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Dioxin and the Courts
by Robert Allen and CD Stelzer
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Attorney Gerson Smoger's success in getting to the heart of
the matter in the ongoing tragedy that is Agent Orange will
be futile if the chemical industry reacts in its normal
fashion - with obfuscation.
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One Day At The Wall
By Bud Campbell
One day last February I stood before "the wall". It was
rainy, raw and cold as only Washington can be at that time
of the year. It was my first time there. Although often in
DC, I had always made an excuse not to go there. Business,
appointments, got to catch a plane, no time, next time,
etc. Whatever, I just hadn’t gone.
At any rate I figured it was time to go say hi/good-bye to
George. The last time I had seen him was when they were
zipping him into a green body bag in Hue Stadium. Religion
not being either of our strongpoints, we wished him well on
his journey to wherever and however. We then did, what we
presumed he would have expected us to do, we went to the
club and got, what would have been described in less
politically correct times, shit faced.
Now, almost twenty five years later, here I stood at this
most unlikely of all shrines. I looked up George’s name and
location on the wall in the little stands they have on each
end of the memorial. I found his name, almost in the
center, the names are entered in order of death. I stared
at it remembering times gone by, most of them damn good
times and surprisingly most of them connected to wine,
women, and song.
I remember the luck of the draw. We were in Da Nang. We
only had the one team to cover all of I Corps. That meant
one of us in Hue, one in Da Nang, and one in Quang Ngai. We
drew straws, George "won" and went off to Hue! Three months
later we would zip him into his bag.
I remember that six short weeks before the machine gun
laced up his back, George had decided to get his act
together. No more drinking, no more carousing. Fitness was
the key. Every time I now become so inclined I remember
that George lost the last six weeks of his life doing
things he really didn’t like to do, in the interest of
being a better person. Perhaps he is. Anyway it gives me a
good excuse when good intentions try and take over.
I remembered all those things that cold miserable morning
as I stood there thinking of George, and then I started
laughing. I laughed sohard I cried. There were, as usual,
many people around, many of whom were mourning a loved one.
One and all they must have thought that I was absolutely
crazy to behave so. A kind one or two may have thought that
I was just a deranged vet who had forgotten to wear his old
jungle fatigues that day.
Whatever they thought I didn’t care. All I could think of
was how George and I would have laughed at the sight of
this old fart standing out in a cold drizzling rain getting
all misty eyed over a name on a wall!
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The matter for Smoger and his legal team is compensation
for Vietnam veterans whose exposure to the herbicide Agent
Orange, a defoliant sprayed by US forces on forest cover in
the 1960s and 1970s, continues to cause serious health
problems.
Agent Orange manufacturers have countered that they settled
the case back in the mid-1980s when a $180 million fund was
created to pay affected veterans. The settlement was
criticised from many angles but only one angle mattered -
who would compensate veterans who were not part of the
settlement, whose illnesses occurred later?
By 1997 the fund was empty and the following year Daniel
Stephenson, a helicopter pilot operating in Vietnam from
1965 to 1970, was diagnosed with bone marrow cancer that he
believed was the result of his exposure to Agent Orange. He
took legal advice and when the 2nd Circuit Court of Appeals
ruled he could argue that he was not adequately represented
in the 1984 settlement the Supreme Court was asked to
adjudicate. On Monday, June 9 the court voted 4-4, which
resulted in the automatic affirmation of the lower court's
ruling. Stephenson can now sue the manufacturers of Agent
Orange.
Smoger was thrilled with the decision and said in a
statement: "For the past nine years, we have been working
to show that the Agent Orange class action settlement
cannot stand when the very victims of Agent Orange are
entitled to no compensation from it." But his joy may well
be shortlived. Before battle can commence between veterans,
seeking to prove they were not represented by the 1984
settlement, and the manufacturers of Agent Orange, the 2nd
Circuit, which includes New York, Connecticut and Vermont,
will have to consider all the legal issues involved - and
that will take some time.
In the meantime the wider issues must not be ignored,
specifically the legacy that Agent Orange left with
veterans and more crucially with the Vietnamese people.
Agent Orange contained 2,3,7,8-tetrachlorodibenzo-p-dioxin,
the most toxic member of the family of chemicals known as
dioxin. It is a byproduct of chemical processes using
chlorine and these include pesticides, plastics, solvents,
detergents and cosmetics. Dioxin has been revealed as a
human carcinogen - a chemical whose toxicity is so strong
it can cause cancer and activate other cancers. It is also
a poison which impairs our hormonal, immune, developmental
and reproductive systems. It has been associated with heart
disease, liver damage, hormonal disruption, reproductive
disorders, developmental destruction and neurological
impairment. It has been found in human milk. It has been
linked to endometriosis but also to diabetes. It has
figured in bone and skin diseases and it has been
implicated in reduced sperm counts.
Knowledge of dioxin’s toxicity dates back to 1987 (after
the settlement), when attorneys Rex Carr and Jerome
Seigfreid took on Monsanto - one of the manufacturers of
Agent Orange - on behalf of the residents of Sturgeon,
Missouri. Evidence introduced in that case, Kemner v.
Monsanto, shows the chemical industry knew of dioxin’s
impact on human health as far back as the 1950s. Carr and
his associate lost the case because they could not prove
their clients had been poisoned by dioxin. "When we argued
the case to the jury [our clients] came into the court room
all looking healthy, all looking vital, not a damn thing
wrong with any of them," Carr said, reflecting on a case he
believed he could not lose. But lose he did because dioxin
seeps into our bodies interacting with our complex
biological systems to cause illnesses that do not become
apparent until many years have passed.
This is why the 1984 settlement was never going to be
satisfactory, and it is why dioxin as a political issue is
not going to go away. It has been estimated that
approximately 4.2 million US military personnel were
exposed to 12 million gallons of Agent Orange; it is not
known how many Vietnamese have been contaminated but Arnold
Schecter, a dioxin specialist who has tested the blood of
Vietnamese communities where Agent Orange was stored,
believes several million people are living in contaminated
areas. Despite agreeing a $1 million budget for joint US
and Vietnamese research into Agent Orange in Vietnam,
Congress says the money is for humanitarian projects and
not aid to clean up Agent Orange, or to compensate
Vietnamese who have dioxin in their blood - and in their
genes.
And now the Pandora’s box that contains the secret history
of dioxin has been opened again, leaving the Vietnamese
government to ponder whether this latest legal move
favoring US soldiers can also be applied to the Vietnamese
people.
Perhaps it is time for Congress to deal with the issue and
avoid another long and costly court battle.
- – Robert Allen is the author of The Dioxin Wars to be
published by Pluto in 2004. CD Stelzer has reported on
dioxin issues in St Louis for 20 years.
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AGENT ORANGE
In 1940 researchers isolated indoleacetic acid - the
hormone which regulates growth in plants - as part of a
programme to synthesize plant compounds. Phenoxy herbicides
have their genesis in this research. Researchers managed to
synthesize several plant growth regulating hormones.
Among these were 2,4-dichlorophenoxyacetic acid (2,4-D) and
2,4,5-trichlorophenoxyacetic acid (2,4,5-T). A bonding of
chlorine and phenol, these compounds have the same
molecular structure - 2,4,5-T differing because it contains
an extra chlorine atom.
Researchers discovered that tiny amounts of these synthetic
plant hormones were capable of stimulating plants. When
they increased the dose they learned that these synthetic
hormones could also kill. Researchers realised that each
compound had different effects on different plants. In
combination they formed a lethal weapon against unwanted
vegetation. Prompted by the twin desires of the
agricultural industry to destroy weeds and the military to
use as a biological agent, this research led to the
introduction of phenoxy herbicides as weed killers and then
as chemical weapons.
Professor E.J. Kraus, head of the Botany Department of the
University of Chicago, Illinois, had alerted the military
to the existence of these hormone-like substances. Kraus
suggested to the military that it might be interested in
"the toxic properties of growth regulating substances for
the destruction of crops or the limitation of crop
production". By 1943 Kraus was confident enough about the
properties of 2,4-D and 2,4,5-T to recommend them to a US
National Academy of Sciences committee on biological
warfare.
A year later Kraus moved to the US army's centre for
biological warfare at Camp (later Fort) Detrick. But the
plan to use 2,4-D and 2,4,5-T to destroy enemy crops was
thwarted by peace. The research, however, continued. Kraus
oversaw a programme which resulted in the screening of
approximately 1200 compounds. Eventually some of these
compounds were tested on tropical vegetation in Puerto Rice
and Thailand.
Consequently the chemical industry regarded the discovery
of these phenoxy herbicides as the greatest single advance
in the science of weed control and one of the most
significant in agriculture. In 1947 researchers discovered
that 2,4,5-T and 2,4-D affected broad-leaved plants but
left cereal crops alone. The chemical industry started its
first green revolution.
"After the war," wrote Thomas Whiteside, "many of the
herbicidal materials that had been developed and tested for
biological-warfare use were marketed for civilian purposes
and used by farmers and homeowners for killing weeds and
controlling brush."
The herbicides that became the most popular and widely used
were the most powerful - 2,4,5-T and 2,4-D. Their sale was
swiftly sanctioned by the relevant authorities. Although
the US was the largest market for these phenoxy herbicides
they were sold all over the planet. They were used as weed
killers but they were also used to defoliate railway
embankments, on awkward hedgerows to remove hardy
brushwoods, and to control weeds particularly on cereal
monocultures. Local authorities, railway and electricity
companies, farmers and gardeners all used the various
phenoxy herbicides to destroy unwanted vegetation. Between
1945 and 1963, the production of herbicides in the US rose
from 917,000 to 150 million pounds. This total virtually
trebled after 1963 with the use of these herbicides in
Vietnam.
The spraying began in January 1962. Six chemical mixtures
were used. The military named them Orange (2,4-D, 2,4,5-T);
White (2,4-D, picloram); Blue (cacodylic acid); Purple
(2,4-D, 2,4,5-T); Pink (2,4,5-T) and Green (2,4,5-T).
Purple, Pink and Green were used to defoliate mangrove and
jungle areas from 1962 to 1965 when they were replaced by
Orange and White. Blue was used from 1962 to 1971 to
destroy the stable crops of Vietnam - beans, manioc, corn,
bananas, tomato and rice.
Agent Orange comprised of almost two-thirds of the
herbicides sprayed. It was used primarily to defoliate but
it was also sprayed on broad-leaved crops. The spraying was
done from the air by C-123 planes fitted with 1000 gallon
tanks in what became known as Operation Ranch Hand.
Approximately 20,000 missions were flown. A small quantity
was hand sprayed around camps, waterways and paths. Between
July 1965 and June 1970 11.25 million gallons of Agent
Orange were sprayed in Indochina.
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