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Daily News Blog

07
Oct

Banana Workers Made Sterile from Pesticide Sue Dow in France

(Beyond Pesticides, October 7, 2019) Central American agricultural workers, exposed in the 1970s and early 1980s to a highly toxic pesticide, subsequently began suing manufacturers in the mid-1980s, with mixed success. Now, some of those workers have stepped up their game: they have brought suit against three big agrochemical industries in France to try to recover hundreds of millions of dollars in damages awarded to them by Nicaraguan courts, but never paid. As reported by The New York Times, “the case could set a legal precedent and lead to more lawsuits in France for harm done in other countries by the pesticide Nemagon.”

Farmworkers in Nicaragua, Guatemala, Costa Rica, Ecuador, Panama, the Philippines, West Africa, and the U.S. were exposed to the highly toxic, brominated organochlorine pesticide ingredient, DBCP (dibromochloropropane), from the 1960s until cessation of its use, which has varied from country to country. DBCP was sold in the pesticide products Nemagon and Fumazone as a soil fumigant and nematocide on banana plantations and other crops across Central America (especially), in western Africa, and in Hawaii.

As acknowledged by the Environmental Protection Agency (EPA), DBCP has multiple adverse health impacts: decreased sperm production and mobility, disturbed estrous cycles, reduced phagocytosis by white blood cells, and malignant tumorigenesis, as well as mutagenesis. The IARC (International Agency for Research on Cancer) has classified it as a possible human carcinogen. The headline impact on agricultural workers has been reproductive sterility: a huge number of men were sterilized by exposure to this compound — an estimated 1,500 in Costa Rica in the 1970s, and tens of thousands across all regions of use by the 1990s.

DBCP was introduced to agriculture in the U.S. in 1955; as reported by the European Environment Agency, a mere six years later, laboratory experiments showed that the compound shrank rodent testicles and greatly reduced sperm quality and quantity; still, the chemical industry marketed the pesticide, and it became a commercial success. By 1975, production had reached 25 million pounds per year, and its use had spread from the U.S. to Central America, West Africa, the Philippines, and the Caribbean.

According to EPA, until 1977, DBCP was used on more than 40 different crops in the U.S. Then, EPA suspended registration for all products containing DBCP (excepting use on pineapple crops in Hawaii) from 1977 to 1979. In 1985, the agency announced its intent to cancel all registrations for DBCP; after that, even the use of existing stocks of DBCP was prohibited. Although agricultural use of the compound was functionally banned in the U.S. in 1979, primarily for causing sterility, its use continued abroad. In Nicaragua, for example, DBCP was legal from 1973–1993. Also, U.S.-based banana and pineapple producers continued to use Nemagon through the early 1980s at their production sites in countries with poorer environmental standards.

In a pattern of corporate irresponsibility, if not actual malfeasance, now commonly recognized — think Big Tobacco, Big Fossil Fuels, Big Pharma, Big Chem — Shell (Royal Dutch Shell) and Dow Chemical were aware as early as 1958 of toxicological data from experiments on male rats demonstrating that exposure to DBCP caused reproductive anomalies, including reduced testes size at airborne exposures of 5ppm (parts per million), and at 20ppm, sterility in all subjects. (Dow Chemical merged for a time with DuPont to become DowDuPont; in spring of 2019, that company disaggregated into Dow, DuPont, and Corteva, the last of which handles the agricultural seed, trait, and chemicals strands of the business.)

Farmworkers, particularly from banana plantations, who had suffered harms from DBCP — usually sterility — began to sue manufacturers (largely Dow and Shell) and large producers, such as Dole (formerly Standard Fruit Company, now Dole Food Company). Such frontline workers most affected by the ravages of pesticide use often face a Sisyphian task in seeking legal and monetary redress for those harms, as they confront giant corporate entities that leverage enormous resources to delay, delegitimize, and defeat the “little guys.” In these DBCP cases, that list includes flat-out stonewalling on payment by industry, repeated challenges to courts’ jurisdiction in the matter, and U.S. courts punting on these cases by outright refusing to hear them.

Some examples from that fraught landscape:

  • In the 2000s, Nicaraguan courts ordered a total of $805 million in damages to be paid to hundreds of victims by Dow Chemical, Shell Oil, and Occidental Chemical (now OxyChem). The companies refused to pay, saying the courts lacked jurisdiction and had denied them fair trials. In one of those suits, in 2001, a court in Nicaragua ordered Shell, Dole, and Dow to pay $489 million to 500 male banana workers made sterile by DBCP. The companies refused to pay and counter-sued the plaintiffs for fraud, asking for $17 billion in damages. When a U.S. federal court was asked by the plaintiffs to enforce the Nicaraguan court judgment, the U.S. court refused to hear the case.
  • Similar suits were filed in 2002, 2003, 2004, 2005, and 2006.
  • In 2002, a case tried in a Nicaraguan court resolved when the judge ordered those same three companies to pay $490 million to 583 banana workers adversely affected by the use of the pesticide Nemagon (DBCP). The case was filed in Nicaragua under a law allowing any Nicaraguan worker to sue a foreign company. But Dow called the judgment “unenforceable” because the case was supposed to be moved to a U.S. court; further, defendants’ attorneys argued that the ruling was based on a Nicaraguan law criticized by its own attorney as “unconstitutional.” The companies again refused to pay.
  • A 2005 case against Dole and Dow, brought by 150 Nicaraguans for injury by DBCP from their 1970–1982 work on Dole banana plantations, was found for the plaintiffs by a Nicaraguan court, which awarded them $97 million for the sterility and psychological suffering they had endured. A U.S. District Court in Miami then reversed that judgment, saying that it “was rendered under a system which does not provide impartial tribunal or procedures compatible with the requirements of due process of law, and the rendering court did not have jurisdiction over Defendants.”
  • A California court, in 2007, ordered Dow Chemical and Dole to pay $3.3 million to Nicaraguan farmworkers who had suffered sterility due to their exposure to DBCP. The suit was one of a group of five litigations involving 5,000 agricultural workers from Ecuador, Nicaragua, Costa Rica, Guatemala, Honduras, and Panama, who were left sterile after being exposed to the pesticide.

As Beyond Pesticides reported in 2004, “For the most part, U.S. judges have argued that their courts are not the appropriate arenas for trying these cases [that originate outside the U.S.], and only four percent of the rejected cases are re-filed in other countries. Under the civil codes of most Latin American countries, plaintiffs’ rights are weaker, there are fewer jury trials and they lack strong discovery rules. Some of the cases rejected in the U.S. were heard in other countries, but there the accused corporations wield strong influence or no longer hold sizable assets.”

Taking the suit to French courts is an attempt to secure some justice — and the $805 million — for the harms the workers have suffered and for which they’ve found no remedy in Central American or U.S. courts. As The New York Times reports, the “case now has a new life half a world away in Europe, where the companies have significant assets and 1,245 former workers and relatives are looking to collect the money. While French courts have been open to hearing cases linked to human rights abuses that have occurred elsewhere, this is the first with such a large monetary award at stake.” On [September 17], a French court froze shares of Dow worth about $110 million, pending a trial scheduled for January.

Plaintiffs hope to collect at least part of that sum, per the Nicaraguan court judgments, from Dow in France, and to secure the freezing and sale of assets owned by Dow, Shell, and OxyChem in other European countries where they do business — predicated on a European Union (EU) rule that allows a court order issued in a member state to be enforced in any of the 28 EU countries.

The companies maintain that the suits that were settled — all but Dole settled in 1997 with 26,000 former banana workers in Central America, Africa, and the Philippines for $41 million; and Dole settled in 2014 with 1,700 Nicaraguan former banana workers for an undisclosed amount. The workers and families suing in France were not party to either of those suits.

Dow claims that it did not get a fair trial in Nicaragua in this lawsuit. François-Henri Briard, one of the lawyers representing the workers and their relatives, has said, “We live in a globalized world where it’s easy for multinational companies to hide assets so as not to allow justice and court orders to be enforced. This is what the U.S. companies did in Nicaragua: they poisoned people, they were sentenced by the courts, and they left without paying anything.” He argues that in such a world, victims should also be allowed to cross borders to enforce payment. Another member of plaintiffs’ counsel, Stuart H. Smith, said, “Thousands of individuals were knowingly put into the zone of risk of these pesticides after [DBCP] was banned.”

It is noteworthy that, even with all the permitted pesticides that are in use, some that have been banned sometimes end up in continued use. Often, as with DBCP, a ban in the U.S. or Europe will take effect, but the compound is permitted for far longer in other parts of the world; also, unscrupulous manufacturers sometimes look for overseas markets in which to “dump” products they can no longer sell in the U.S.

Beyond Pesticides not only advocates for a rapid transition away from chemically intensive agriculture, but also, recognizes the economic and health impacts that pesticide use inflicts on those who work (and have worked) in the fields and orchards that produce much of the world’s food. Those who are harmed by industry’s negligence or malfeasance deserve redress and compensation. Read about agricultural justice issues at Beyond Pesticides’ Agricultural Justice web page.

All unattributed positions and opinions in this piece are those of Beyond Pesticides.

https://www.nytimes.com/2019/09/19/business/energy-environment/dow-chemical-pesticide-banana-workers.html

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