The Health & Environmental Settlements Project
State Impact Center / November 30, 2020
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 book, Looking Back to Move Forward: Resolving Health & Environmental Crises, released in November 2020, which examines how major health and environmental crises have been resolved in the past, and the learnings that we should take away from that history.
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, 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.
Tobacco Master Settlement Agreement
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.
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
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.
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
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.
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 regime (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 regime 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 regime 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
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.
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.
Keynote Address & Presentation
- 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 9/11 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.
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 full book is available here.
The book includes eight chapters written by leading legal practitioners and policy experts.
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
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.
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.
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.
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
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.
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.
The Volkswagen “Dieselgate” Clean Air Act Settlement
by John C. Cruden & Joshua H. Van Eaton
In “Chapter 8: The Volkswagen ‘Dieselgate’ Clean Air iAct 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 the Book
“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
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