1974 Developments Underscore Need for Altered Standard of Proof in Public Health Cases

If the downfall of Richard Nixon had not monopolized the news media in 1974, the year just past might well be remembered for its dramatic revelations about the various dangers to public health. For the first time, Americans learned that ordinary tap water in many areas contained potent carcinogens and that chlorination of water may cause cancer. In the aldrin/dieldrin hearings, the nation discovered how two carcinogenio pesticides have permeated the nation's food supply and the bodies of all Americans, to the point where breast-feeding of infants may be extremely hazardous.Americans learned also (in 1971) that diethylstilbestrol, a drug widely prescribed over a twenty-year period to prevent miscarriage, has caused numerous cases of fatal vaginal cancer in girls who were still in the womb when their mothers took the drug. Freon, the propellant gas widely used in aerosol cans, was reported by several groups of scientists to be gradually disintegrating the ozone layer that protects the earth's population from cancer-causing ultraviolet radiation.

To many Americans, these discoveries came as a surprise. The United States is a society which, like many others, reasonably or unreasonably places great faith in its doctors and scientists. Perhaps it is reasonable to assume that a nation capable of putting a man on the moon is able to ascertain whether a chemical causes cancer before allowing it to enter the food or water supply. This assumption ignores, however, an important distinction between the two situations: while there is no economic benefit for anyone in preventing men from landing on the moon, there is an enormous financial incentive for the manufacturers of pesticides, aerosol sprays, and drugs to prevent their products from being banned. Nor are the nation's laws designed, as many might imagine, to guarantee that in dubious cases the interests of public health will take precedence over mere economic considerations. In part because of legislation written with the interests of affected industries very much in mind, in part because of the application of traditional legal standards of proof to public health cases for which they are inappropriate, the last year has shown dramatically how inadequate existing law is to protect the American people's health.

The outstanding example of the law's shortcomings in this regard is the Reserve Mining decision. The factual situation suggests a Brecht play satirizing American politics and values. The Reserve Mining company is taken to court because it is dumping 69,000 tons of taconite tailings into Lake Superior every day. Lake Superior is the source of drinking water for Duluth and many other communities. The taconite is found to contain asbestos fibers. Asbestos is known to cause cancer in man when the fibers are breathed in. (Indeed, cancer is now appearing among adults whose only contact with the substance occurred in childhood, when their fathers came home from work in asbestos plant with fibers adhering to their clothes.) There is proof, however, that asbestos causes cancer when ingested; scientists consider this a reasonable surmise, but it remains speculation nonetheless. For actual proof it will be necessary to wait until the full latency period (that is, the time between exposure to a carcinogen and the development of cancer) has expired. The district court agrees with the affected states and municipalities that the dumping presents a serious danger to public health, notes that the company refused to find alternative means of disposing of industrial wastes, and orders dumping stopped. The circuit court of appeals reverses the lower court, declaring that no "demonstrable health hazard" has been shown, and criticizing the lower court for taking the "position that all uncertainties should be resolved in favor of health safety." The court conditions its refusal to ban the dumping on the prompt selection by the company of other ways to dispose of the wastes. The court explains that economic hardships which the company would suffer must also be taken into account. The Supreme Court upholds the circuit court. As schools in the Duluth area install filters to remove fibers from drinking water, the Environmental Protection Agency forbids airplanes and buses stopping in the city to fill their water tanks there.

The grotesquerie of Reserve Mining was repeated, fortunately with a different outcome, in the aldrin/dieldrin proceedings. There the crucial issue was again the standard of proof to be met in cases touching public health. [5 ELR 10008] Although the Environmental Protection Agency began the process of removing the two pesticides from use early in 1971, it did not feel it could meet the burden of proving an "imminent hazard" to human helath, and therefore order an immediate suspension of manufacture of the chemicals, until three years later. The damage which may have been done in those three years of using aldrin/dieldrin, especially to children, is incalculable.

In administrative hearings on the EPA suspension order, Shell Chemical, the sole manufacturer of aldrin/dieldrin, urged strenuously that the data showing the chemicals to be carcinogenic in animals was insufficient to support a ban. One official of the company asserted that even if aldrin/dieldrin were proved carcinogenic in rats or dogs, the odds of its being carcinogenic to man would still be "only 70 percent." He explained that to ban a chemical simply because of 70 percent likelihood of carcinogenic genicity "would eliminate many potentially useful compounds." The administrative law judge hearing the case reacted with shock and incredulity, but presumably Shell did not advance this position in order to demonstrate to the world the relative importance it assigned to its own profits and other people's cancers. They were, rather, propounding the theory which EPA Administrator Russell Train, in rejecting it, referred to as the "body count" approach — that is, show us a dead human and we'll believe the substance is dangerous. It was this standard, in effect, which the Fifth Circuit employed earlier in the year when in Florida Peach Growers v. Hodgson, it struck down Labor Department rules designed to protect farmworkers from application of toxic organophosphate pesticides to crops. The danger, according to the court, had not been sufficiently proved.

While EPA has been successful, so far, in banning aldrin/dieldrin, it rescinded in June its cancellation of 2,4,5-T, a pesticide believed to be highly carcenogenic as well as toxic. The data to support cancellation, according to the agency, was insufficient. (Ironically, the evidence on which aldrin/dieldrin was banned came largely from Shell's own published studies. No manufacturer of carcinogenic chemicals is likely to make that mistake a second time.)

In December, a special three-judge panel of the Second Circuit Court of Appeals stayed enforcement of a Labor Department rule that would have limited levels of vinyl chloride gas in the air factory workers breathe to one part per million. The gas is believed to have caused more than two dozen workers to develop a rare and invariably fatal type of liver cancer. An interim level of 50 parts per million was set last March, when the first deaths were reported. Before that time, concentration of vinyl chloride in the air of factories producing polyvinyl chloride plastic often exceeded several thousand parts per million. The court based its ruling on the economic harm the plastics industry would suffer if forced to meet the more stringent standard. A decision on the merits is expected in January.

The freon controversy, discussed in greater detail in another Comment in this month's ELR, offers another example. The danger that the fluorocarbon gas released from aerosol cans will so diminish the ozone layer as to increase substantially the incidence of skin cancer is considered extremely grave by several groups of researchers working on the problem independently. Proving the danger, however, is another matter altogether; by the time that actual proof is possible, thousands of persons may have paid dearly for the years of delay.

When Hamlet named "the law's delay" as one of the inducuments to suicide, he was referring to the length of time suits lingered in the courts of law and equity. Today, however, the law's delay in public health cases is itself societal suicide, as technology is able to produce new and dangerous pesticides, drugs, and household products much faster than science and the law can study them and remove them from use. The scientist's care in differentiating strong probability from proven fact and the law's similar emphasis go hand in hand; except for drugs, the law presumes substances and products to be safe until proven otherwise, and places the burden on the party attacking the product's safety. The notion of pre-testing on a broad scale, of preventing mistakes rather than correcting them, is still considered by many Americans to be undue infringement on free enterprise. (It is ironic that the EPA and Environmental Defense Fund found it necessary to lay heavy stress on the financial burden which cancer sufferers and their families bear.)

It is, of course, cancer which so dramatizes the inadequacy of existing standards of proof. Ordinary principles of causation simply do not work when the issue is whether a given substance will cause possibly fatal harm not immediately but twenty or thirty years hence. The fact that the victims of 1995 cannot be identified by name in 1975 cannot justify subordinating their physical, emotional, and financial suffering to this year's profits or to abstract notions of free enterprise. At issue is less a matter of proof than of fine degrees of risk, of determining as a society which risks we are willing to tolerate and which we are not.

Apparently, however, the American people as a whole, despite the increase in cancer rates and the growing realization of how permeated with carcinogens our environment now is, are not yet so troubled or so frightened as to demand a change. The Toxic Substances Control Act passed both the Senate and the House, but the two bodies were unable to resolve their differences on the issue of pre-testing, and the bill never emerged from a conference committee. Bills were also introduced into the House and Senate which would have shifted the burden of proof from plaintiffs to defendants in public health cases once the plaintiffs had shown that the defendants' activities presented a "reasonable risk" of harm. In the House, Rep. Philip Ruppe (R-Mich.) proposed an amendment to this effect to the Safe Drinking Water Act, but it was rejected by a voice vote. In the Senate, Philip Hart (D-Mich.) and Gaylord Nelson (D-Wis.) intorduceda similar measure. [5 ELR 10009] Asked in December what its prospects for passage were, a Hart staffer replied, "not a chance in hell." The prediction was accurate.

It seems inevitable that Congress will sooner or later attempt to arrest this national self-destruction. That awaits, however, the nation's collective decision that out present policy is both obsolete and intolerable. Until that occurs — and indeed, long after, for the effects of chemicals already in the environment may not appear for many years — we will pay the penalty as individuals for the priorities we set as a society.