Legal Ethics and Liability in the Love Canal Tragedy

In 1979, the U.S. Environmental Protection Agency (EPA) filed a lawsuit against Hooker Chemical Company and its parent corporation, Occidental Petroleum (EPA, 1979). The Department of Justice (DOJ), acting on behalf of the EPA, charged these corporations with creating an imminent and substantial danger to health and the environment by violating the Resource Conservation and Recovery Act, the Clean Water Act, the Safe Drinking Water Act, the Refuse Act, and the common law of nuisance. In 1995, sixteen years after the suit was filed, Occidental agreed to pay the requested amount for cleanup and resident relocation costs (DOJ, 1995).

Congress reacted to the environmental and health disaster by enacting Superfund legislation, which contained a provision making polluters retroactively liable. However, the concept of retroactive liability has been a source of controversy for both legal and ethical reasons. This essay examines the legal and ethical issues of responsible party attribution surrounding the Love Canal tragedy.

Occidental's reaction to the DOJ lawsuit was to file a countersuit alleging government responsibility, on the grounds that government agencies were also involved in dumping (DOJ, 1995). It is hard not to wonder whether this allegation reflects a dispute among equally culpable parties, because in 1953, Hooker Chemical sold the property to the Niagara Falls Board of Education for one dollar (Regional Institute, 2008). The bill of sale included a warning about the chemicals that had been dumped and a disclaimer for future liability. The wording in the bill of sale suggests that Hooker was well aware of a potential liability risk.

Whether the Board of Education paid attention to the explicit and implied warnings is unknown, but someone made a serious mistake when a school was built directly on the landfill. The chain of decisions leading to that outcome points to failures at multiple levels — corporate, governmental, and institutional.

Lercher (2004) defines negligence as failing to act when the means to do so are available and it is appropriate, and when not acting substantially increases the risk of harm. The determination of liability depends on the concept of reasonableness — that is, what a reasonable person would have done in the same circumstances. Ignorance, although frequently used as a defense, cannot be invoked in cases where the responsibility to become informed about consequences can be reasonably expected.

With respect to the Love Canal tragedy, it can be reasonably expected that chemists would be aware of the potential for harm and therefore had an obligation to dispose of toxic chemicals responsibly. Under the common law definition of negligence, which forms the basis for tort law in the United States, Hooker Chemical was negligent even in the absence of immediate proof of harm.

Lercher (2004) compared the behavior of Hooker Chemical to dropping a loaded revolver on a school playground and walking away. The person who dropped the revolver did not cause immediate harm, but a reasonable person would view that behavior as negligent regardless of whether harm ultimately resulted. Lercher uses this analogy to explain that harm from toxic chemical dumping is often difficult to predict, and evidence of harm may take years or even decades to emerge — if it ever does. Nevertheless, under common and tort law, negligence can be attributed to actions where harm is difficult to predict and direct evidence of injury is initially absent.