Human knowledge evolves over time. And the law follows in its wake.
We often believe, erroneously, that we know how the world works.
Any hindsight will show us that such belief is wrong.
The ancient Egyptians practiced medicine and devoted a lot of effort
toward understanding disease. They came up with cures that they
thought were sound. For example, if a person had a burn, the Egyptians
had a cure: take breast milk from a woman who had borne a male child,
mix it with gum and ram's hair and apply it to the burn while chanting
special words. For indigestion, they prescribed crushing a hog's
tooth, putting it inside four sugar cakes and eating one cake a
day. Do we still believe that is good medicine?
Modern history isn't much better. Fifty years ago, smoking cigarettes
was not only socially acceptable, it was encouraged. Magazine ads
said: more doctors recommend this brand for its smooth taste. Advertisements
showed pictures of doctors smoking with a big smiles on their faces.
That wasn't long ago.
The reality is, we often know something about our physical world
— but not everything. Even today, this is true when it comes
to cancer. Despite the prevalence of cancer, we are still terribly
ignorant about its causes and development.
Cancer affects one out of every two men who reach 70 years old
and one out of every three women who reach 70 years old. And, obviously,
it kills many people before they reach 70.
Does this have anything to do with environmental law? Yes, quite
a bit. When people get hurt or sick in our society, they often look
around for someone to blame. The search for a litigation defendant
is commonplace. It arises in this context as in other areas of law.
The difference here is, the limits to our knowledge about cancer
restrict our ability to sue other people for causing it.
One of the features of industrial society is the creation of environmental
contamination. We make pollution. To heat our homes and travel in
cars, we use petroleum; to manufacture products, we generate solid
and hazardous wastes; to dry-clean our clothes, we use dangerous
chemicals. We soil our environment in order to enjoy the benefits
of modern industrial society.
Reasonable people can debate whether that is a good thing or a
bad thing, but we have to realize that it exists. Poking our heads
in the sand is dangerous, especially when the sand is full of toxic
There are over 700 Superfund sites in New York State and half of
them are on Long Island. There are also thousands of oil-spills
known to have occurred in Nassau and Suffolk Counties. There is
contamination throughout our environment. We breathe in pollutants;
we ingest pollutants; we touch pollutants. Whether we are aware
of it or not, our bodies are exposed to pollutants every day in
multiple ways. We only start to worry about it when we or someone
we care about gets sick.
Why doesn't the average citizen know more about contamination and
the risks it poses? Because it doesn't serve anyone's interest to
inform them about it – and it creates problems that the two
interested parties would rather avoid. The companies that pollute
do not want the public to know about what they do, for obvious reason.
It surprises people to learn that our government also doesn't want
the public to focus on environmental contamination. When the public
learns anything about pollution in their drinking water, their air
or their homes, they immediately panic and pressure government officials.
That response is not welcomed by people who work in government.
Government officials prefer a calm, ignorant public to an informed,
Anyone who practices environmental law has seen this. When someone
reports an oil-spill near their home, the government seems more
concerned about preventing public panic than cleaning up the mess.
Reassurances are given, even in the absence of information. "Your
drinking water is safe," people are told. "The air is
fine," people are told. Rarely are samples taken and tested,
and even when they are, the results are almost never given to the
public. Again, people can disagree on whether this is good or bad,
but it happens routinely.
Despite efforts to keep a lid on information, people do see the
consequences of pollution in increased occurrence of cancer. From
that, it is not hard to deduce that there are some causes of it
This observation used to be made anecdotally. Now, it is being
shown statistically. New studies are documenting a greater incidence
of cancer in parts of Long Island than is normal.
A major, important study was conducted last year and was published
in August. The study confirmed the existence of cancer clusters
on Long Island. A "cluster" is more cancer in an area
than is normal, to the degree that it cannot be attributed to random
chance. Something is causing cancer to residents in a cluster.
The study examined the occurrence of cancer in Nassau, Suffolk
and Queens. Nine areas were found to have greatly elevated rates
of cancer. The study created geographical maps showing where the
The study compared these findings to the presence of known contaminants
in the areas. The study found a strong correlation between high
levels of airborne contamination and increased lung cancer rates.
Places with little air contamination had little lung cancer; places
with more air contamination had more lung cancer victims.
The study also tried to correlate breast and colon cancer to environmental
contamination but couldn't find a statistical relation. Some places
had more breast and colon cancer than is normal, but couldn't be
tied to any known contamination. This is likely due to incomplete
knowledge about the presence of contamination in our neighborhoods.
This study is available for review and downloading on the Internet.
While we now know that there is more cancer in our neighborhoods
than there should be, we do not know exactly what is causing it.
Studies of statistical data have not been able to pinpoint the causes
for the statistical abnormalities. And the truth is, that question
is far more complicated than our current science can figure out.
The biggest problem is that none of us live in a bubble where only
one thing is affecting our health. We are affected every day by
multiple forms of contamination, in varying degrees and our susceptibility
to cancer differs among us. It is not scientifically possible today
to isolate out a single cause of breast cancer and say, "Aha!
This is what gave it to me!".
There is hope for the future, however. When we look back at the
medicine of the ancient Egyptians, we think, "Gee, that's so
primitive." In 50 years, Americans will look back at our ignorance
about environmental contamination and say, "Wow, how could
they have been so unaware?"
The fields of science that are working on this now, and will probably
yield insight in the near future, are cellular biology, genetics
Where does this leave us with the law? Well, if you survey the
cases involving claims of cancer and contamination, you'll see that
the news is not good for cancer-victims.
The critical legal element in these cases is causation. The defense
always contests it and usually successfully. To prove that a single
factor caused cancer in someone is hard for numerous reasons. First,
that factor wasn't the only thing a plaintiff was exposed to during
his life. Did he smoke? Was he exposed to chemicals at work? Does
he stick his hands in pans of chemicals in the photography darkroom
in his basement? Has he eaten non-organic food? The list of possible
causes is endless and trying to exclude other potential causes is
like trying to prove a negative.
Another problem with these cases is expert testimony. It is hard
to find a doctor who is knowledgeable about the science of this
area and, even if you find one who is, that's often not enough.
The scientific basis of expert testimony must itself be proven,
and not merely an expert's belief or faith in his opinion. The current
state of science on this topic is conflicted and there are studies
going both ways.
We started out by observing that law follows the evolution of human
knowledge. Before we can turn to the law for remedies, we need to
advance our scientific understanding of how contamination causes
cancer and other diseases. It is an extraordinarily complicated
question. We are on the way to that knowledge, but we are not there