courts

November 7, 2023

PFAS chemicals found in 71% of tested Wisconsin wells

By Shannon Kelleher

The majority of private wells providing water for 450 Wisconsin homes tested positive for harmful chemicals, though mostly at low levels, according to a new study.

The analysis, published November 2, tested the wells for 44 types of per- and polyfluoroalkyl substances (PFAS). Researchers found that 71% of the wells were contaminated with 4% of the private wells containing PFAS levels that exceeded the Environmental Protection Agency (EPA)’s proposed maximum contaminant levels. Roughly 1% had PFAS levels above the state’s recommended groundwater standards. The researchers said their work is the first to sample shallow groundwater away from known PFAS contamination sites in the state. Examining well water is important because about one quarter of Wisconsin residents get their drinking water from over 800,000 private wells.

“A big takeaway is we found PFAS in the majority of wells, but at very small levels in most of those locations,” said Steven Elmore, program director of the Bureau of Drinking Water and Groundwater at the Wisconsin Department of Natural Resources (DNR). To find it at detectable levels in shallow groundwater is not surprising, he said, noting that PFAS has been found in rainwater across the country and in Lake Michigan and Lake Superior, which flank the state.

The study was a collaboration between the Wisconsin Department of Natural Resources, the University of Wisconsin – Stevens Point, and the Wisconsin State Laboratory of Hygiene through the University of Wisconsin-Madison. It was funded by the US Environmental Protection Agency.

There are over 12,000 types of PFAS, many of which cannot be detected in water using currently available tests. These so-called “forever chemicals” do not break down naturally and can leach into drinking water from industrial sites, sewage treatment plants, landfills, or certain firefighting foams. A 2022 analysis found detectable PFAS levels in about 83% of US waterways. A recent study found that exposure to some PFAS may increase thyroid cancer risk, while past research has linked the chemicals to health problems including kidney cancer, testicular cancer, and ulcerative colitis.

The companies 3M, DuPont, and others agreed to settlements over the summer that will provide communities with billions of dollars to test for PFAS and remove them from drinking water. Last month, three residents of New Milford, Connecticut filed a lawsuit alleging that the Aquarion Water Company provided water to the public that it knew was contaminated with elevated PFAS levels.

November 3, 2023

Battle brewing over proposed US law that would protect pesticides

By Carey Gillam

Cancer patients are celebrating a string of courtroom victories after juries in three US states recently ordered Germany’s Bayer to pay more than $500 million in damages for failing to warn about the health risks of its Roundup herbicides. But the consumer wins come as proposed federal legislation backed by Bayer and the powerful agricultural industry could limit similar cases from ever going to trial in the future.

Dubbed the Agricultural Labeling Uniformity Act, the proposed measure would provide sweeping protections for pesticide companies and their products, preempting local governments from implementing restrictions on pesticide use and blocking many of the legal claims that have been plaguing Bayer, according to the American Association for Justice (AAJ) and other critics.

The measure, which was introduced over the summer, has been gaining traction as a potential amendment to the pending Farm Bill. More than 360 agricultural organizations are throwing their support behind the measure, which was introduced by US Reps Dusty Johnson and Jim Costa. Lobbying disclosure records show that Bayer and the industry-funded CropLife America have made passage a top priority.

The new law is needed because pesticides are “paramount to growing our food and keeping communities safe,” according to CropLife.

In response, on Oct. 27, more than 150 US lawmakers signed a letter to the leadership of the House Committee on Agriculture expressing “strong opposition” to the preemption measures, saying they would overturn “decades of precedent” and have a “significant impact” on public safety.

Local laws that could be in jeopardy include many that restrict pesticide use near schools, parks, and playgrounds, and protect drinking water supplies and wildlife. Preemption of state and local authority would additionally “limit accountability for manufacturers who fail to adequately warn consumers about the hazards posed by certain high-risk pesticides,” the letter warns.

Sen. Cory Booker dubbed the legislation “reckless” and “irresponsible” in a press call on Thursday. “People are making this a priority in the upcoming Farm Bill, and frankly to me it is outrageous,” Booker said.

2023-10 Farm Bureau KSchneider-00455-Edit-2500

November 1, 2023

“What we’re up against” – North Dakota towns fight Farm Bureau to try to keep water clean

By Keith Schneider

DEVILS LAKE, ND – When Clark Steinhaus first heard about a plan to build a feeding operation for 2,499 hogs near the shoreline of North Dakota’s largest natural lake, he was alarmed. As chair of Pelican Township’s board of supervisors, Steinhaus worried the manure generated by so many hogs could easily contaminate area waterways, including 160,000-acre Devils Lake and its 375 miles of shoreline.

His concerns were not surprising given the fact that each year, US industrial-scale feeding facilities – the standard for American meat and dairy production – generate, store, and spread millions of gallons of untreated liquid feces and urine across farmland. Mammoth dairy, hog, poultry, and beef cattle operations are notorious across Corn Belt states for fouling the air with rank odors and contaminating surface and groundwater with toxic nitrates, phosphorus, and bacteria.

“We got documentation from the pig boys’ engineers that said they’re going to build a 12-foot deep pit under the facility – four-inch concrete, no rebar, only wire mesh. No rubber lining,” said Steinhaus. “They were going to store millions of gallons of manure in that pit. Yeah. Water pollution is a concern here.”

The three-member Pelican Township board unanimously rejected the construction permit application in 2019, deciding it did not meet requirements of the applicable zoning ordinance.

The seemingly straight-forward decision on behalf of a tiny township that is home to only 23 residents came back to haunt Steinhaus, miring the township in litigation and dragging it into a sweeping campaign by the American Farm Bureau Federation to upend local zoning rules that aim to curtail industrial-sized animal agriculture across the United States.

The North Dakota Farm Bureau’s lawsuit against Pelican Township was one of three such lawsuits filed in North Dakota, and among many brought across US farm country as the Farm Bureau levers the courts, legislatures and elected leaders to impede regulation of large-scaled animal agriculture and the foul odors and mammoth waste stream that results.

Five years into its livestock expansion campaign, the Farm Bureau is steadily peeling away important state statutes that make this possible.

“Look at what we are up against,” said Steinhaus. “We have 23 residents in Pelican Township – 23 people live here. We were selling tickets to raffle for cash to pay our lawyers.”

September 20, 2023

Postcard from California: State takes on Big Oil for decades of climate lies

By Bill Walker

California fired its opening salvo against the oil and gas industry two years ago, with Gov. Gavin Newsom’s order banning the sale of new gasoline-powered cars and trucks after 2035. In April, the offensive escalated, as the California Air Resources Board (CARB) ordered a phaseout of diesel trucks and locomotives starting in 2036. The state opened another front in June, establishing a watchdog agency to investigate gasoline-pump price spikes and recommend fines for oil companies deemed guilty of gouging customers.

Now the state has dropped its biggest bombshell yet: a monumental lawsuit against five of the world’s largest petrochemical companies for their “decades-long campaign of deception” about the harm of their products to the planet’s climate, and the disastrous and costly impacts of the climate crisis on California.

The 135-page lawsuit, filed last week in San Francisco County Superior Court, alleges that Exxon Mobil, Shell, Chevron, ConocoPhillips and BP (formerly British Petroleum) knew since the 1950s that burning fossil fuels would heat up the climate with devastating consequences, but covered up the truth instead of alerting the public. The suit also names as a defendant the American Petroleum Institute (API), the industry’s trade association. The defendants are accused of fraud, negligence, product liability, false advertising and creating a public nuisance.

“Oil and gas companies have privately known the truth for decades — that the burning of fossil fuels leads to climate change — but have fed us lies and mistruths to further their record-breaking profits at the expense of our environment,” state Attorney General Rob Bonta said in a news release. “From extreme heat to drought and water shortages, the climate crisis they have caused is undeniable. It is time they pay to abate the harm they have caused.”

August 22, 2023

Wisconsin city sues PFAS manufacturers for contaminating water supply

By Grace van Deelen

A Wisconsin city filed a lawsuit on Monday against multiple manufacturers of toxic substances knowns as PFAS, claiming the chemical makers should be responsible for more than $20 million in expected costs to clean up PFAS-contaminated water supplies.

The legal action by the city of Eau Claire, Wisconsin adds to a rapidly expanding mass of US litigation that targets 3M, DuPont and other companies for allegedly knowingly contaminating the environment for decades with harmful per- and polyfluoroalkyl substances (PFAS).

“The PFAS manufacturers, not the public, should be responsible for these costs,” Eau Claire city officials said in a statement. “These companies knew long ago that PFAS chemicals were harmful yet failed to warn the public or remove the product from the market, all the while profiting greatly from its continued sale.”

Costs for the city to mitigate PFAS-contaminated water have already exceeded $1 million, according to the city.

PFAS have been widely used for decades around the world in an array of industrial processes and consumer products for their thermal stability and stain- and water-repellent properties. They are present in pizza boxes, plastics, paints and thousands of other products. PFAS have also been widely used at military bases and airports.

Some types of PFAS have been linked to kidney and prostate cancer, liver dysfunction, high cholesterol, and reproductive problems, among other health problems.

August 22, 2023

Science takes center stage in court hearing over paraquat and Parkinson’s disease

By Carey Gillam

Testimony is underway this week in a key federal court hearing aimed at examining scientific evidence about allegations that a widely used weedkiller called paraquat causes Parkinson’s disease.

The outcome of the hearing, which began Monday and runs through Thursday in East St. Louis, Illinois, is critical for thousands of people with Parkinson’s who are suing paraquat maker Syngenta AG and former paraquat distributor Chevron.

The plaintiffs claim scientific research shows that exposure to paraquat significantly increases the risk of Parkinson’s disease, but instead of warning users the companies prioritized paraquat sales over human health. The first trial is scheduled to start in October.

When this week’s hearing concludes, US District Court Chief Judge Nancy Rosenstengel will determine whether or not the plaintiffs’ experts and their scientific analyses will be allowed as evidence in the upcoming trials. Syngenta and Chevron are asking the judge to bar each of the plaintiffs’ scientific experts from testifying, saying their experience is lacking and their analyses are deeply flawed. If the judge agrees, the plaintiffs’ cases could be virtually unwinnable.

More than 4,600 plaintiffs are part of the multidistrict litigation (MDL) being overseen by Rosenstengel. More cases are pending in different jurisdictions around the US.

Syngenta and Chevron deny paraquat causes Parkinson’s and are fighting the lawsuits. The companies say the weight of scientific evidence demonstrates no causal link between the chemical and the disease.

Plaintiff’s lawyers told the judge their case will rely in part on years of animal studies showing that paraquat interacts in the brain to kill specific cells in a manner that is a hallmark of Parkinson’s disease. Human studies also support their case, the lawyers said. When the cases go to trial, they plan to present testimony from several expert witnesses supporting their allegations.

On Tuesday, the hearing turned to testimony by one of those expert witnesses – Cornell professor of epidemiology Martin Wells. Under oath, Wells told the judge that his analysis of years of published research led him to conclude that people exposed to paraquat have a risk of developing Parkinson’s disease that is substantially higher than for people not exposed to the weed killer.

Wells calculated an odds ratio of 2.8 with respect to paraquat’s causal relationship to Parkinson’s disease, meaning the risk of disease resulting from paraquat exposure was 180 times higher than the odds absent that exposure.

August 20, 2023

Conflict of interest alleged in Roundup case in Monsanto’s home town

By Carey Gillam

Lawyers representing a man who blames his cancer on exposure to Monsanto’s Roundup weed killer are crying foul over what they say are close personal ties between a lead Monsanto lawyer and a special magistrate helping oversee the Roundup litigation.

In an Aug. 17 court filing, the plaintiffs’ attorneys asked for St. Louis County special master Robert Blitz to be disqualified from his role in the litigation because of an “appearance of impropriety” and questions about his impartiality.

A hearing on the matter is set for Tuesday.

There are dozens of plaintiffs named in the case, and all allege that exposure to Monsanto’s glyphosate-based Roundup herbicide caused them to develop non-Hodgkin lymphoma (NHL).

One of the plaintiffs, Mark McCostlin, of Lenexa, Kansas, is set to go to trial against Monsanto in St. Louis County Circuit Court in early September.

The motion alleges that Monsanto lead attorney James Bennett “has a close relationship” with special master Blitz. The two men worked together as co-counsel in a separate case, and Bennett also has personally acted as legal counsel for Blitz and for his law firm, according to the motion.

Additionally, the two men are “effectively economic partners” in a contingency fee case that brought their two law firms $276.5 million in fees, which they split, according to the motion.

“Their relationship creates a conflict of interest such that Blitz is not qualified to serve as special master in any case in which Bennett is trial counsel,” the motion states.

August 15, 2023

GE, Bayer, blamed for child’s cancer in a community awash in PCB pollution

By Carey Gillam

A Massachusetts mother filed a lawsuit on Tuesday blaming widespread PCB pollution by General Electric (GE), Monsanto and its German owner Bayer AG, and several other companies for causing her 9-year-old son to develop leukemia and suffer repeated debilitating medical treatment.

Crystal Czerno alleges, among other things, that GE knowingly contaminated her son Carter’s elementary school and playground with PCB waste while downplaying the harm it could cause. The school is located in the town of Pittsfield, just north of a GE facility that made electrical transformers containing PCBS for more than 40 years. PCB-laden soil from the GE site was spread over the school grounds.

The lawsuit accuses the companies of using the community as a “dumping ground” for “toxic and cancerous” chemicals.

“As a mom I am supposed to protect my babies and I must now live with the fact that I moved them into a home and a school that put them in direct danger,” Czerno said. “My son Carter has paid the price.”

The young boy has undergone multiple rounds of chemotherapy, as well as full-body radiation, and multiple stem cell transplants and bone marrow biopsies, according to the lawsuit. Another bone marrow biopsy is scheduled next week, his mother said.

August 11, 2023

“Polluter pays” debate heats up over toxic PFAS chemical cleanup plan

By Carey Gillam
As US regulators work to tackle the toxic threat posed by a class of widely used chemicals known as PFAS, debate is heating up over who could – and should – get hit with the cleanup costs.

Over the last several weeks, federal officials have received an onslaught of conflicting calls for action regarding a proposal to designate certain types of per- and polyfluoroalkyl substances (PFAS) as “hazardous substances” under the nation’s so-called “Superfund” law. The designation would provide a pathway for the remediation of dangerously contaminated sites around the United States, including assigning liability for the hazardous waste cleanup.

The Environmental Protection Agency (EPA) is specifically proposing that PFOA and PFOS and seven other types of PFAS be designated for action under the Superfund law, known formally as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The public comment period on the EPA’s proposal ended Friday, drawing fevered pleas from individuals, industries and agencies across the country.

It is the issue of potential liability for PFAS contamination under CERCLA that is sparking fierce debate, as an array of parties, including water providers, landfill operators and even farmers, say they worry they could be saddled with millions of dollars in costs to try to rid their operations of widespread PFAS contamination that they had no hand in creating. They want the EPA and members of Congress to carve out exemptions to protect them.

June 22, 2023

In Montana, a landmark legal challenge over climate change

By Dana Drugmand

For 20-year-old college student Olivia Vesovich, climate change is not a future concern. It’s a current and near-daily crisis.

“Climate change has impacted my ability to breathe,” Vesovich testified from the witness stand of a Montana courtroom last week.

The college student, who suffers from asthma, is one of more than a dozen young people who have undertaken a landmark legal challenge against the state of Montana over the state’s support for industries that contribute to harmful climate change and related impacts on human health.

Smoky conditions stemming from wildfires that have been raging through the western US trigger have direct and frightening consequences, Vesovich told a packed courtroom in Helena.

“It feels like it’s suffocating me if I’m outside for too long,” Vesovich said.

Personal stories such as Vesovich’s were spotlighted over the last week in the case of Held v. Montana, which was filed by sixteen children and young adults who contend that Montana officials are turning a blind eye to climate pollution when issuing permits for fossil fuel projects, including expansion of coal mining.

The case is the first-ever constitutional climate trial in the country, pitting youth inheriting climate problems against the government leaders they blame for the dire legacy.

The plaintiffs are seeking a court declaration that the state is violating Montana’s constitution, which explicitly grants the right to a clean and healthful environment. The lawsuit targets two provisions of Montana’s energy policy, one that promotes the use of fossil fuels, and another that prevents state officials from taking into account how different projects contribute to climate change.