This post is the last in our three-part series about what manufacturers can expect in 2017. In my humble opinion, we saved the best for last – Environmental, Health & Safety.
With increasing awareness of environmental issues and advancing monitoring technologies comes a rise in citizen science. Citizens—be it a single person or a community group—are increasingly relying on their own data and devices to evaluate a host of environmental and product issues. Readily available and portable monitoring technology allows citizens to test the air at a factory fence line, water discharges, even product contents, in a quick and efficient manner.
While many citizens are not actually using this data to bring lawsuits, they are at least using it to for screening purposes. The citizen-gathered data may lack the reliability that comes from professionally collected data, but it is not entirely inaccurate. At the very least, citizens are and will continue to use this data as a negotiating tool, and it may lead to the collection of further—and more reliable—data that may be presented to a government agency or used against manufacturers in a lawsuit.
Novel Theories of Liability for Manufacturers
We all know that there is an extensive network of environmental laws in the United States that, for a number of environmental problems, defines unlawful behavior, the liable parties, and even the policies and procedures to remedy a potential problem. But when that network of environmental laws does not provide a satisfactory solution, public entities have not hesitated to turn to alternative methods to protect human health and the environment. We have previously reported on the cases being advanced by a number of west coast cities against Monsanto Company, alleging that Monsanto created a public nuisance solely by manufacturing polychlorinated biphenyls (PCBs). And a California court has already held lead pigment manufacturers liable for creating a public nuisance by manufacturing lead pigment, which was subsequently used to manufacture lead paint, which was subsequently used in buildings throughout the state.
If the laws and regulations do not provide a mechanism to bring a claim against a manufacturer, the question of legal liability will not stop there. In 2017, we can expect manufacturers to be subject to claims for liability, perhaps from where we least expect it.
Increased Visibility of Violations, Worker Injuries and Illnesses
It is 2017, and the federal government is finally making its way into the digital age. Across the board, more agencies are requiring electronic submission of information, and they also plan to publicize this information electronically. From environmental permit monitoring requirements to Occupational Safety and Health injury and illness reports, 2017 will usher in increased visibility of a company’s data and information. The agencies have all announced varying rationales for this increased transparency, from nudging business towards better health and safety practices to increasing public outcry. But whatever the motive, with increased information will likely come increased enforcement.
Rise of NGO Enforcement
It goes without saying that it is hard to crystal ball where we will be in the regulatory arena a year from now. Just yesterday, President Trump signed an executive order announcing that, for every new regulation, any agency must identify at least two existing regulations to be repealed. While we have yet to see this order implemented, it is clear that this administration is intent on reducing regulations across the board.
A reduction in regulations, however, will not necessarily mean a lack of enforcement; it may just mean a change in the enforcer. Since Trump’s victory, money has been pouring in to non-governmental organizations (NGOs) aimed at protecting the environment. These organizations may face legal challenges in the face of a lax regulatory environment, but we can expect them to get creative with novel legal theories to protect the environment. And while many of these theories will likely be advanced against the current administration, the business community will be part of the mix as well.