Barg Coffin Lewis & Trapp, LLP Articles

June 2006

Brian Haughton, a partner with Barg Coffin Lewis & Trapp, LLP, delivered these remarks at The 18th Symposium in the Groundwater Resources Association of California’s Series on Groundwater Contaminants, “Emerging Contaminants in Groundwater: A Continually Moving Target” in Concord, California on June 7, 2006.

Emerging Contaminants - A Legal Perspective:
Education as a Weapon in Defending Against the War on Science

By Brian Haughton

Good afternoon. Last Friday’s edition of the San Francisco Chronicle published an interesting column by Jon Carroll. For those who didn’t catch it, I’d like to share Mr. Carroll’s opening paragraph:

“I think several things are coming together. The first is the unannounced, perhaps even unacknowledged, war on curiosity. The second is the equally unacknowledged war on risk. The third is pervasive fear, most often described as a fear of terrorists, but really a fear of anything surprising, exotic or hard to understand. Since science demands both curiosity and risk, and since a lot of science is hard to understand (particularly if you did not try to learn about science because it seemed risky and you were not curious), the prevailing cultural trends have combined to form an unannounced but potent war on science.”
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/06/02/DDGS0INI811.DTL

From my perspective, the legal perspective, I see evidence every day that Mr. Carroll is right.

For example, in last Sunday’s Chronicle was an article about Representative Richard Pombo, who chairs the House Resources Committee and often finds himself at odds with people he calls “the enviros.” The article described a Committee hearing on his fisheries bill:

“Pombo … has a flair for the dramatic. At his signal, Resources Committee staffers drop 11 phone-book-size binders on the desk -- all part of one regional fishery council's environmental reviews of the effects of fishing on Steller sea lions in Alaska. Each one lands with a thud. The books, Pombo said, suggest that much of the analysis required under current law is duplicative.”

There is an emotionally appealing syllogism here, but it cannot withstand intellectual scrutiny.

Major premise: any study – or at least any study of the effects of fishing on Steller sea lions – that yields an 11-binder report must contain duplicative analysis.
Minor premise: The fishery council study yielded an 11-binder report.
Conclusion: Ergo, the 11 binders contain duplicative analysis.

It’s the major premise that is problematic. It’s unclear what is meant by “duplicative analysis.” Apparently, Mr. Pombo wants his audience to take it as a pejorative, as if a second opinion were always a waste of resources. Yet, in my experience, people routinely obtain second opinions before making significant decisions ranging from home improvements to open heart surgery. And duplicative analysis – in the sense of analyzing a duplicate sample for QA/QC purposes – is a standard procedure I imagine everyone in this room has followed in performing groundwater investigations.

Maybe “duplicative analysis” was an unfortunate choice of phrase. Maybe what he meant was “more analysis than was warranted under the circumstances.” Was an 11-binder report warranted? I don’t know. I suppose the answer depends on how much one cares about sea lions and how complex the effects of fishing on them are. What I do know is the only evidence we have – the one data point represented by this study report itself – supports the conclusion that 11 binders were warranted. Now, there are plenty of bases to argue that this data point is flawed, but I daresay the authors of the report know more than Mr. Pombo about what it takes to study the effects of fishing on sea lions.

Nevertheless, the dramatic display of the 11 binders was ultimately effective, the fisheries bill was passed by the Committee and, as the Chronicle put it, “Pombo … won another round against the ‘enviros.’”

So why did people readily accept the unsupported conclusion that 11 binders was too much? I think it has something to do with what Jon Carroll was writing about: the “fear of anything surprising, exotic or hard to understand,” and the resulting “war on science.” And nowhere is the war on science more abundantly illustrated than in the discussion of emerging contaminants.

As environmental scientists dealing with emerging contaminants, you are on the front lines of this war. You know better than most the problems un-scientific assertions can cause, and you are well-situated to promote science. But you already knew that. What you may not have focused on, though, is that scientific data and conclusions that are not communicated to – and understood by – others are no better than unscientific assertions. They cannot help people manage risk and benefits. Whether or not a tree falling in a deserted forest makes a sound, if no one’s there, then no one hears it, and no one knows of the tree’s demise.

Much of what environmental lawyers do consists of facilitating communication and understanding about scientific data and conclusions generated by you, the environmental scientists. Many – if not most – of the disputes I handle – whether they relate to emerging contaminants or not – are essentially breakdowns in communication about science. So when I was asked to present a legal perspective on emerging contaminants, it seemed natural to explore what we have done and can do to eliminate some of these breakdowns.

But before launching into that, we should pause for a moment to clarify what we mean when we refer to emerging contaminants. To some extent, it’s like Justice Stewart’s famous definition of obscenity: “I know it when I see it.” So when we look at your Symposium materials and see the litany – NDMA, polycyclic musks, 1,2,3-trichloropropane, PBDEs, and so on – we nod our heads. But what makes them “emerging contaminants”? Let’s look at a few examples.

· TCE might be said to have “re-emerged” in September 2001 when a USEPA draft risk assessment indicated TCE’s potency as a carcinogen was 65 times higher than previously believed. That draft led to a contentious scientific debate that is still going on. The latest news is that a new report from the National Academy of Science is due out this summer, and EPA plans to issue a revised risk assessment based on the NAS report.

· Acrylamide was added to the Proposition 65 list of carcinogens on January 1, 1990, but it didn’t “emerge” as a contaminant until 2002, when we learned that it can be formed by cooking high-carbohydrate-low-protein foods at high temperatures. Promptly after this emergence, the Prop 65 plaintiffs’ bar leapt into action and filed suits against fast food vendors, claiming that french fries and other foods should come with a warning that they contain a carcinogen. The court initially issued a stay pending further study by regulators, but in March of this year, the stay was lifted, and these cases are now going forward.

· Methamphetamine has long been known to be harmful to drug abusers. But only as a result of the relatively recent explosion in meth abuse nationwide, have we come to appreciate the harm to the environment caused by methamphetamine manufacturing. As a result, last year, California enacted AB 1078, requiring DTSC to promulgate uniform regulations for cleanup of properties used as meth labs.

· Phthalates, too, have been the subject of recent legislative attention. Last year, California enacted SB 484, which requires cosmetic manufacturers to report to the Department of Health Services with a list of carcinogens in their products.

· Perfluoro-octanoic Acid (“PFOA” or “C8”) has made headlines recently because EPA found it is persistent in the environment, is appearing at low levels both in the environment and in the blood of the general population, and causes developmental and other problems in lab animals.

· 1,4-dioxane is a solvent stabilizer that has recently “emerged” as a contaminant because advances in detection technology have enhanced our ability to “see” it.

What do all of these emerging contaminants have in common? In each case, the contaminant emerged when something new happened suggesting there may be a human health risk that was previously unknown. The “something new” could be the discovery of a new chemical or a new source of an old chemical. It could be the development of new toxicology, new understandings about transport properties or new detection technology. It could also be the passage of a new law (like California’s cosmetics bill) or the result of a new cultural trend, like the methamphetamine abuse epidemic.

The question presented in each case is: how should we respond to the new development?

Now, this is not the first time GRA has asked me to present a legal perspective on this topic. The last time – at your December 2003 conference on Dioxane – I focused on regulatory responses consisting of the creation of new targets or changing existing targets – cleanup levels, drinking water standards and so on – based on the new development. I discussed how we should decide whether to create or change targets and what the targets should be.

Today, I’d like to focus on educational responses, rather than regulatory responses. Thus, regardless of what the regulatory targets are or should be, how can we help people make informed decisions about risks and benefits associated with emerging contaminants?

But before we address that question, let’s stop and ask why we should care about educational responses and informed decisions. There are many reasons.

First, as we discussed last time, the target-setting process is inherently flawed because of unintended consequences, and education can help correct these flaws. For example, it was undisputed that adding MTBE to gasoline would reduce air pollution from cars. Education about the effects of MTBE leaking from underground storage tanks led to a change of heart about the net benefit of this additive.

Second, the target-setting process cannot account for the subjective diversity in people’s risk tolerance. Where one person might feel comfortable with a 10^-6 carcinogenic risk level, others might prefer 10^-7. Education can enable them to modify their behavior accordingly.

Third, the average person does not understand risk very well. Powerful economic and political forces use fear as a motivator, and fear distorts risk analysis. Most people are undereducated about risk and about how to combat the distorting effects of fear. In a 1927 free speech case called, Whitney v. California, Justice Brandeis famously wrote, “Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.” That function also belongs to education, which is, after all, a form of speech.

I’m sure there are lots more reasons why educational responses to emerging contaminants are valuable, but let’s return now to considering what those educational responses might be.

The law has a long history of experimenting with educational responses to risk, and I’m afraid it’s a checkered history. For example, Court decisions have developed common law rules relating to the duty to warn. Unfortunately, the rules aren’t terribly specific, leaving a person uncertain as to when they might apply. For example, a property seller has a duty to warn the buyer of latent facts about the property that a reasonable buyer would find material. Now, you tell me: is there a duty to warn the buyer that a murder occurred on the property? After the fact, a court said yes. This unpredictability can lead to over-warning, which de-sensitizes people to warnings. If you’ve bought a power tool lately and read all the warnings, you’re more diligent than I am.

Legislatures have also crafted educational responses to risk. Among the earliest statutory approaches were the federal securities acts of 1933 and 1934. Still law today, these acts essentially require that companies issuing stock and selling it to the public must periodically publish certain information relating to the risks and benefits of owning the stock. I’m not a securities lawyer, but my sense is these laws are broadly recognized as having had an overall positive effect on the US, indeed the world economy. In any event, they have become part of the legal landscape, and no one in my memory has ever called for their repeal.

Some 35 years after the securities acts were passed, their successful approach was imported to environmental law with the enactment of the first of the modern federal environmental statutes, the National Environmental Policy Act or NEPA. That law requires the federal government to analyze the environmental impacts of its proposed actions – and their alternatives – before going forward with those actions. There are two chief complaints about NEPA and its California analog, CEQA. First, some complain that they lead to analysis paralysis. Second, many claim these laws are abused by project opponents, who don’t really care about the environmental impacts but want to block the proposed project for other reasons. Notwithstanding those complaints, however, it is now generally accepted that it is a good idea to do at least some analysis of environmental impacts before government takes significant action.

A third way of crafting legal rules to promote educational responses to risk is through the initiative process, and the most well-known example of this approach is California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986. Prop 65 was voted into law with the intent, among other things, of informing people about exposures to chemicals known to cause cancer, birth defects or other reproductive harm.

Here’s what it says at the web-site of the Office of Environmental Health Hazard Assessment (OEHHA), which administers the Prop 65 program:

“Proposition 65 requires businesses to notify Californians about significant amounts of chemicals in the products they purchase, in their homes or workplaces, or that are released into the environment. By providing this information, Proposition 65 enables Californians to make informed decisions about protecting themselves from exposure to these chemicals.”

Sounds like a good idea, generally, but, as is so often the case, the devil is in the details.

For example, OEHHA states that businesses are only required to warn about “significant amounts” of listed chemicals. Unfortunately, what constitutes a “significant amount” is typically either not well defined or defined very conservatively. Also, Prop 65 inverts the typical burden of proof rules and is applied in conjunction with informant-reward and attorneys’ fee statutes to stimulate bounty-hunter enforcement lawsuits. Thus, in the case of carcinogens, the defendant business – rather than a bounty-hunter plaintiff and its lawyers – bears the burden of proof to show that “An exposure for which the [business is] responsible … poses no significant risk assuming lifetime exposure at the level in question.” [HSC §25249.10(c)].

The burden is even greater in the case of reproductive toxins, where the business must show “the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question.” [HSC §25249.10(c)]. Let me tease that out a little. The business must find or perform a study based on specified protocols that identifies the level at which there are no observable reproductive effects. Then, the safe harbor level – that is the threshold for what constitutes a “significant amount” in OEHHA’s words – is set three orders of magnitude lower. Finally, the business must show that the exposure from its product – which itself can be very difficult to quantify – is below the safe harbor level.

It will probably come as no surprise that the uncertainty of the carcinogenic safe harbor and the conservatism of the safe harbor for reproductive toxins lead to over-warning. And over-warning leads to the de-sensitizing problem I mentioned a minute ago. As a topsy-turvy kind of consequence, the Attorney General has taken to intervening in cases and settling with some defendants on terms that require them not to warn. Over-warning can also cause problems by over-sensitizing consumers, as when warnings on nicotine gum – a product designed to help people stop smoking – cause pregnant mothers to keep smoking, increasing the risk of reproductive harm.

Which leads us to the biggest problem with Prop 65: it largely ignores the toxicological ground truth that the poison is in the dose. My favorite example to illustrate this point is zinc. It is a listed hazardous substance that drives cleanup decisions at contaminated sites across the country, while, at the same time, it is listed by the FDA as an essential nutrient in our diet. The difference is in the dose.

How do we solve these problems? More education: of judges, legislators, voters and consumers. It is trite but true to say that we live in the information age. And one of the chief skills necessary to survival in such a time is the ability to sort the informational wheat from the chaff. That ability is not innate. It can only be developed through education. So whether the subject is emerging contaminants or any other potential source of risk, whether the subject arises in a legal, professional or personal context, I challenge everyone in this room – as people who know more about risk than most – to become educators. Together we can and should fight back against what Jon Carroll called the war on science.

Thank you.

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These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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Emerging Contaminants - A Legal Perspective: Education as a Weapon in Defending Against the War on Science

Emerging Contaminants - A Legal Perspective:
Education as a Weapon in Defending Against the War on Science