Synthesizing Lessons Learned From Seven Major Crises

AuthorDavid J. Hayes
Chapter 1: Synthesizing Lessons
Learned From Seven Major Crises
David J. Hayes*
I. Introduction
Every decade or two, the United States confronts a serious health or environ-
mental crisis that puts an enormous strain on our lega l system. It was built
to address predictable health and environmental injuries, but can seize up
when health or environmental crises combine legally confounding fact pat-
terns with huge humanitaria n and nancial stakes. Precisely because these
crises present serious societal challenges that aect large slices of America,
however, they must be addressed—and resolved—in a n open, fair, and equi-
table fashion.
is book describes the tools that advocates, judges, legislators, and poli-
cymakers have applied to address a nd resolve—with varying levels of suc-
cess—seven major health and environmental crises of our time. e seven
crises provide a rich source of insights that should inform and gu ide how the
legal system responds to future hea lth and environmental crises—including
crises that already are on our doorstep, such as the opioid and climate crises.
More specically, the following seven chapters explore how the legal sys-
tem has addressed the massive human health harms associated with decades
of exposure to tobacco and asbestos; how it responded when vaccine-related
injuries threatened to undermine the production and distribution of vac-
cines that were saving millions of lives; and how Diethylstilbestrol (DES)
Daughters scattered around the nation were compensated (or not) for injuries
caused by drugs administered during their mothers’ pregnancies.
Also covered are short-fused environmental disa sters, such as BP’s massive
deepwater blowout and oil spill in the Gulf of Mexico (Gulf) a nd Volk-
swagen’s (VW) audacious a ir pollution cheating scheme, both of which
* David J. Hayes is the Executive Director of the State Energy & Environmental Impact Center at the
New York University (NYU) School of Law. He was the Deputy Secretary and Chief Operating Of-
cer 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.
Copyright © 2020 Environmental Law Institute®, Washington, DC.
2 Looking Back to Move Forward: Resolving Health & Environmental Crises
prompted ambitious, judicially approved environmental mitigation eorts.
Finally, Love Canal and the Valley of the Drums exposed the dangers posed
by uncontrolled toxic waste sites, opening the door for the passage of the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA, more commonly known as “Superfund”) and its innovative
cleanup and liability scheme.
Although each of these major events presented unique challenges for
the legal system, when their stories are la id out side by side in this book,
common patterns and themes emerge. I oer below four instructive ta ke-
aways that these historic health a nd environmental controversies provide
litigants, judges, and policymakers who will be confronting similar chal-
lenges in the future.
First, mega settlements are not a necessar y route for resolving major health
and environmental problems. As many of the case stud ies reviewed in the
following chapters conrm, global sett lements of complex, nationally signi-
cant health and environmental crise s require a unique conuence of circum-
stances. Wicked crises are more commonly resolved through individually
important—but not fully dispositive— steps that create momentum and pro-
vide a solid basis for additional progress. at said, boldness is necessary at
every turn; pushing only modest solutions will most likely extend the crisis
rather than solve it.
Second, parties seek ing to resolve massive health and environmental issues
cannot compromise on the basics. e cases explored in this book identify
several boxes that must be checked and worked into any durable solution.
Specically, responsible parties must be held accountable and the oending
conduct stopped, and victims must be compensated and dama ged resources
restored. e boxes do not need to all be checked at once (see the rst point
above), but none of them can be prematurely compromised. For example, let-
ting responsible companies o the hook in return for a limited, government-
provided benet will jeopardize future eorts to achieve an equitable and
eective settlement of the remaining issues.
ird, meaningf ul public participation in the resolution process a nd pub-
lic support for proposed solutions will enhance the prospects of success. is
particularly holds true a round 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 par ties have a “day in
court” that publicly exposes, for the benet of both primar y protagonists and
inuential observers, key lega l and evidentiary strengths and vulnerabilities.
ese case exa mples tell us t hat one-sided resolutions of major societal health
Copyright © 2020 Environmental Law Institute®, Washington, DC.

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