cogent study of when our courts work effec­tive­ly — and when they don’t. What are the com­pet­ing alter­na­tives? You’ll find the answers here.” 

– Ken­neth R. Fein­berg, Admin­is­tra­tor of the Sep­tem­ber 11th Vic­tim Com­pen­sa­tion Fund & the BP Deep­wa­ter Hori­zon Oil Spill Fund

Health and envi­ron­men­tal dis­as­ters test our resolve as a soci­ety to achieve jus­tice. The State Ener­gy & Envi­ron­men­tal Impact Cen­ter has put togeth­er an extra­or­di­nary col­lec­tion of clear, well-writ­ten essays address­ing how past health and envi­ron­men­tal dis­as­ters have been han­dled, empha­siz­ing the lessons learned from lawyers, courts, and pol­i­cy mak­ers that will aid in respond­ing to future dis­as­ters. This book deliv­ers pow­er­ful and insight­ful infor­ma­tion that goes beyond the typ­i­cal super­fi­cial treat­ment of man­ag­ing the con­se­quences of a nat­ur­al disaster.”

– Allen Kan­ner, Kan­ner & White­ly L.L.C., Lead Coun­sel for the State of Louisiana in the Deep­wa­ter Hori­zon Oil Spill Litigation

Contributing Authors

The fol­low­ing authors con­tributed to Look­ing Back to Move For­ward: Resolv­ing Health & Envi­ron­men­tal Crises:

Ker­ry Cork, Senior Staff Attor­ney, Pub­lic Health Law Cen­ter, Mitchell Ham­line School of Law

John C. Cruden, Prin­ci­pal, Bev­eridge & Dia­mond PC

Cyn­thia R. Har­ris, Staff Attor­ney, Envi­ron­men­tal Law Institute

David J. Hayes, Exec­u­tive Direc­tor, State Ener­gy & Envi­ron­men­tal Impact Cen­ter, New York Uni­ver­si­ty School of Law

Car­ol Adaire Jones, Vis­it­ing Schol­ar, Envi­ron­men­tal Law Institute

Eliz­a­beth Klein, Deputy Direc­tor, State Ener­gy & Envi­ron­men­tal Impact Cen­ter, New York Uni­ver­si­ty School of Law

Samuel F. Koenig, Research Asso­ciate, Envi­ron­men­tal Law Institute

Joelle M. Lester, Direc­tor of Com­mer­cial Tobac­co Con­trol Pro­grams, Pub­lic Health Law Cen­ter, Mitchell Ham­line School of Law

Ham­p­den T. Mac­beth, Staff Attor­ney, State Ener­gy & Envi­ron­men­tal Impact Cen­ter, New York Uni­ver­si­ty School of Law

Logan L. Page, Attor­ney

Kather­ine N. Prob­st, Inde­pen­dent Consultant

San­dra Nichols Thi­am, Asso­ciate Vice Pres­i­dent, Envi­ron­men­tal Law Institute

Joshua H. Van Eaton, Prin­ci­pal, Bev­eridge & Dia­mond PC