The legacy of Agent Orange / Lawsuits Over Pesticides / Clarence Thomas / DOW and "Acceptable Risk" (3/5/2005)

The BBC report (item 1) on the massively high instances of genetic defects in areas where Agent Orange was sprayed is commendably clear. It is also accompanied by some memorable images.

Monsanto's part in the production of this dioxin contaminated herbicide is well known.

Item 2 - on the re-establishment of the right to sue the makers of approved pesticides when they cause harm - is good news from the Supreme Court. But note the attempt to undermine the judgement played by Monsanto's former corporate lawyer, Clarence Thomas.

Item 3, which relates to Dow - another Agent Orange manufacturer and the company at the centre of the Supreme Court case (item 2), is satirical but we can understand any temptation to take it at face value!

1.The legacy of Agent Orange - BBC
2.Lawsuits Over Pesticides, Herbicides Allowed - LA TIMES

1.The legacy of Agent Orange
BBC NEWS, April 29 2005

Thirty years after hostilities ended between the US and Vietnam, relations remain strained by one of America's most notorious actions, the use of the chemical Agent Orange.

[image caption: Vietnam doctors believe the effects of Agent Orange are ongoing]

The Vietnamese believe that the powerful weed killer - the use of which was intended to destroy crops and jungle providing cover for the Vietcong - is responsible for massively high instances of genetic defects in areas that were sprayed.

Nguyen Trong Nhan, from the Vietnam Association Of Victims Of Agent Orange and a former president of Vietnamese Red Cross, believes the use of Agent Orange was a "war crime".

He told BBC World Service's One Planet programme that Vietnam's poverty was a direct result of the use of Agent Orange.

"They are the poorest and the most vulnerable people - and that is why Vietnam is a very poor country," he said.

"We help the people who are victims of the Agent Orange and the dioxins, but the capacity of our government is very limited."

Contaminated areas

Campaigners such as Mr Nguyen believe they have been left with little choice but to resort to legal action, and in 2004 took the chemical companies that produced Agent Orange to court in the US.

But last month an American Federal District Judge dismissed the case on the grounds that use of the defoliant did not violate international law at the time. An appeal has been lodged against this decision.

The US sprayed 80m litres of poisonous chemicals during Operation Ranchhand. There were many Agents used, including Pink, Green and White, but Agent Orange was used the most - 45m litres sprayed over a 10th of Vietnam.

It was also used - mostly in secret - over parts of neighbouring Cambodia.

[image caption: "It's not going to go away, because it affects a huge number of people in Vietnam" - Andrew Wells-Dang, Fund for Reconciliation and Development]

But Agent Orange in particular was laced with dioxins - extremely toxic to humans. Dioxins accumulate in the body to cause cancers. Anyone eating or drinking in contaminated areas then receives an even higher dose.

Spraying stopped in 1971, after more than 6,000 missions and growing public disquiet.

But the ground in many areas of Vietnam remains contaminated by Agent Orange. A number of people in these areas believe they are victims of the chemical.

One woman said the herbicide had caused a skin disease which gave her "great suffering".

"If the US and Vietnamese governments could care for people like me, that would be comforting," she added.

Another man said his legs have "wasted away" as a result of Agent Orange.

"When I realise I have been contaminated with poisonous chemicals, and the US government hasn't done anything to help, I feel very sad, and it makes me cry," he added.

"Now I always get severe headaches. My first child has just died - he had physical deformities. The second one is having headaches like me."

Cancers and disease

Food and supplies are still delivered to victims of Agent Orange. Many were not born when the US sprayed the area - but there is strong evidence the chemicals are still having an effect.

A disproportionately large number of children in the areas affected are born with defects, both mental and physical. Many are highly susceptible to cancers and disease.

And Vietnamese doctors are convinced Agent Orange is to blame.

[image caption: Agent Orange was intended to defoliate the jungle]

"This is due to the US sprayings," said Dr Hong Tien Dong, village doctor who has lived in the area all his life.

"Before, in this area, the environment was quite clean.

"Now it has become like this."

In the late 1990s, a Canadian study tested soil, pond water, fish and duck tissue, as well as human blood samples, and found dangerously high levels of dioxin travelling up the food chain to humans.

Dioxin concentrations have been found to be 13 times higher than average in the soil of affected areas, and, in human fat tissue, 20 times as high.

A Japanese study, comparing areas sprayed with those that were not, found children were three times more likely to be born with cleft palates, or extra fingers and toes.

There are eight times as many hernias in such children, and three times as many born with mental disabilities.

In 2001, scientists found that people living in an Agent Orange "hotspot" at Binh-Hoa near Ho Chi Minh City have 200 times the background amount of dioxin in their bloodstreams.

Humanitarian opportunity

America "normalised" relations with Vietnam 10 years ago, and the country has now embraced the free market.

No representative of the US government in Vietnam would talk to One Planet about Agent Orange.

However, in 1984, chemical companies that manufactured the Agent paid $180m into a fund for United States veterans following a lawsuit. They did not, however, admit any wrongdoing.

Meanwhile in 2004 - at the same time Mr Nguyen first brought his lawsuit - a joint-US-Vietnamese project to examine the long-term genetic impact of Agent Orange was cancelled.

[image caption: US Vietnam veterans won money from Agent Orange makers in 1984]

Some Americans in Vietnam fear that the legacy of Agent Orange is overshadowing the new friendship between the two countries.

"Many of the other obstacles have been dealt with - trade and exchange and diplomatic relations," said Andrew Wells-Dang, from the Fund For Reconciliation And Development - an American organisation set up in the 1980s with the aim of improving relations between the countries.

He pointed out that the US has provided funding for clearing mines that it dropped on Vietnam during the war.

"We think the US should do the same with Agent Orange," he added.

"It's not going to go away, because it affects a huge number of people in Vietnam.

"We would see this as an opportunity for the US to take humanitarian action so that it doesn't become an obstacle between the countries."

2.Lawsuits Over Pesticides, Herbicides Allowed
LA TIMES, April 28 2005
THE NATION,1,4944274.story

The Supreme Court rules against the White House's pro-business reading of a 1972 law.

WASHINGTON - The makers of pesticides and weedkillers can be sued and forced to pay damages if their products cause harm, the Supreme Court ruled Wednesday, rejecting the view of the Bush administration and reversing a series of lower courts.

The 7-2 ruling permits lawsuits by farmers whose crops are damaged by pesticides, as well as suits by consumers who are hurt by bug sprays.

In its first ruling on the scope of the 1972 federal law regulating pesticides and related chemicals, the justices said the requirement that chemical companies submit their products for approval by the Environmental Protection Agency did not "give pesticide manufacturers virtual immunity" from being sued if those products proved to be harmful to people, plants or animals.

Wednesday's ruling restores the law to what it had been before the 1990s.

During most of the 20th century, Americans who were hurt or killed by toxic chemicals could sue the maker of the product in state court. But more recently, lawyers for the chemical industry convinced courts in much of the nation, including California, that the federal law regulating the pesticides barred such lawsuits in state courts.

Four years ago, the Bush administration adopted this pro-industry position, saying that once a pesticide or weedkiller had won EPA approval, it had a federal shield against being sued - even if the product did not work as advertised.

The case of 29 Texas peanut farmers illustrated the issue. Five years ago, they were persuaded by agents of Dow Chemical Co. to try Strongarm, a powerful, newly approved weedkiller. The farmers say Strongarm killed not just their weeds, but also their peanut plants.

"They just plain withered away," said Ronnie Love, 63, who said he applied Strongarm to 150 acres when he seeded his fields that spring. Despite a summer of heavy watering, the peanut plants were stunted and failed to produce a crop, he said.

Love and the other farmers say Dow reneged on a promise to compensate them for millions of dollars in crop losses. They notified the company that they intended to sue in a Texas court under the terms of the state's consumer protection law, which allows suits for products that are defective or are deceptively marketed.

But before they could file their claims, lawyers for Dow went to a U.S. district court in Lubbock and asserted it was shielded from such suits.

A federal judge agreed with Dow and dismissed the farmers' suit. And the U.S. 5th Circuit Court of Appeals in New Orleans agreed as well, saying federal law that regulates pesticides preempts or bars lawsuits in a state court. The California Supreme Court handed down a similar ruling five years ago.

But the Supreme Court took up the case of the peanut farmers - Bates vs. Dow AgroSciences - and ruled Wednesday that the lower courts were wrong to throw out such claims.

Justice John Paul Stevens noted that the EPA did not test products to see if they were effective. It simply relies on information supplied by the manufacturer.

After the peanut crops in Texas failed, Dow changed Strongarm's product label to say the weedkiller should not be used in regions with high-alkaline soils, which are common in Texas and Oklahoma.

The company did not acknowledge liability for the earlier damage.

Stevens described the 1972 law as an effort by Congress to impose greater regulation on "poisonous substances." Converting it into a shield against lawsuits would "create not only financial risks for consumers, but risks that affect their safety and environment as well," he said.

"This is a huge win for farmers, and I think it will have a big impact in the agriculture industry," said David C. Frederick, the Washington lawyer who represented the peanut farmers. "Pesticide makers and farmers have to work together. And if something goes wrong with a pesticide, the farmers deserve to be compensated. Now the courthouse door is open to them again after being closed for the past 15 years."

Patti Goldman, a lawyer in Seattle for the environmental group Earthjustice, said the ruling would help consumers and workers harmed by pesticides.

She and other lawyers cited cases of children sickened by pesticides that had drifted from fields into residential areas and that of a young man who died after riding a horse that had been sprayed with a pesticide. Recently, such lawsuits had been dismissed prior to a trial.

Wednesday's ruling does not mean the plaintiffs will always win, the lawyers said, noting that they would have to prove the product was defectively made or inadequately tested to prevail in court.

"This just means that people will be allowed to sue for compensation when they are harmed by a pesticide," Goldman said. "The court recognized that these [EPA-approved] labels are written by the manufacturers."

The Bush administration, the chemical industry and other business groups joined the case on the side of Dow Chemical Co., arguing that the court should erect a barrier to such lawsuits.

"This is a complete loss and a big disappointment," said Steve Bokat, general counsel for the U.S. Chamber of Commerce. "Our concern is that this gives an opening for the plaintiffs' bar to bring more tort claims against large companies."

In his opinion, Stevens pointed out that the Clinton administration believed that the federal pesticide registration law did not shield manufacturers from all lawsuits. The Bush administration reversed course in 2001 and said the law as originally written did block such claims.

Stevens called the new interpretation "particularly dubious" and not entitled to much deference from the high court. Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined the court's opinion.

Justices Clarence Thomas and Antonin Scalia dissented in part, criticizing the court for "tipping the scales in favor of the states and against the federal government" by allowing lawsuits in state courts.

Thomas said most of the legal claims raised by the peanut farmers should have been thrown out of court.

3. Acceptable Risk[TM] Announcement
May 3, 2005


"Risk Calculator" helps ensure sound business practice

When government is made to take the back seat in regulatory matters, corporations must rely on their own judgment to determine what is, and what isn't, acceptable where human lives are at risk.

Doing this has until now been more of an art than a science. With Acceptable Risk, business finally has a risk standard of its own, reflecting its values and allowing us to reliably factor human and environmental casualties into business decisions in accordance with the soundest of economic principles.

Last Thursday in London, Dow representative Erastus Hamm unveiled Acceptable Risk, the Acceptable Risk Calculator, and the Acceptable Risk mascot--a life-sized golden skeleton named Gilda--to an audience of about 70 banking professionals, including some from Dow's largest investors. Many of the bankers in attendance excitedly signed up for licenses for the Calculator, which helps businesses scientifically determine the point where casualties start to cut into profit, while suggesting the best regions on earth to locate dangerous ventures.

Hamm told the bankers how Acceptable Risk would have applied to some famous "skeletons in the closet" of big business: IBM's WWII sale of technology to the Nazis for use in identifying Jews; Dow's production of napalm and Agent Orange for use in Vietnam; and the plight of Dursban, a Dow pesticide whose main ingredient came out of Nazi nerve agent research, was tested on student volunteers as recently as 1998, and was finally banned two years later.

Each of these cases entailed heavy casualties, Hamm noted, and yet each was immensely profitable and therefore consistent with sound business practice. Hamm said the case of the Bhopal gas disaster of 1984 was slightly more complicated--but so long as so-called "socially responsible" investor groups do not get away with forcing Dow to spend too much time on the matter at the May 12 AGM and elsewhere, that case could end up being a "golden skeleton" too.

Please visit to try out the Acceptable Risk Calculator for yourself, and for text, photos and video of the London announcement


Back to the Archive