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Instigating Public Health Set-Asides: Deepwater Horizon as a Model

Beitsch, Leslie M. MD, JD; Goldstein, Bernard D. MD; Buckner, Ayanna V. MD, MPH

Journal of Public Health Management and Practice: November/December 2017 - Volume 23 - Issue - p S5–S7
doi: 10.1097/PHH.0000000000000616
Editorials
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Department of Behavioral Sciences and Social Medicine, Florida State University College of Medicine, Tallahassee, Florida (Dr Beitsch); Graduate School of Public Health, University of Pittsburgh, Pittsburgh, Pennsylvania (Dr Goldstein); and Community Health Cooperative, Atlanta, Georgia (Dr Buckner).

Correspondence: Leslie M. Beitsch, MD, JD, Department of Behavioral Sciences and Social Medicine, Florida State University College of Medicine, 1115 West Call St, Tallahassee, FL 32306 (les.beitsch@med.fsu.edu).

The Gulf Region Health Outreach Program was developed jointly by BP and the Plaintiffs' Steering Committee as part of the Deepwater Horizon Medical Benefits Class Action Settlement, which was approved by the U.S. District Court in New Orleans on January 11, 2013, and became effective on February 12, 2014. The Outreach Program is supervised by the court and is funded with $105 million from the Medical Settlement.

The authors declare no conflicts of interest.

It has often been stated emphatically that you cannot solve problems simply by throwing money at them. Yet that aphorism may not hold true for public health—since it has seldom been tested. On a grander scale, perhaps the best example has been the Tobacco Master Settlement Agreement, which led to the formation of the American Legacy Foundation. Pointedly, even this exemplar must be qualified, given its underlying basis was premised upon Medicaid costs to care for smokers, and that only $25 million of the $25 billion settlement went to Legacy, or 0.1%.1,2 Moreover, the vast majority of state dollars derived from the agreement have gone to roads, bridges, and tax reductions, with literally 2% directed at preventing the impact of tobacco.3 Arguably, this makes the medical settlement stemming from the Deepwater Horizon disaster stand out, with $105 million dedicated to building resilience among underserved communities severely impacted by the oil spill—populations already adversely affected by Hurricane Katrina and countless less well-known environmental catastrophes and economic setbacks that were superimposed on long-standing poor health outcomes including high rates of cancer, heart disease, stroke, obesity, and diabetes.1

Unlike other components of the medical settlement, Gulf Region Health Outreach Program (GRHOP) is not involved in the direct compensation of victims of the Deepwater Horizon for specific injuries or losses. Instead, it represents a unique attempt by the American judicial system to impact broader community health issues not readily addressed via mechanisms of the usual toxic tort litigation aimed at recompensing individuals following a disaster. The GRHOP is intended to improve factors improving community health resilience. Although community resources can be bolstered by tort compensation of directly affected individuals, there is evidence that standard adversarial litigation tactics and seemingly interminable delays before payment is received can have adverse psychological impacts on the involved individuals and their communities.4,5

Judge Barbier of the US District Court interpreted those eligible for the medical settlement in broad terms, essentially all residents of the geographically affected areas. The legal remedy: “...the Gulf Region Health Outreach Program, which is intended ‘to expand capacity for and access to high quality, sustainable community-based healthcare services, including primary care, behavioral and mental health care, and environmental medicine, in the Gulf Coast.'”6 The specific components of the GRHOP are described elsewhere in this special issue.7 In addition, Judge Barbier recited this rationale for the medical settlement:

The Gulf Region Health Outreach Program will complement existing efforts being undertaken by the public health community by bringing together local community leaders, health professionals, and residents to understand the health needs and existing capacities of coastal communities across the Gulf.... Gulf Region Health Outreach Program is expected to have a rapid, positive impact, with benefits that will be felt not just for the next five years, but long thereafter.6

In simple terms, the GRHOP is about health and social equity.

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Justification for Public Health Set-Asides

There are centuries of legal precedent to establish the doctrine that those injured by the actions of others deserve redress, a precept embedded in the modern concept of torts. Typically, the injured party is made “whole” through monetary damages. But payments to injured individuals may not sufficiently compensate for the collective harm. Reimbursing adversely affected businesses and employees for lost earnings makes sense and is sound public policy. However, when the community is also the victim, novel mechanisms for catalyzing the community's healing as a recovery strategy are called for under torts theory of also making it whole. This is precisely the same rationale suggested by Judge Barbier.

Environmental laws also may offer some guidance. In the past, the US Environmental Protection Agency has resolved compliance actions (that is failure to comply with environmental laws) by reaching settlement agreements. So-called supplemental environmental settlements allow for projects that focus directly on an activity that mitigates the original harm. Settlement projects can be completed at the site of the violation or elsewhere in geographic proximity or may be specific to reversing the pollution source. Recently, such actions are occurring with greater regularity, indicating an increased frequency of such supplemental projects over time. This movement toward a concept of restoration, equity, or wholeness is much in synchrony with GRHOP.

On a private enterprise level, Duke Energy was found to be the culprit in multiple violations of US Environmental Protection Agency regulations at 25 coal plants. In a case that dragged out over several years, Duke agreed to earmark $4.4 million for a variety of mitigation projects related in some fashion to the impact that particle pollution from coal plants has on the environment.8 In a case with greater public visibility, following a The New York Times op-ed by 2 Johns Hopkins Bloomberg School of Public Health faculty urging Volkswagen to replace dirty school buses,9 the US government's case against Volkswagen produced an agreement whereby Volkswagen set aside $2.7 billion that will benefit state, tribal, and territorial efforts to reduce nitrous oxides in the atmosphere.10 The company's mitigation efforts, including the opportunity to replace polluting school buses, will be administered through a trust fund. Another common environmental problem, pipeline safety, spawned the creation of an independently run organization dedicated to pipeline safety, the Pipeline Safety Trust, which derived from a settlement, following a tragic pipeline explosion in Bellingham, Washington. These projects all share in common their capacity to improve human health by controlling pollutants or lessening the likelihood of adverse events. Yet as far as we are aware, the GRHOP program is the first to specifically call for projects directed toward improving human health in affected communities—irrespective of the cause.

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Implications

While the next major disaster may not be predictable, the likelihood of one occurring soon is highly foreseeable. Recalling the lessons of the master tobacco settlement, few states earmarked those resources for the prevention of the very harm produced by the sale and use as intended of nicotine delivery devices (although Oklahoma and Florida among others are notable exceptions). Drawing from the precedent of the US Environmental Protection Agency, there must be a clear relationship between the harm or tort and any proposed remedy. Rather than dollars or penalties alone, specific programs and activities causally linked by evidence to the impact of the adverse action should be agreed upon and incorporated into the judicial order. This could include concerted efforts to reverse social determinants that impede sustainable health gains. Program responsibility, similarly an issue with a mixed track record in the tobacco settlement (teen smoking prevention programs sponsored by the tobacco manufacturers cynically led to recruitment of teen smokers), should be placed in the hands of public health experts who have a stake in the outcome. Oversight by a committed group of content experts and public health professionals on the ground ensures accountability and minimizes external influences.

In nonhyperbolic terms, governmental public health is facing extreme challenges at every jurisdictional level (federal, state, local, and tribal). Approaching disasters and potentially even more traditional problems with novel tools that can be deployed against those with deep pockets who actually contribute to or exacerbate existing inequities of health may place public health strategists in a better position to catalyze community development in the transition to public health 3.0.11

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References

1. Deepwater Horizon Medical Benefits Class Action Settlement Agreement. New Orleans, LA: U.S. Eastern District of Louisiana; 2012.
2. Tobacco Master Settlement Agreement. http://http://www.publichealthlawcenter.org/sites/default/files/resources/master-settlement-agreement.pdf. Published 1998. Accessed March 6, 2017.
3. Carr T. Who is really benefiting from the tobacco settlement money? http://http://www.lung.org/about-us/blog/2016/02/who-benefit-tobacco-settlement.html. Published 2016. Accessed March 3, 2017.
4. Picou JS. When the solution becomes the problem: the impacts of adversarial litigation on survivors of the Exxon Valdez Oil Spill. Univ St Thomas Law J. 2009;7:68–88.
5. Hari M, Osofsky KB-K, Bradley H, et al Environmental justice and the BP Deepwater Horizon Oil Spill. N Y U Environ Law J. 2012;20(99). http://scholarship.law.umn.edu/faculty_articles/415/. Accessed May 5, 2017.
6. ORDER AND REASONS (Granting Final Approval of the Medical Benefits Class Action Settlement) In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010. New Orleans, LA: U.S. District Court Eastern District Of Louisiana; 2013.
7. Buckner A, Goldstein BD, Beitsch L, Hansel T, Lichveld M, Ososfsky H. Building resilience among disadvantaged communities: GRHOP overview. J Public Health Manag Pract. 2017. In press (GRHOP Supplemental Issue).
8. Duke Energy Corporation Clean Air Act (CAA) Settlement consent decree: US Environmental Protection Agency. http://www.epa.gov/enforcement/duke-energy-corporation-clean-air-act-caa-settlement. Published March 6, 2017. Accessed April 4, 2017.
9. Sharfstein JM, Phillips F. VW, replace dirty school buses. New York Times. January 1, 2016.
10. Volkswagen Clean Air Act Partial Settlement: US Environmental Protection Agency. http://www.epa.gov/enforcement/volkswagen-clean-air-act-civil-settlement. Published March 6, 2017. Accessed April 12, 2017.
11. DeSalvo K, O'Carroll P, Koo D, Auerbach J, Monroe J. Public health 3.0: time for an upgrade. Am J Public Health. 2016;106(4):621–622.
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