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Saying No to Chemical Trespass

March 1, 2011

This blog post, by Rachel Barsky, is the first in a series of guest blog posts from UBC students to be published over the coming month. West Coast Environmental Law is currently hosting UBC students in a clinical Environmental Law Workshop.  Writing a blog post is a required assignment for the students. 


My water bottle is making me paranoid. So are the cans of tuna fish sitting in my pantry, the makeup I applied this morning, my sofa and new television set. I’m surrounded—as we all are—by toxins. These toxins, found in so many household items, the food we eat, even the air we breath; are polluting our bodies every day. They have been linked to neurobehavioural problems such as attention deficit hyperactivity disorder, birth defects, male abnormalities including testicular cancer and impaired sperm quality, breast cancer, early puberty in girls, mercury poisoning, non-Hodgkin’s lymphoma, asthma, immune system suppression, reproductive problems, and so on.

Toxins have been found in virtually all pregnant women, according to a recent report released by the University of California, San Francisco. The chemicals can pass through the placenta and concentrate in the fetus, according to Tracey Woodruff, director of the UCSF Program on Reproductive Health and Environment. Some of the chemicals have been banned since the 1970s. The toxins have also been found in babies’ umbilical cords.

rubber duck.jpgDespite all of the data existing on the harmful effects of toxins, society largely seems to tolerate the fact that the pollutants are so widespread. We seem to accept the toxins as part of our reality; although the toxins are assaulting our bodies like a chemical trespass, we have not fought back in the way that we would if a human assailant attempted to poison us, even though both assaults may kill us. As I will explore throughout this post, it is time for a legal and cultural shift in our way of thinking about toxins. 

Slow Death by Rubber Duck: Introduction to Toxins

            So what are these omnipotent toxins, exactly? As environmentalists Rick Smith and Bruce Lourie explain in their best-selling book Slow Death by Rubber Duck, they include evils such as phthalates, mercury, and polybrominated diphenyl ethers (PBDEs), to name just a few.

Phthalates:

  • Are used to soften plastics and to bind chemicals together.
  • They are everywhere—in perfumes, soaps, shower curtains, IV bags, hockey pucks, balls, children’s toys made of rubbery materials, etc. They creep into meat, dairy, fish, oils and processed foods, as they are fat soluble.
  • Phthalates are endocrine disrupters, associated with disrupting male sexual development. Prenatal exposure is linked to the development of ADHD years later.
  • There is no phthalate regulation in Canada—the protections in products are only set by foreign governments.

Mercury:

  • Exposure to high levels of mercury can cause permanent brain damage, memory loss, heart disease, cancer, etc.
  • Tuna is an obvious culprit but mercury is also used in inconspicuous products such as fluorescent lights, and as an agricultural fungicide.

PBDEs:

  • They are persistent organic pollutants, can also act as endocrine disrupters and “biomagnify” up the food chain.
  • PBDEs are used as flame retardants.
  • They are lurking in items such as polyester sleepwear and the padding of your mattress.
  • Levels of PBDEs are growing exponentially higher, especially in young people, but they have yet to be banned.

For more details on toxins and their effects, check out CNN’s “Toxic America” investigation, Toxipedia, and this report on pesticides by Greenchange.

Even banned chemicals stick around for a long time, and there is no guarantee that whatever the new replacements are will be any better. So what can we do? We can attempt to avoid products—for instance, do not choose plastic bottles with the numbers 3 or 7 on the bottom; avoid fragrant perfumes and deodorants, and stick to cotton materials over polyesters—but these toxins really are everywhere.

Taking legal action to change the future of our environment, and thus our health, instead of mere attempted avoidance, would be a stronger recourse. But is the law really capable of dealing with these widespread toxins? Although much of our exposure comes from products, when it does venture into this area, the law has focused on large-scale industrial polluters, as discussed below.

Legal Action against the Toxins

Taking legal action against pollutants conjures up thoughts of Hollywood movies “Erin Brockovich”, or “A Civil Action,” depicting U.S. class action suits against multinational corporations whose polluting caused cancer to people living or working in the exposed areas. More recent U.S. anti-pollution lawsuits include the Parkersburg case, and a current class action lawsuit brought by at least 31 plaintiffs in McCullom Lake.

Though some anti-pollution class actions have been successful in the States, they are a rarity in Canada, as discussed in a July 8, 2010 Environmental Law Alert blog post by Andrew Gage.

Smith v Inco

Frustratingly, the first ever Canadian class action to decide on damages from pollution, Smith v Inco (2010), did not allow health claims to be brought. The plaintiffs had an increased incidence of lung and sinus cancer over 40% greater than normal rates, but had to abandon their health claims to facilitate the complicated certification process as a class action. They were successful, receiving a $36 million award from Inco Ltd., but they won based for lost property value caused to them by Inco’s operation of a nickel refinery, private nuisance and strict liability (under the Rylands v Fletcher doctrine). This is distressing, as, in my opinion, the health conditions suffered by the plaintiffs are a greater injury than the loss of valuation of their homes. While the monetary loss of their homes’ value is, of course, a harm that needed to be compensated for, the health injuries could kill the plaintiffs; an unforgivable harm.

Causation

The problem that plaintiffs face in bringing health claims through “toxic litigation” is the issue of causation. It is extremely difficult to prove a causal link between a tortfeasor’s pollution and plaintiffs’ injuries.

For example, where 75 people in the same town, working in the same factory, all suffer from the same rare kind of brain cancer, they may be unable to prove through epidemiological studies that the suspect substance was the cause of all their injuries. In Canada, this has not succeeded thus far. In Smith v Inco, the Ontario Superior Court held that the determination of the causal-link between Inco Ltd’s nickel contamination and the alleged health impacts would necessarily require individualized inquiries (which is not possible in a class action), which is why the plaintiffs had to drop their health claims.

A single plaintiff would have a significantly more difficult challenge in proving causation than a large group of people. For instance, what if a plaintiff contracts lung cancer as a result, he argues, of being exposed to asbestos at his workplace 15 years earlier? How can he prove that the asbestos was the cause of his disease, when other pollution could have caused it, such as air pollution, second-hand smoke, genetics or just bad luck?

Where is the law’s protection of personal integrity when it comes to toxic pollutants? Do we have no personal recourse against the chemicals that are making us sick? The law is so careful to protect personal integrity in assault, battery, and even defamation cases, but when it comes to pollutants, it seems that society, including our legal system, is not yet prepared to confront the realities of toxins’ effects.

Toxicogenomics

Perhaps there is hope for personal toxic tort litigation (and class actions) through toxicogenomics. Toxicogenomics—the study of the interaction between genes and toxins—will allow for the development of new screening methods for a number of chemicals at the same time, can provide information about chemicals that cause changes in DNA, and can identify genes making individuals susceptible to environmentally induced diseases, as Jennifer Girod and Andrew R. Klein detail in their report “Personalized Medicine and Toxic Exposure.

Today, write Girod and Klein, MSDS1 testing developed by Dr. Bruce Gillis can determine what chemical (if any) triggered an identical release pattern in a person’s DNA. Gillis says that MSDS1 has been used in more than two dozen workers’ compensation in California, some of which were dropped after the test showed the applicant had not been injured by exposure to the chemical from which he or she was alleging harm, and some which were settled after the claim showed that the applicant was injured by exposure to a chemical present in the workplace.

The information produced by toxicogenomics is currently suggestive, not definitive. One day maybe it will be able to prove that exposure to a specific substance triggered the expression of genes in a plaintiff which then caused that person’s injury, but science is not there yet.

Riparian Rights and Trespass

In the meantime, to get around the problem of causation in toxic tort litigation, plaintiffs could consider invoking a legal principle that evolved in early water pollution cases. In cases regarding the rights of riparian owners to insist upon clean water, the courts have held that proof of actual damage from the water pollution is not necessary.  The riparian owners have a right to the continued flow of water in its natural form past his or her property.

[A Riparian owner] has the right to have [water] come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction. … If a riparian proprietor’s rights have been violated, it is not necessary for him to prove damage to maintain his action. [McKie v. K.V.P. Co. Ltd. [1948] O.R. 396]

Any interference with the quality of water, even if the water was not, or could not be used by the plaintiff was actionable per se. If a plaintiff could not to demonstrate damages arising from pollution in such a case, a court would award only nominal damages, but there would be grounds for an injunction (Gauthier v. Naneff (1971), 14 D.L.R. (3d) 513). Through injunctions, defendants must stop what they have been doing; in the cases of water pollution, a defendant factory owner would have to cease using toxins that are leeching into the water.

The concern of the courts in these cases relates to how to deal with pollutants which by themselves may not cause harm, but which could, in conjunction with future pollutants, jeopardize the quality of the water.  Does our blood deserve less protection than our streams?  The same arguments apply to toxins which find their way into human bodies. 

Multiple Tortfeasors

In relation to the problem of multiple polluters releasing toxins into our environment and not being able to trace an injury to just a single tortfeasor, the riparian rights cases provide valuable precedent. Instead of employing the “but for” test to ask whether, but for the actions of the defendant would the plaintiff have suffered the injury, the courts asked whether, but for the actions of the defendant, would the stream flow in its natural state?

This approach is similar to the torts of trespass or assault, where any interference with one’s right is actionable per se. In trespass, for example, the fact that many people have trespassed individually does not reduce the legal liability of any single trespasser.  Damages, and the possibility of an injunction, exist with the mere act of trespass, even without actual financial loss. 

Trespassers can also be jointly liable for damages, meaning that one trespasser may have to pay for the damages caused by all of them.  This approach has been widely adopted in the U.S. and applied in water and air pollution cases, as well as cases brought in public nuisance actions (not only private nuisance).

We don’t always think about toxins in our bodies being about bodily integrity.  But the law has strong rules to protect the integrity of property, and streams.  Why should laws regarding chemical trespass be weaker? It is time for a legal and cultural shift in our way of thinking about toxins, for our personal integrity—our lives—are at stake. 

RBarsky.jpgBy Rachel Barsky

Rachel Barsky is a second year law student at the University of British Columbia who is currently undertaking a clinical placement at West Coast Environmental Law.  The topic for this blog post, and the link to riparian rights cases, was suggested by Andrew Gage, staff lawyer at West Coast. 

Photo of rubber duck by AllWork, used under Creative Commons License.