By MATT CHANDLER
Buffalo Law Journal

Though three decades have passed, the mere mention of Love Canal evokes strong emotions and, for many longtime Western New York residents, painful memories.

The community of Niagara Falls was rocked by the revelation in 1978 that the residential neighborhood sat atop a former toxic waste dump site that housed 30 million pounds of toxic waste. Concerns over high rates of birth defects, cancer and other health issues led residents to see toxins seeping out of the ground as the culprit.

The legal battle over the Love Canal waste began in 1978 and played out for nearly two decades. Occidental Petroleum, which had purchased Hooker Chemical, the company that owned the contaminated site, eventually settled with the government for $129 million - a figure that did not include damages awarded in hundreds of civil lawsuits by residents who became sick while living in the Love Canal neighborhood.

Throughout the massive litigation, hundreds of millions of dollars flowed through the hands of lawyers, insurance carriers, families affected by the tragedy and governmental entities. The federal government stepped in and relocated hundreds of families, eventually purchasing more than 500 houses from Love Canal residents unable to return to their homes.

We asked area lawyers involved in the Love Canal litigation to assess what long-term impact those cases have had on environmental law and litigation today and to help us answer this question: Did Love Canal lead to an environmental revolution, or is it now a footnote in the natural evolution of environmental regulation?

A textbook ‘worst-case scenario'

John Kolaga, a partner and head of the environmental-law practice at Jaeckle Fleischmann & Mugel LLP, believes the flood of regulations and reforms that came out of the Love Canal litigation have, over time, had a positive impact.

"When the process started, it was a bit of trial by fire," explained Kolaga, who served as clerk to Hon. John Curtin of U.S. District Court for the Western District of New York during the time the federal judge presided over the messy Love Canal litigation. "People woke up and found out what they had been doing for 50 years was suddenly expressly illegal. The changes seemed tough at the time, and it was perhaps an overcorrection, but I think the Love Canal was the ‘perfect storm' type of case: a school is built on top of a waste-disposal site. It was almost like it was scripted for the worst-case scenario."

Kolaga said that while the new laws and regulations may have more of a negative impact on smaller companies that are unable to absorb the cost of compliance with regulations related to handling and disposal of toxic waste, the result is a cleaner environment for everyone.

"As time has gone by, there has been a great deal of waste minimization, and companies like Occidental are at the forefront of handling their waste in the most responsible way possible," he said.

Another benefit to come out of the Love Canal litigation-, Kolaga said, has been broader public awareness of environmental issues.

"We have all become much more sensitive and concerned about environmental factors," he said. "In general, people know you can't just throw stuff out in a barrel behind the plant anymore."

The chance of a lifetime

J. Joseph Wilder was just two years out of law school when, working at Phillips Lytle LLP, he was assigned to work on the Love Canal litigation. It was an assignment that would consume five years of his career and, Wilder said, make him a much better lawyer along the way.

"I was probably too young ... to appreciate the magnitude of it all," he said of his involvement in the case. "But I don't know at the time that any of us knew just how historic this was going to be."

He said being part of a case where the government was seeking in excess of $1 billion dollars in damages from his client, Hooker Chemical, afforded him opportunities as a young lawyer that he may never see again.

"Because there was so much at stake, there wasn't anything you couldn't cost-justify," he said. "There was no theory or idea that was too expensive to investigate, so in that sense, it was a wonderful opportunity where the theory of law and the practice of law met."

Wilder says that although he may never see a case of Love Canal's magnitude cross his desk again, he carries with him some important lessons that have shaped how he practices law.

"Although in most cases you have to be more practical than we did with Love Canal, it still taught me that it is worthwhile to think outside the box and look for other ways to approach a case," he said. The case, he added, also magnified the fact that there are always two sides to any story, something he said wasn't always evident in the media accounts of Love Canal developments.

"When I got hired at Phillips Lytle, I thought to myself, ‘Wow, this will be a great place to work. I just hope I don't have to work on that Love Canal case,' " he recalled. "But once I got involved with it, it really showed me that there is ... always more than what you first see."

The proof is in ... Lake Erie

While Wilder was knee-deep in Love Canal litigation at Phillips Lytle, Jennifer Dougherty was a high-school student looking forward to a future career in the environmental field. She had no way of knowing then that she, too, would end up working at that firm, also in the environmental practice area - or that 20 years later, she'd still witness the impact of Love Canal.

"I remember learning about Love Canal when I was very young," she explained. "I always knew I was going to end up in an environmental field, and to me it was not only a landmark case, but especially if you grew up and lived in this area, it was a landmark event."

As a student at Alfred University in the 1990s, Dougherty found herself studying Love Canal while the case was still being litigated.

"I had the unique experience as an undergraduate to write a report about Love Canal," she explained, "and I was able to hop in the car and drive up there to see it for myself."

Dougherty sees the historic case as the beginning of a major shift in environmental attitudes in America.

"Love Canal was basically the birth of the environmental practice here (at Phillips Lytle)," she said. "There were other environmental cases at the time, but it got so much coverage and notoriety. Plus, the fact that it was right here in my back yard drew me into this case."

One thing all of the lawyers we spoke to agreed upon is that for the hundreds of millions of dollars spent and the thousands of lives adversely impacted by what occurred in the Love Canal neighborhood 30 years ago, a lot of good has come from it.

From the CERCLA, or Superfund laws that govern cleanup of toxic sites to the strict "cradle to grave" regulations that hold companies responsible for their waste from the moment they produce it into infinity, these lawyers say that today, Niagara Falls, Western New York and all of America are cleaner and safer because of the legislation born out of the Love Canal tragedy.

"I grew up in a time when you couldn't swim in Lake Erie," Wilder said. "If you swallowed the water, you'd end up sick, (and) there were dead fish washing up on the beach, so there is no question something needed to be done. Are things better today than they were 30 years ago? Absolutely."

 

A Love Canal timeline

• 1890s - Owner William Love envisions building a "model city" on property around the Love Canal. He runs out of money; the project never happens.
  
• 1920s - The site becomes a dumping ground for Niagara Falls.
  
• 1947 - Hooker Chemical purchases the land and eventually dumps more than 21,000 tons of toxic material on the site.
  
• 1953 - Under pressure from the school board, Hooker sells the land to the Niagara Falls Board of Education for $1. The board later sells half the parcel for residential development.
  
• 1955 - The 99th Street School opens on the site.
  
• 1976 - The first reports of concerns about toxins in Love Canal surface.
  
• 1978 - Love Canal resident Lois Gibbs becomes the public face of the story. Government testing shows that unsafe levels of toxins are present.
  
• 1978 - President Jimmy Carter declares a federal emergency at Love Canal. The 99th Street School is closed, and residents are evacuated.
  
• 1979 - The first Love Canal lawsuit is filed. By the end of 1979, 800-plus lawsuits seeking more than $11 billion in damages are filed.
  
• 1995 - Occidental Petroleum settles its case with the federal government, agreeing to pay $129 million to clean up Love Canal.