Nature v Chemical Companies — The Legal Battles for our Future
In recent years, chemical companies have increasingly been held accountable by the individuals who have been harmed, but what is still missing is for us all to realise the gravity of these trials, and how we ourselves are involved whether we want to be or not. These are the legal battles for our planet, and the health of ourselves and our children, and it is critical that we learn from them.
With the emergence of chemical companies throughout the last century, we have seen a consistent pattern of these entities damaging our health, regardless of which sector of the economy in which they find their usage. Nonetheless, many of us still fail to grasp the severity of the actions of these companies and the damage of their products. This is not due to a question of complexity in the individual cases, but instead a problem caused by a failure of the institutions said to protect the environment.
The biggest chemical companies originated as creators of weaponry and especially chemical weapons, notably supplying the world wars along with the invasion of Vietnam. As the amount of frontal war decreased, these companies needed to find new demand for their products, and quickly discovered that almost every existing sector of the economy offered prospect for profit. Thus, most of our household items became the products of chemical use, and worst of all has been the use of chemicals in the agricultural sector.
The chemical companies have thus managed to remain a highly influential and profitable element of the economy and have thereby sought to influence both regulators and consumers, through aggressive pr-campaigns combined with infiltrating regulatory agencies.
The most notable example of this is found with Monsanto, the US-based company that transitioned from creating Agent Orange (the chemical used to turn the jungles of Vietnam into wasteland), into creating RoundUp. Since the dawn of the usage of this product, along with other similar chemicals, there has been a steep increase in the rates of cancer and in 2018 we saw the first landmark verdict on this subject.
Johnson v Monsanto
Dewayne Lee Johnson was a groundskeeper for a school in the US, who regularly sprayed the area with RoundUp. He wore a protective suit, yet would occasionally experience direct exposure to the chemical, and throughout his later years of working, he began having extreme rashes which turned out to be an aggressive form of non-Hodgkin’s lymphoma in 2014. Johnson decided to take a stand and sought to bring a lawsuit against Monsanto for failing to warn about their product being cause of cancer.
The first trial, Johnson v Monsanto, was won by Johnson, as it was evidenced that Roundup was the cause of Johnson’s cancer, and furthermore that Monsanto had failed to inform their consumers about the carcinogenic nature of the product. Johnson was awarded 250 million USD in punitive damages and 39,2 million USD in compensatory damages, yet this amount was significantly reduced due to California laws on damages. Thus, an important verdict was made, yet the reduction of the damages still seems deeply problematic. For not only would the original amount have been a sum that Monsanto could easily pay, but the amount of effort it took to even have this trial conducted was immense.
It was up to a private law firm, Baum Hedlund, to represent Johnson, and doing so took considerable commitment of resources. For while one may expect the national environmental protection agencies to regulate these cases, the fact is that they mostly fail to do so. This is due in some part to lack of resources, yet is mostly caused by being so heavily infiltrated by the industry. In many of these cases, individual lawyers and their firms need to commit immense resources, even to the point of taking mortgages on their own houses and risking the survival of the company, in order to contend with these chemical companies, whose legal resources are obviously immense.
This is in itself an hurdle to overcome for anyone who would claim damages, and it is a daunting task which may discourage most individual plaintiffs and even law firms. This speaks to the fortitude of Johnson, who despite waking up in bloody sheets every morning, still fought for both himself and the rest of us.
Since this verdict, Monsanto has been acquired by their German counterpart, Bayer, and sought to appeal the verdict in 2020. Bayer lost the appeal, and thus the precedent set by the case became even stronger. 2 further individual cases have been won since this trial, on similar basis.
The precedent set by this case has since then additionally encouraged tens of thousands of others who have gotten cancer from the chemicals, to step forward and participate in a class-action lawsuit against Bayer (a type of lawsuit were many people combine their case). As of now, more than 40.000 individuals have unresolved claims against Bayer, based on having gotten non-Hodgkin’s lymphoma from RoundUp/glyphosate, and those numbers are likely growing. It should be mentioned that the impact of these chemicals is in no way limited to this specific type of cancer, but that showing the causality between the chemicals through scientific studies to a degree at which the court will accept it, is a slow process.
In recognition of this, Bayer has in the recent months been attempting to address this class-action litigation, by attempting to land a settlement between themselves and every person who has developed non Hodgkin’s lymphoma, which would payout a few billions to the tens of thousands of plaintiffs, but also effectively make it impossible for further/new damages to be claimed.
The settlement which Bayer has been campaigning for, would set up a framework for people who have developed cancer, through which they claim that they will be better able to help those people. This might seem like a good proposal, but the settlement also entails two critical elements: Bayer would be able to continue its sales of RoundUp, and individuals who develop cancer after February 2021 would no longer be able to claim damages for their injury via courts.
This is plainly an attempt to limit the ability of individuals to claim damages, while also enabling the maintenance of a public image that allows for continued sales, as a person who develops NHL after February 2021 would be unable to claim damages. An injured person would thus have to go directly to Bayer and seek compensation at their own discretion, giving them relief from public scrutiny coming from rightfully losing case after case. Furthermore, this program is only set to exist for a small number of years to come.
The proposed settlement was dismissed in the federal court of San Francisco this last May, on grounds that the settlement is an obvious disfavour to consumers.
The chemical companies are involved in every aspect of our lives, from making our commodities to growing our food, and their actions should be cause for reflection for us all. Johnson was one of many, and it is time that we listen to the people who are fighting for us.
Tennant v DuPont
As mentioned earlier, chemicals have become a part of almost all production taking place. Chemical giant “DuPont” has for decades been the creator of the famous Teflon (coating for pans and other objects), but in the last 2 decades, its fame has slowly shifted its focus onto the actions of this company.
The case itself is extensive, but fortunately a feature film has been made which can give comprehensive understanding of the case (Dark Waters, 2019) along with extensive reporting from a variety of publishers.
When a farmer, Wilbur Tennant, discovered that his cows were being poisoned from water from the local lake, he suspected that the cause of the poisoning was the DuPont plant close by. He contacted lawyer Rob Bilott, who decided to take on the case, despite considerable person sacrifice and inconvenience. Through years of effort they managed to show that the main chemical compound of the products, C8, was causing cancer in the population. This was proven in a court-mandated epidemiological study, taking more than 4 years and involving more than sixty-thousand local residents, showing that several thousand had already developed cancer.
Both Wilbur Tennant and his wife also developed Cancer, and Wilbur died before being able to seeing the success of his case, in 2009.
As disturbing as it was to establish this causality, it was perhaps more disturbing to realise that DuPont knew about it all along. Their internal documents revealed a number of internal cases and studies of C8 and its effect on both their own employees and on rats. In both cases, the causality between C8 and cancer was clear, yet a decision was made to conceal the effects of the chemical as revealing it would “essentially put the long term viability of this product segment on the line”.
Even after this study was concluded, DuPont attempted to run from their agreement, to take responsibility if causality was found, and refused to accept a settlement. They tried to force every single plaintiff, meaning every sick individual to claim damages, and simply fight each one in court. An attempt to induce a sense of futility and make people give up. Nonetheless, Bilott didn’t give up, and after winning three individual cases, and claiming increasing sums of money, DuPont finally settled more than 3500 cases for the sum of 670,7 million USD.
A revelatory part of this case is the fact that for most of its lifetime, C8 was regulated by DuPont themselves. The Environmental Protection Agency did not hold any safety standards, which is a general problem for the agency due to the enormous number of chemical in use, and relied on the information provided by DuPont, which claimed that C8 had a safety limit in water of 1 part per billion. After studies found even higher values in the water of major US cities, DuPont influenced regulators to adopt safety standards of 150 parts per billion, just in time for litigation.
They went against their own safety-studies in order to escape liability.
C8, a perfluorooctanoic acid, has by the researching scientist been deemed a “forever chemical”, as it appears our bodies are incapable of breaking down and cleansing itself of this substance. It is estimated to be in the bloodstream of 99% of all humans on the planet. As mentioned, C8 has been unregulated for most of its existence, and this is also the case for hundreds of other chemicals estimated to have similarly dangerous effects. In fact, ever since the settlement, and likely before, DuPont has sought to develop “new” chemicals which turned out to be essentially the same as C8, but with minor modifications. A move which can only reasonably be attributed to an attempt at avoiding both regulation and litigation.
Power of Choice
These two cases are hugely important victories, yet they by no means account for the full picture as numerous cases are either dismissed or lack the funds to proceed. A combination of extreme dedication and fortitude on the side of plaintiffs and lawyers have brought these verdicts about, yet winning in court is only part of the victory. Reportedly, it was a central wish of Dewayne “Lee” Johnson that his case became an impetus for others to realise the full severity of the situation, and this is exactly what needs to happen if change is to occur. The same is true of Tennant, who stopped at nothing to reveal the truth.
Bayer, Monsanto, DuPont, and every other chemical company have built their business because allowed them to. We gave them our money, while they told us we were buying safe products. They are not evil forces, and are probably filled with many scientists who honestly believe their work is beneficial, some of who have even become advocates for the same perspective as in this article. It is the executive personnel at the top of these entities who have made the decisions to deceive us, to hide information, and to influence the regulatory agencies, and they should be held accountable.
But we can’t wait for that to happen.
As mentioned, after losing one battle, DuPont began creating and using a compound only slightly different, which despite probably being as harmful as C8, will for the time being be available for consumption and RoundUp is still being used throughout the world. Thus, if we don’t change our behaviour, the legal battles will have been largely futile. We will have chosen to side with the industry destroying our health, instead of taking personal responsibility and choosing differently.
There is no valid excuse for inaction. We owe it to ourselves and our children to take responsibility and choose, in any way possible, to put our money towards regenerative agriculture and commodities produced in a truly sustainable manner. The fortitude of Johnson, Tennant, and thousands of others have to be honoured, and we do so by choosing to make a change based on what they have revealed through their immense efforts.
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(Excellent for further reading)
Thank you for reading.
