Synthesizing Lessons Learned From Seven Major Crises

• Author: David J. Hayes
• Pages: 1-16

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.