Shandong Delegation, Nicaraguan DBCP Litigation, "Energy Citizen" Rallies & Chinese Smelter Protests

On Monday I gave a lecture on water law to a delegation of officials from China’s Shandong province who are in the U.S. for a four-month training course. The 2009 Shandong Public Administration Leadership Development Program is sponsored by the Chinese government and the University of Maryland’s Institute for Global Chinese Affairs in College Park. Two years ago I visited Shandong province when I gave guest lectures at Qingdao University in the beautiful coastal town of Qingdao, famous for its beer (known in the U.S. as Tsingtao) and as the site of the 2008 Olympic sailing competition. I devoted a considerable part of last Monday’s lecture to enforcement issues because they are now such an important concern in China.

On Wednesday the Wall Street Journal published an article following up on the April 2009 dismissal of lawsuits brought in Los Angeles Superior Court against the Dole Food Company for allegedly exposing Nicaraguan banana workers to the pesticide DBCP (1,2-Dibromo-3-Chloropropane). Steve Stecklow, Fraud by Trial Lawyers Taints Wave of Pesticide Lawsuits, Wall St. J., Aug. 19, 2009. DBCP was banned by EPA for use in the U.S. because of its reproductive toxicity. Yet its manufacturer Dow Chemical Co. continued to sell the pesticide to Dole for use in other countries, spawning lawsuits by foreign workers allegedly rendered sterile by exposure to it. Some of these initial lawsuits resulted in multi-million dollar settlements, including a case brought by Costa Rican plaintiffs (Dow Chemical v. Alfaro) that I discuss in my environmental law casebook. As discussed in the Wall Street Journal article, Los Angeles Superior Court judge Victoria Chaney dismissed the latest cases as tainted by pervasive fraud by lawyers and others in Nicaragua who recruited plaintiffs who had never worked on banana plantations, falsified lab reports, and sought to intimidate witnesses who helped expose the fraud.

Nicaraguan courts have awarded more than $2.1 billion in damages to plaintiffs, using Special Law 364 enacted in 2001 to make it easy for plaintiffs to recover in DBCP cases. As described by Judge Chaney, under this law “essentially anyone who obtains two required lab reports stating he is sterile and who claims to have been exposed to DBCP on a banana farm is entitled to damages; causation and liability are conclusively presumed”. Under special procedures prescribed by the law, the defendant must post a $15 million bond and “has just three days to answer the complaint, the parties have just eight days to present evidence, and the court has eight days to issue a judgment.” In light of Judge Chaney’s conclusions concerning pervasive fraud in Nicaragua, it is unlikely these judgments will be enforced by U.S. courts. However, Judge Chaney did specifically state that her conclusions only applied to cases involving Nicaraguan plaintiffs and that no evidence of fraud has been presented involving DBCP plaintiffs from any other country.

The first of the planned 21 “Energy Citizen” rallies organized by the American Petroleum Institute to mobilize energy industry opposition to legislation to control emissions of greenhouse gases (GHGs) was held in Houston last Tuesday. Grist magazine described it as a “glorified company picnic” with supporters of the legislation being barred from attending. http://www.grist.org/article/2009-08-19-houstons-energy-citizen-rally-was-just-a-glorified-company-picni/ On Friday Grist reported that 15 of the organizers of these rallies are registered as lobbyists for members of the American Petroleum Institute or state-level affiliates. http://www.grist.org/article/2009-08-21-energy-citizens-rallies-organized-by-industry-lobbyists/

Fierce protests by parents of lead poisoned children reportedly erupted around two large smelters in China last week. Last Monday angry villagers in Changqing in Shaanxi province reportedly tore down fences and attacked trucks associated with a lead and zinc smelter believed to be linked to high levels of lead found in 851 children living nearby. Lead is a potent neurotoxin associated with a host of developmental difficulties in children. In Wenping, a town in Hunan province, officials closed the Wugang Fine-Processed Manganese Smelting Factory and detained two of its owners after elevated levels of lead were detected in 1,354 children living nearby, nearly 70% of all children tested. The smelter reportedly opened in May 2008 without obtaining any environmental permits. The general manager of the plant is still being sought by police for causing “severe environmental contamination” while the head of the local Environmental Protection Bureau has admitted mistakes in not previously enforcing environmental standards. Cui Jia, Ministries Send Officials to Head Up Lead Poisoning Probe, China Daily, August 23, 2009.

I am currently in Miami, Florida. My family and I flew to Miami on Friday to take our son to start his freshman year of college. While our son is now settled in his dorm room, the rest of us were supposed to be back in D.C. by now. However, our return flight was abruptly canceled this afternoon and we are unable to get another flight until late tomorrow. Fortunately I don’t have to start teaching at Maryland until a week from tomorrow and I only had to reschedule one meeting to accommodate an extra day in Miami.