The David v. Goliath History of Our Civil Justice System Against Toxic Waste and Environmental Harm

Last week while discussing our civil justice system, I talked about corporate pollution. I said that corporations have consistently responded to the environmental disasters they have caused by passing the buck for as long as possible. They know the initial outrage will dim, media coverage will diminish, and political administrations will change. Full accountability for their harm cannot be obtained by government agencies. The job is too large since our agencies are underfunded and understaffed. Yet, more accountability is exacted from these corporations than one would expect. The force behind that comes from the private sector.

Into the void that existed in the government's ability in the 1960s to enforce environmental laws to keep our air, water, and lands safe from toxins came unexpected allies, the workers in the American civil justice system. They were the attorneys who advocated for clean air, clean water, and monetary punishment for those who endangered our lives by creating environmental mayhem. With them, but in different roles, were the judges and juries who sat on the groundbreaking cases.

In 1965, private attorneys took on one of the huge energy company, Consolidated Edison, to stop construction of a power generator at Storm King Mountain in New York. Con Ed planned to cut away part of the mountain and turn the nearby forest into a reservoir. The case forced Con Ed to abandon the project. The mountain still stands. This landmark case, which bolstered the government's ability to take environmental and esthetic concerns into consideration when granting permits to corporations, signaled that the civil justice system would become a critical vehicle for progress in environmental issues. Another illustration is worth giving.

In the 1940s and 50s, Hooker Chemical & Plastic Corporation dumped twenty thousand tons of hazardous chemical waste in the abandoned canal that was the centerpiece of the Love Canal neighborhood of Niagara Falls. It later covered the dump with dirt and sold the property to the school board for one dollar. During the next decades, the chemicals leached out of the drums and into the surrounding soil. In the 1970s, the EPA learned of the problem. An EPA administrator reported, "Trees and gardens were turning black and dying. The air had a choking smell. Children returned from play with burns on their hands and faces. And then there were the birth defects."

Attorneys representing those citizens forced the corporation to pay restitution, and, eventually, nearly a thousand families were evacuated to safe areas. The national outrage sparked by this case in our civil justice system paved the way for the liability act known as Superfund. It empowers federal agencies to hold polluters accountable for their damages and compel cleanup. Our civil justice system worked there, it worked to require cleanup in the Exxon Valdez spill, and the threat of litigation in it spurred BP to clean up our beaches.

Our civil justice system is David. Corporate America is Goliath. Mark another point for David. History has repeated itself.

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