Burn Pits are the New Agent Orange: The Limited Circle of Concern for Pollution Victims of War

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Posted in: Human Rights

When the United States military fights protracted conflicts abroad, both combatants and civilians on both sides are likely to suffer. In addition to the obvious direct combat-related injuries and casualties, many experience unintended injuries even after the conflict ends. With the upcoming vote on legislation expanding who may receive benefits for Agent Orange exposure, I wanted to highlight the slowly expanding, but limited circle of concern for Agent Orange victims. The policy on Agent Orange provides a vivid example of the way in which domestic and foreign victims of US military action are treated differently even though they are similarly situated as to their harms. Moreover, the actions of the Department of Veterans Affairs and Congress on Agent Orange may provide some insight as to how the government is likely to treat victims of US military base burn pits, an issue just starting to work its way through Congress and the courts.

When the Department of Veterans Affairs first received claims regarding Agent Orange, it often denied them, claiming servicepeople were unable to demonstrate their exposure to the toxin or to prove a link between their exposure and their ailments. Thus, the government’s first move was to rely on scientific uncertainty. But over time, as increasing research confirmed the danger of Agent Orange, veterans organized a class action to protest widespread coverage denials. In Nehmer vs. VA, servicepeople successfully challenged the rigorous “cause and effect test” which the VA had deployed in making its determination that the only disease presumptively associated with Agent Orange was chloracne. The court sided with veterans calling for a much looser “significant statistical association test” to determine presumptive coverage for medical conditions caused by Agent Orange. Congress then passed a series of legislative fixes to enhance veteran access to benefits including the Agent Orange Act of 1991 which established a “presumption of service connection for [specific] diseases associated with herbicide exposure.” This legislation alleviated servicepersons’ burden of demonstrating individual exposure to Agent Orange and of proving the specific relationship to ailments for specified conditions and in so doing, vastly expanded the number of those able to access benefits. Since the passage of the Agent Orange Act, the VA has paid out over a billion dollars for compensation to affected veterans in addition to outlays on related health care costs.

Even with the Agent Orange Act’s expanded coverage of Vietnam veterans, many affected servicepeople were still excluded from its medical presumptions. For example, Air Force and Air Force Reservists who had worked on C-123 aircrafts used to spray Agent Orange were not included under the VA’s interpretation until June 2015. In addition, the VA crafted regulations limiting the Agent Orange Act’s coverage presumption to those who had served on Vietnamese soil or Vietnamese rivers (so called Brown Water veterans). In Haas v. Peake, the Federal Circuit upheld this “foot on the land” interpretation which excluded approximately 90,000 Blue Water Navy servicemembers. The Vietnamese soil and brown water limitation also excluded those who were exposed during service in Thailand, Cambodia, Laos, or in the Korean demilitarized zone. While the battle to include the Blue Water Navy has been ongoing for over a decade, advocates are optimistic legislation covering them as well as some of the others will finally pass, an optimism perhaps warranted by a relevant act recently clearing major legislative hurdles.

Even if this new legislation passes, some deserving Americans will still be excluded from presumptive coverage. While the new bill would add spina bifida as a presumptively covered condition for children of relevant servicepersons, many suspect this is underinclusive. Although an Agent Orange exposure registry exists to helps inform the expansion of illnesses to be covered, eligibility is limited to those who served in Vietnam, Korea, or some bases in Thailand; no such registry for the children or grandchildren of servicemembers exists despite repeated appeals via legislation. Thus, many children must attempt to individually prove the relationship of their illnesses to their parent’s or grandparent’s exposure. Relatedly, civilian contractors who assisted the military during the Vietnam War are categorically not eligible under the Agent Orange Act. That said, they are theoretically eligible for workers’ compensation under the Federal Employees Compensation Act. I say “theoretically” as government reports suggest that of the few claims that have been filed, most have been denied.

While the US government has been slow to provide compensation and health care for many Americans suffering from Agent Orange exposure, the situation is meaningfully worse for millions of Vietnamese. Not surprisingly, neither litigation nor legislation has provided much relief. Most notably, in 2005’s Vietnam Association for Victims of Agent Orange vs. Dow, district court judge Jack Weinstein concluded that while chemical manufacturers were not entitled to government contractor defenses for violations of international law and war crimes, the manufacture of Agent Orange was not such a violation and manufacturers were entitled to a government contractor defense for state-law claims. Efforts to get legislative remedies have been only marginally more successful. Decades after Operation Ranch Hand, during which the United States sprayed over 10 million gallons of Agent Orange, the US government is only just starting to clean up hot spots in Vietnam where defoliants were used in heaviest concentration. And in contrast to the over a billion dollars paid out to servicemembers, only 20 million dollars have been allocated to assist the estimated three million Vietnamese victims as repeated legislative efforts to provide more assistance have been defeated.

Of course, governments often legitimately treat citizens and non-citizens as well as domestic and foreign victims differently. For instance, governments may lawfully and morally decline to devote resources to non-citizens or foreign victims when their home governments are willing and able to assist them. Even if home governments may not act as effectively as others, states need not act if they did not cause the harm and international law does not otherwise require their assistance. But when a government is itself directly responsible for causing harm to innocent parties, even if they cause that harm in armed conflict, the difference in treatment is much more difficult to justify. For those committed to amends making for wrongdoing, even for lawful behavior, the treatment of Vietnamese civilians calls out for a stronger remedy.

This limited circle of concern for Agent Orange also sets a dangerous precedent for current and future conflict pollutants. For instance, many are describing the use of open air burn pits in recent conflicts such as Iraq and Afghanistan as the “new Agent Orange.” Troops and private contractors use burn pits to dispose of garbage on US military bases, now alleged to cause a host of respiratory, reproductive, and other serious health issues such as cancer. Yet again, the VA’s opening position was that scientific evidence didn’t establish long term health consequences for those exposed to pits.

Fortunately, it appears that coverage for burn-pit-related illnesses may come much sooner for servicepersons. In February, a Department of Labor judge determined that for purposes of workers’ compensation open air pits are linked to lung disease, paving the way for civilian contractor recoveries. While this ruling is not precedential for the VA’s purposes, it suggests a governmental willingness to engage the emerging scientific evidence. In addition, former President Obama’s promise that burn pits would not become the next Agent Orange paved the way for a voluntary veteran’s Airborne Hazards and Open Pit Registry to facilitate data collection proving the link between exposure and specific illnesses. Given the low response rate, legislators are now pressing for a mandatory registry that would record exposure rather than requiring servicemembers to opt in.

Even so, a trial court dismissed consolidated litigation against military contractor KBR for negligence, concluding that deference was owed to the executive branch’s wartime decision to use burn pits on bases. While the appeal is currently pending in the Fourth Circuit, there’s not much optimism about an appeal, leaving the VA as the sole remedy for the time being. Much like with Agent Orange prior to the Agent Orange Act of 1991, servicemembers must individually prove that their ailments, such as the types of pulmonary issues thought to be caused by burn pits, arise from military service in order to receive compensation. Veterans are now pushing for mandatory presumptions for certain illnesses similar to what occurred under the Agent Orange Act.

I worry that we may witness the same sort of limited circle of concern for various victims of burn pits—combatants, their children, contractors and civilians. While the impacts will likely be greatest for those operating the burn pits, a meaningful effect on the local population is also pretty predictable. Yet no legislation has considered the impact on locals, and media coverage has almost exclusively focused on the military.