Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘environment’

Of lawyers and GloFish™

Explaining that “tropical aquarium fish are not used for food purposes” and “pose no threat to the food supply,” the US Food and Drug Administration opted not to regulate GloFish™, ornamental fish that have been genetically modified to glow in the dark. (Don Thompson, “FDA won’t bar first biotech pet from the market,” Associated Press, Dec. 9 (via whittierdailynews.com); Shannon Colavecchio-Van Sickler, “Want aquarium flair? GloFish,” St. Petersburg Times Online, Dec. 27 (via www.poynter.org),”FDA statement regarding Glofish,” Dec. 9).

Unhappy with this decision, the Washington, D.C.-based Center for Food Safety promptly announced plans to file a lawsuit against the FDA to force it to exercise its alleged regulatory authority over household pets. “It’s a precedent and it’s one that we want to stop,” a Center spokesman explained, in a remarkable slippery slope argument to support the proposed lawsuit. “Having the Glo-Fish™ out on the market ushers in a new era where we are going to have untested, unregulated, genetically engineered animals as fads, as pets, as food supply. And I don’t think anyone should go down that road.” (“GLO-FISH,” KTVI Fox2 News).

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Erin Brockovich watch

Erin Brockovich’s law firm has filed its third lawsuit against Beverly Hills, its school district and several oil and gas companies, claiming that emissions from an oil derrick on the Beverly Hills High School campus caused former students and others to develop high rates of cancer – or at least put them at greater risk of developing the disease. (“Brockovich Files Third Lawsuit in Cancer Case,” L.A. Times, Jan. 3; Associated Press, “Brockovich Firm Against Sues Beverly Hills,” lasvegassun.com, Jan. 3 ). City officials have disputed the claims.

The latest lawsuit filed in California state court lists nearly 300 plaintiffs, “a number” of which claim that they “do not have cancer but are at greater risk of developing the disease.” Earlier posts on the media-savvy paralegal’s environmental lawsuits can be found on Nov. 19, July 15, and elsewhere in this space.

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Mold repercussions

A Massachusetts woman has won over $500,000 because of a mold infestation of her $75,000 condo. (Thomas Grillo, “After 8 years, a milestone in battle over mold”, Boston Globe, Nov. 25). After thousands of years of humanity coexisting relatively peacefully with mold, how unfortunate must we be to live in the twenty-first century, when plaintiffs’ lawyers have discovered the terrible health effects! The Globe, while paying lip service to a quote that there’s no scientific evidence of generalized health problems from mold, then proceeds to identify stachybotrys as “toxic mold,” and uncritically repeats a claim (rejected by a court that otherwise awarded millions in the same case) that such mold has caused brain damage. The UPI does better, even noting that the wide array of health claims made with respect to mold suggest that there isn’t one cause for all of these problems. (K. L. Capozza, “Mold: Unsightly but not deadly”, Sep. 2).

But who has an economic incentive to point out that bleach is the solution to mold when compared to the money that can be made by positing the opposite hypothesis? (Highlight of this site: claiming that a brochure asking if “toxic black mold” is the “Millennium’s Silent Killer” is “NOT intended to scare you“.)

According to an economist quoted in the Boston Globe story, fear of mold litigation has caused insurance companies, when confronted with a potential claim, to immediately move a family into a hotel and perform testing. Unsurprisingly, the resulting payouts and expenses are causing costs to rise for construction and homeowners’ insurance. (Mark Hornbeck et al., “Sting of high insurance spurs probe”, Detroit News, Dec. 3; Scott Wyland, “Insurance premiums hammer construction”, The Olympian, Nov. 23). More: May 26, 2004.

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MTBE liability and the energy bill

Although there are plenty of outrages in the energy bill, argues Gregg Easterbrook at his New Republic weblog, one provision that is not outrageous is the waiver exempting oil companies from liability for using the gasoline additive MTBE (methyl tertiary-butyl ether) (Nov. 24). “Democrats are expressing outrage over the MTBE waiver because some enviro fundraisers see this chemical as the next one to get people really frightened over, while the tort bar has visions of big settlements dancing in its head.” But Congress mandated the use of MTBE in its 1991 Clean Air Amendments, Easterbrook says, and it is strange to punish petrochemical companies for complying with the wishes of both Republican and Democratic environmental officials. Coverage: H. Josef Hebert, “GOP lawmakers blame suits over gas additive for bill’s delay”, AP/Cleveland Plain Dealer, Nov. 24; Michael Davis, “Energy measure hinges on MTBE dispute”, Houston Chronicle, Nov. 21; “Congress Debates Gasoline Additive Liability”, AP/Fox News, Oct. 7. And this morning it is being reported that the energy bill has died for this year in the Senate, in part because of irreconcilable disputes over the MTBE waivers (Dan Morgan, “Senate Energy Bill Dead for This Year”, Washington Post, Nov. 25)

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Subsidized brush-fire insurance

“Should the state and federal government encourage Californians to build houses in high-risk brush-fire zones? The brain says ‘no,’ but the policy means ‘yes.'” Matt Welch at Reason (Oct. 22; see our Oct. 31 post) further investigates the so-called FAIR insurance program, which (among its other flaws) tends to redistribute wealth to the residents of affluent Malibu and Topanga Canyon. Glenn Reynolds comments (Nov. 6).

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Calif. inferno: gotta follow those regs

“The first helicopter pilot to see the patch of flames that would become the catastrophic Cedar Fire radioed for aerial water drops, but state firefighters rejected his request because it came minutes after such flights had been grounded for the night. Within hours, the flames cascaded out of control and killed 13 residents between the mountains east of San Diego and the city. It eventually became the largest wildfire in California history. …

“The problem was that under state safety guidelines, no flights can go up into waning daylight. On Saturday, the cutoff was 5:36 p.m., said California Department of Forestry Capt. Ron Serabia, who coordinates the 12 tankers and 10 helicopters now battling the 272,000-acre blaze. The sun set that day at 6:05 p.m.” (Justin Pritchard, “State firefighters rejected air drop request for Cedar Fire because of night regulations”, San Francisco Chronicle, Oct. 30). (Via Arthur Silber). More: Matt Welch at Reason “Hit and Run” (Oct. 31) has a roundup of other instances in which bad policy decisions may have worsened damage from the wildfires: “near the top of my list is the 1968 state law that specifically orders insurance companies to pool together and offer homeowner policies to people who live in high-risk brush fire zones, a non-market last resort enjoyed by 20,000 people, most of whom live in the foothills of Southern California.” Yet more: Gregg Easterbrook (Oct. 31) on forest management and wildlands.

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Overcriminalized.com

Not related to this website despite its name, Overcriminalized.com is a new site from the Heritage Foundation “devoted to challenging and ultimately reversing the harmful trend by government to criminalize more and more ordinary activities.” Among the case histories presented: Palo Alto v. Leibrand, in which a 61-year-old homeowner was fingerprinted and booked (complete with mug shot) on charges of letting the street-side xylosma bushes near her bungalow grow more than two feet high (her site); and cases of alleged federal overzealousness in enforcing the False Claims Act (U.S. v. Krizek, alleged overbilling by psychotherapist); and environmental law (Hansen v. U.S., manager of bankrupt chemical plant sentenced to 46 months despite critics’ questions as to both mens rea and his practical capability to rectify the various violations). For a sampling of similar themes aired on this site, see Aug. 6 (drowsy driving), Jul. 22 (corporation’s vicarious criminal liability for acts of employees and agents), Jul. 14 (U.K. seaweed-picking); May 14 (sexual harassment); Aug. 3-5, 2001 (cloned human cells); Dec. 8-10, 2000 (gun sale); Oct. 20-22, 2000 (product liability); May 18-21, 2000 (public morality laws) and Dec. 20 and Aug. 2, 1999 (injury to animals). Plus: Tim Sandefur (Oct. 28) has more, including pointers to an earlier Heritage memo on the subject (Paul Rosenzweig, “The Over-Criminalization of Social and Economic Conduct”, Apr. 17) and commentaries by Tyler Cowen (Oct. 21) and himself (Oct. 16).

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$1.3 billion oyster damage

A Louisiana state appellate court, by a 3-2 vote, has upheld an award of $1.3 billion–more than $21 thousand an acre–to 130 oyster farmers who leased land from the state. The award, supposed damages for a state environmental project meant to save Louisiana’s disappearing coast, is worth more than the entire haul of oysters from Louisiana over the last century and is twice the cost of the Caernarvon Freshwater Diversion Project in question. As if to demonstrate that this case is nothing more than a wealth transfer to enrich lawyers over taxpayers, one of the plaintiffs did not purchase his lease until the day the lawsuit was filed, and thus could not possibly have suffered damages, since nobody made him purchase the lease. The appeals court actually increased his award.

The state plans to take further appeals; the Secretary of the state Department of Natural Resources says the ruling left him “shocked.” “‘There’s no way in the world that any one acre of oysters can be worth $21,000,’ Jack Caldwell said. ‘Particularly when there’s no evidence that these leases had any oysters on them or even any oyster reefs.'” Oyster leases in Louisiana typically go for about $200/acre; the leases from the state are for $2/acre/year. Moreover, many of the leases in question had a clause indemnifying the state that the trial and appeals courts refused to rule upon. And in a final irony, when the project was first proposed in the 1980s, oyster farmers supported it as a means of restoring changing salinity levels that were destroying the industry. The state passed a constitutional amendment to limit the awards, but the constitutionality of its retroactivity provisions is obviously questionable. (Jeffrey Meitrodt, “Oyster Damages Upheld”, New Orleans Times-Picayune, Oct. 16; AP, “Appeals court: $1.3 billion is reasonable claim for oyster farmers”, Oct. 16; Jeffrey Meitrodt, “Election didn’t put to rest all coastal liability”, New Orleans Times-Picayune, Oct. 13; “Oystermen offer suit settlement”, AP, Aug. 10; Jeffrey Meitrodt, “Oyster farmers originally backed project”, New Orleans Times-Picayune, May 4; “The Avenal Lawsuits”, Louisiana Coastal Law, Oct. 2000 at pp. 4-5; “Naked Ownership” blog entry with many other links, May 4; related story on this site, Mar. 25-26, 2002). A lawsuit against the United States on identical grounds was thrown out of federal courts in 1995 and upheld on appeal in Avenal v. United States, 100 F.3d 933 (Fed. Cir. 1996). Update Oct. 24, 2004: La. Supreme Court throws out cases.

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Scarborough unfair

Did you know that MSNBC talk host and former Republican Congressman Joe Scarborough is an attorney with Pensacola, Fla.’s Levin Papantonio, one of the nation’s premier mass tort firms, which has its fingers in everything from asbestos, breast implants and prescription drugs to aviation accidents to tobacco to Wall Street to environmentalist assaults on factory farming? Or that Scarborough continues on the firm’s payroll despite his on-air fame? We didn’t. Now Scarborough has gotten in a bit of trouble by inviting name partner Mike Papantonio to come on the show and attack “a wood-preserving company called Osmose, saying it makes a dangerous product used in playground equipment and has ‘figured out how to poison our children and make a profit in the meantime.'” — all without mentioning that Papantonio is his law partner and that his/their firm happens to be suing Osmose. (Howard Kurtz, “MSNBC Host Gets Bitten by His ‘Rat of the Week'”, Washington Post, Sept. 13; Doug Haller, “Joe-TV”, Pensacola News Journal, Sept. 14). Radley Balko and Arthur Silber comment. (Update Jan. 3: Scarborough ceases taking stipends from law firm).

How dangerous is “pressure-treated” (chemically preserved) wood, anyway? Once you get past the scare-headlines about arsenic on the playground, the National Law Journal noted in March that trial lawyers suing makers of the wood have enjoyed very limited success, one reason being that there is no particular illness that predictably results from routine exposure to chromated copper arsenate (CCA). Take care not to inhale gusts of sawdust or fumes from burning wood, and it seems you’re unlikely to have anything to worry about (David Hechler, “The Poisoned Wood Mystery”, National Law Journal, Mar. 20)

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