Here's a news flash that should come as no surprise to anyone: The black fumes that billow from the tailpipes of city busses, freight trucks and construction equipment are bad for you. If you inhale them, they could exacerbate asthma symptoms, create respiratory and cardiovascular health risks and even cause premature death.

That's not new information. But a recent report by an environmental lobbying group, the Clean Air Task Force (CATF), that attempts to quantify the health toll diesel fuel takes on America has stirred up enough attention and debate that the industry is bracing for increased attacks from the plaintiffs' bar.

The report, “An Analysis of Diesel Air Pollution and Public Health in America,” alleges 100,000 people will die prematurely over the next 25 years due to diesel pollution and that diesel exhaust poses a cancer risk 7.5 times higher than all other air toxins combined. Those scary stats have garnered quite a bit of press, and you can bet plaintiffs' lawyers are eying potential targets in the diesel industry.

The potential pool of defendants is huge. Fuel refiners, engine manufacturers, equipment manufacturers, auto manufacturers whose product lines include diesel-powered vehicles, the owners and operators of fleets of diesel-powered trucks, busses, or equipment, and individual drivers of diesel-powered vehicles are all vulnerable. The potential pool of people who could claim to have been harmed by diesel fuel pollution is even bigger.

“Diesel exhaust is very toxic and extremely widespread,” says Conrad G. Schneider, advocacy director for CATF and a co-author of the report. “You may not live next to a refinery or a paper mill, but everyone is exposed to exhaust.”

Working On The Railroad

Despite the huge number of potential deep-pocket defendants, this is a relatively new area of litigation. Only one case seeking to hold a company liable for injuries related to diesel exhaust has gone to a jury verdict so far, though several others are pending.

In that case, Missouri Pacific Railroad Co., et al. v. Navarro, a former railroad employee who had developed bone-marrow cancer sued the railroad in 1999 claiming that occupational exposure to diesel exhaust caused her disease. She presented expert testimony from four doctors who said diesel-exhaust exposure could have caused her cancer. A jury found in her favor in 2002 and awarded her $2 million.

On appeal, however, a Texas appellate court overturned the verdict on the grounds that the judge should have excluded the evidence because it was not scientifically reliable.

Michael Gibson, a partner with Jones Day in Houston who authored an extensive white paper in response to the CATF report, represented the railroad. He says the case highlights the two major problems plaintiffs will face in trying to hold the diesel industry liable for their illnesses.

First, he says most of the research that suggests diesel exhaust causes cancer and other health problems–including the CATF report's findings–is not backed with enough reliable scientific evidence to be admissible in court.

“A number of states and some federal courts have said that if the evidence doesn't establish that exposure to the pollutant at least doubles the risk of a certain illness, they're simply not going to look at that information,” Gibson says. “The authors of the leading studies in this area admit the statistical correlation between exposure to diesel exhaust and lung cancer is much weaker than that. Just a finding that if you're exposed to diesel exhaust you might or might not develop cancer is certainly not enough to make these studies admissible.”

The second major hurdle for plaintiffs to overcome is proving causation. For plaintiffs to hold a diesel fuel producer or user liable for their injuries, they will have to demonstrate that party was actually responsible for the pollution in the first place.

“How can you identify a certain defendant as responsible for air pollution?” asks Bill Anderson, a partner in the environmental practice at Winston Strawn in Washington, D.C. who represents several clients with ties to the diesel industry. “It's very hard to make the case that a certain company's pollution is the specific source of someone's injury.”

Gibson agrees. “Outside an occupational exposure context it's difficult to pin the blame on one source of exhaust,” he argues.

Gathering Clouds

The difficulties of winning negligence claims against diesel producers and users doesn't mean the plaintiffs' bar will just roll over. The much more likely scenario is that it will get creative.

Public nuisance is a possible alternative route for plaintiffs to bring these cases. These wouldn't be big-dollar, multi-plaintiff cases, but rather cases brought by individuals whose enjoyment of their property is hampered in some way by diesel exhaust pollution.

“If you can pinpoint a source of pollution, such as a bus depot or train station right next to where you live, you might have an easier time proving your case,” Gibson says. “These claims will rely on violations of local environmental standards.”

The success or failure of a pending public nuisance suit that Connecticut and several other states recently brought against companies they say emit too much CO₂ will have a big impact on diesel-exhaust plaintiffs' future ability to win public nuisance claims.

“Although [the Connecticut] plaintiffs aren't seeking damages, their suit will test the limits of public nuisance law,” Anderson says. “If the plaintiffs succeed, it could certainly open the door for private plaintiffs to seek damages against companies they claim are responsible for air pollution.”

Nuisance claims remain a tough sell to most courts. Any claim of public nuisance is evaluated on a balancing standard: The court considers whether the nuisance is so outrageous that it outweighs the rights of the party against which the claim is being brought. That is a difficult argument to win.

“When you're balancing the efficient transport of products against enjoyment of property, there's no clear winner,” Anderson says. “I don't doubt that

plaintiffs might try such a theory, but it's difficult to win.”

A possible way for a plaintiff to beef up a nuisance claim would be to bring the suit under the scope of an environmental justice claim. “Environmental justice” is the EPA mandate that people of all races and incomes, living in all areas of the country have an equal right and ability to enforce environmental laws and regulations.

“People in inner city neighborhoods that are disproportionately affected by truck and bus traffic might have some success in a context where a public nuisance suit could work by bringing an environmental justice claim,” Anderson says. “But it's still quite a stretch.”

Clearing The Air

Despite the potential liabilities that could arise as plaintiffs' lawyers try to bring forth clients, there's a risk in over-reacting to the problem as well.

“People are giving the CATF report a lot more credence than it might be due, both on the side of the importance of the report itself and the possible fallout from it,” says Allen Schaeffer, executive director of the Diesel Technology Forum, an industry group whose members include auto and engine manufacturers, petroleum refineries, and developers of emissions-control devices. “CATF probably won't get the results it hoped for.”

Even environmental advocates don't see the issue as all gloom and doom for the diesel industry.

“It would be misguided to look at our report and think there's going to be a rush to the courthouse,” Schneider says. “Defense firms are trying to fan the flames of fear and position themselves as go-to guys.”

The best advice may be not to dwell on the potential litigation risks lurking on the sidelines, but just to go forward in compliance with federal and local regulations, and to work with regulators to mitigate a health problem that certainly is not going away. To a large extent, Schneider says, the industry is already doing this.

“The real risk to the diesel industry is that it could inadvertently step into the shoes of the tobacco industry if they try to sidestep regulation and deny the harmful effects of exhaust pollution, but as a whole the industry is making positive strides,” he says. “Without admitting any of the health impacts, the industry has been supportive of retrofitting engines to reduce emissions now and has voiced support for the Diesel Emissions Reduction Act. That's a much more positive dynamic.”

Here's a news flash that should come as no surprise to anyone: The black fumes that billow from the tailpipes of city busses, freight trucks and construction equipment are bad for you. If you inhale them, they could exacerbate asthma symptoms, create respiratory and cardiovascular health risks and even cause premature death.

That's not new information. But a recent report by an environmental lobbying group, the Clean Air Task Force (CATF), that attempts to quantify the health toll diesel fuel takes on America has stirred up enough attention and debate that the industry is bracing for increased attacks from the plaintiffs' bar.

The report, “An Analysis of Diesel Air Pollution and Public Health in America,” alleges 100,000 people will die prematurely over the next 25 years due to diesel pollution and that diesel exhaust poses a cancer risk 7.5 times higher than all other air toxins combined. Those scary stats have garnered quite a bit of press, and you can bet plaintiffs' lawyers are eying potential targets in the diesel industry.

The potential pool of defendants is huge. Fuel refiners, engine manufacturers, equipment manufacturers, auto manufacturers whose product lines include diesel-powered vehicles, the owners and operators of fleets of diesel-powered trucks, busses, or equipment, and individual drivers of diesel-powered vehicles are all vulnerable. The potential pool of people who could claim to have been harmed by diesel fuel pollution is even bigger.

“Diesel exhaust is very toxic and extremely widespread,” says Conrad G. Schneider, advocacy director for CATF and a co-author of the report. “You may not live next to a refinery or a paper mill, but everyone is exposed to exhaust.”

Working On The Railroad

Despite the huge number of potential deep-pocket defendants, this is a relatively new area of litigation. Only one case seeking to hold a company liable for injuries related to diesel exhaust has gone to a jury verdict so far, though several others are pending.

In that case, Missouri Pacific Railroad Co., et al. v. Navarro, a former railroad employee who had developed bone-marrow cancer sued the railroad in 1999 claiming that occupational exposure to diesel exhaust caused her disease. She presented expert testimony from four doctors who said diesel-exhaust exposure could have caused her cancer. A jury found in her favor in 2002 and awarded her $2 million.

On appeal, however, a Texas appellate court overturned the verdict on the grounds that the judge should have excluded the evidence because it was not scientifically reliable.

Michael Gibson, a partner with Jones Day in Houston who authored an extensive white paper in response to the CATF report, represented the railroad. He says the case highlights the two major problems plaintiffs will face in trying to hold the diesel industry liable for their illnesses.

First, he says most of the research that suggests diesel exhaust causes cancer and other health problems–including the CATF report's findings–is not backed with enough reliable scientific evidence to be admissible in court.

“A number of states and some federal courts have said that if the evidence doesn't establish that exposure to the pollutant at least doubles the risk of a certain illness, they're simply not going to look at that information,” Gibson says. “The authors of the leading studies in this area admit the statistical correlation between exposure to diesel exhaust and lung cancer is much weaker than that. Just a finding that if you're exposed to diesel exhaust you might or might not develop cancer is certainly not enough to make these studies admissible.”

The second major hurdle for plaintiffs to overcome is proving causation. For plaintiffs to hold a diesel fuel producer or user liable for their injuries, they will have to demonstrate that party was actually responsible for the pollution in the first place.

“How can you identify a certain defendant as responsible for air pollution?” asks Bill Anderson, a partner in the environmental practice at Winston Strawn in Washington, D.C. who represents several clients with ties to the diesel industry. “It's very hard to make the case that a certain company's pollution is the specific source of someone's injury.”

Gibson agrees. “Outside an occupational exposure context it's difficult to pin the blame on one source of exhaust,” he argues.

Gathering Clouds

The difficulties of winning negligence claims against diesel producers and users doesn't mean the plaintiffs' bar will just roll over. The much more likely scenario is that it will get creative.

Public nuisance is a possible alternative route for plaintiffs to bring these cases. These wouldn't be big-dollar, multi-plaintiff cases, but rather cases brought by individuals whose enjoyment of their property is hampered in some way by diesel exhaust pollution.

“If you can pinpoint a source of pollution, such as a bus depot or train station right next to where you live, you might have an easier time proving your case,” Gibson says. “These claims will rely on violations of local environmental standards.”

The success or failure of a pending public nuisance suit that Connecticut and several other states recently brought against companies they say emit too much CO₂ will have a big impact on diesel-exhaust plaintiffs' future ability to win public nuisance claims.

“Although [the Connecticut] plaintiffs aren't seeking damages, their suit will test the limits of public nuisance law,” Anderson says. “If the plaintiffs succeed, it could certainly open the door for private plaintiffs to seek damages against companies they claim are responsible for air pollution.”

Nuisance claims remain a tough sell to most courts. Any claim of public nuisance is evaluated on a balancing standard: The court considers whether the nuisance is so outrageous that it outweighs the rights of the party against which the claim is being brought. That is a difficult argument to win.

“When you're balancing the efficient transport of products against enjoyment of property, there's no clear winner,” Anderson says. “I don't doubt that

plaintiffs might try such a theory, but it's difficult to win.”

A possible way for a plaintiff to beef up a nuisance claim would be to bring the suit under the scope of an environmental justice claim. “Environmental justice” is the EPA mandate that people of all races and incomes, living in all areas of the country have an equal right and ability to enforce environmental laws and regulations.

“People in inner city neighborhoods that are disproportionately affected by truck and bus traffic might have some success in a context where a public nuisance suit could work by bringing an environmental justice claim,” Anderson says. “But it's still quite a stretch.”

Clearing The Air

Despite the potential liabilities that could arise as plaintiffs' lawyers try to bring forth clients, there's a risk in over-reacting to the problem as well.

“People are giving the CATF report a lot more credence than it might be due, both on the side of the importance of the report itself and the possible fallout from it,” says Allen Schaeffer, executive director of the Diesel Technology Forum, an industry group whose members include auto and engine manufacturers, petroleum refineries, and developers of emissions-control devices. “CATF probably won't get the results it hoped for.”

Even environmental advocates don't see the issue as all gloom and doom for the diesel industry.

“It would be misguided to look at our report and think there's going to be a rush to the courthouse,” Schneider says. “Defense firms are trying to fan the flames of fear and position themselves as go-to guys.”

The best advice may be not to dwell on the potential litigation risks lurking on the sidelines, but just to go forward in compliance with federal and local regulations, and to work with regulators to mitigate a health problem that certainly is not going away. To a large extent, Schneider says, the industry is already doing this.

“The real risk to the diesel industry is that it could inadvertently step into the shoes of the tobacco industry if they try to sidestep regulation and deny the harmful effects of exhaust pollution, but as a whole the industry is making positive strides,” he says. “Without admitting any of the health impacts, the industry has been supportive of retrofitting engines to reduce emissions now and has voiced support for the Diesel Emissions Reduction Act. That's a much more positive dynamic.”