Nobody in Alabama stands alone.The state’s citizens are inextricably tied to the workings of industry and government, from the companies that make our products, to the laborers they employ, to the lawmakers and lobbyists who represent these interests, not always to the public’s benefit.
Alabama’s quality of life is determined in large part by the fairness of its laws. When those laws fail to protect the poor and the powerless against the abuses of the politically connected, iniquity is the result.
Through more than 150 interviews in the United States and Canada and a study of state, federal, court and corporate documents, The Anniston Star’s continuing series "What’s a life worth?" has examined what can happen when fairness becomes a casualty of corporate profits. From the exploitation of factory workers to widespread contamination of the environment, the stories identified five areas which government leaders could address to bring the system back into balance.
The series’ final installment asks key leaders from around the state and nation — from legislators and administration officials to environmentalists and industry leaders — to weigh in on these goals in the name of restoring fairness to all.
ASBESTOS
Ensuring victims of asbestos exposure receive fair representation under the law tops the list. If congressional legislation to compensate victims passes in its current form, these victims could find themselves cut off from compensation.
The Fairness in Asbestos Injury Resolution Act would create a $140 billion trust fund for people with asbestos-related illnesses, and has the potential to save business interests millions of dollars in damages.
In return for the right to apply to the fund, victims yield the right to sue asbestos manufacturers in state and federal court.
So far, the legislation has foundered upon divisions between asbestos and insurance companies, which generally support the bill, and labor unions and trial lawyers who oppose it.
Quoting from a prepared statement, Mike Heimowitz, a spokesman for a manufacturers’ coalition called the Asbestos Alliance, said the asbestos-disease epidemic has hampered the economy, forcing as many as 80 companies into bankruptcy, destroying thousands of jobs, jeopardizing retirements and making recovery by the injured more difficult.
"Passage of legislation will have an immediate, positive impact on our nation’s economy, while helping asbestos claimants and their families, workers and retirees," Heimowitz said, adding that although amendments are needed to perfect the bill, it should be brought to the Senate floor by 2006.
Trial lawyers and unions, however, say the bill is rife with problems.
"The proposal is unfair to victims, under-funded to compensate current and future victims, unmanageable in terms of the bureaucracy it would create, and likely unconstitutional" because it treats similar victims differently depending on where they live, said Carlton Carl, spokesman for the Association of Trial Lawyers of America.
According to a Congressional Budget Office analysis, the legislation could fall as much as $10 billion dollars short of the amount necessary to compensate victims. Another study by the economics consulting firm Bates White has found the fund could fall $40 billion to $65 billion short.
The problem, the studies say, is that it’s hard to know just how many people will file for claims.
"The issue is that the adequate compensation of victims who have been poisoned by asbestos through no fault of their own should come first," Carl said. "This should be the guiding principle in the discussion, not, as unfortunately some members of Congress have done, putting the willingness of certain asbestos companies and their insurers first."
U.S. Sen. Jeff Sessions, R-Mobile, echoed him.
"I think the voices that are suggesting that there will not be enough money to make this trust fund successful did hurt, and that remains a matter that needs to be examined," Sessions said. "I frankly think it’s probably exaggerated, I think there may be enough. I’d be surprised if this isn’t close to enough money to pay for all the benefits that are in the bill."
But if the studies are true, the Senate Judiciary Committee — of which Sessions is a member — will have to start over, he said.
In addition, the defendant companies and their insurers disagree on the amount each is willing to contribute to the fund, Sessions said. "But let me tell you why we can’t just listen to these companies. What the companies are concerned with is only how much they pay out and how much it impacts their bottom line. What’s important is that we ensure that the money that gets paid out by the companies gets to the people who need it. Not to people who are not sick, and not to lawyers."
Studies by Rand Corp. and other research groups have shown that attorneys’ fees and other costs of litigation consume nearly 60 percent of plaintiffs’ awards.
"That’s to me what’s intolerable, and that’s to me what we as public servants have to deal with," Sessions said. "With 10 percent legitimate overhead and 50 percent to play with, we ought to be able to direct very generous amounts of money to those people who are sick. I think we have a moral responsibility."
With a U.S. Supreme Court seat still open and support for the asbestos bill eroding, the legislation may not come before the Senate until 2006, Sessions said.
WATER PIPE
In Alabama and elsewhere, the risk of asbestos exposure exists not just in homes and schools that were built with the flame-resistant material prior to the early 1980s, but every time residents turn on the tap.
At last count, 81 water systems in Alabama contain asbestos-cement pipe in dozens of counties, including Cleburne, Clay, Etowah, Shelby and St. Clair.
Yet nobody tests these water systems to see if asbestos leaks into the drinking water, state environmental and health records show. Alabama Department of Environmental Management officials waived Environmental Protection Agency testing requirements in 1995 after commissioning an informal study of seven of the asbestos-pipe water systems. The study gave the systems clean marks regarding asbestos contamination, but no testing has been done since.
Jerome Hand, an ADEM spokesman, said the pipe hasn’t presented a worry in the past because the primary method of exposure is by inhaling fiber from the air. But, he added, the agency might revisit the issue.
"We are evaluating if it’s appropriate to test systems with asbestos-cement pipe," Hand said. "We’ve found in the past no problems with this kind of pipe."
ADEM’S BUDGET
But ADEM has slashed the number of inspectors in several branches to keep pace with budget cuts. With a state contribution that amounts to about $1 per resident, ADEM is the lowest-funded environmental agency in the Southeast and one of the lowest funded in the nation, comparisons of state budget analyses in Alabama and neighboring states show.
As a result, landfill inspections have dropped by more than two-thirds in the last five years; Alabama recently ranked second in the nation for the number of illegal wastewater discharges greater than 500 percent of the federal limit; and the state has more extinct species than any other state except Hawaii. Local industries, meanwhile, released more than 120 tons of carcinogens into Calhoun County last year.
ADEM officials and state legislators are well aware of the problem but feel powerless to change it. As long as a majority of state lawmakers oppose revenue increases, the agency will remain inadequately funded, said Rep. John Knight, chairman of the House Appropriations Committee.
"The problem that ADEM has is that it has to compete against Medicare, prisons, children’s programs, mental health," said Knight, D-Montgomery. "When you put ADEM up against those agencies, then those agencies are going to be first every time."
Knight has introduced measures such as an income-tax bill that would bring in more revenue. But many elected officials oppose that measure, as well as other ADEM-specific increases, because they wish to avoid the "tax and spend" label come election time, Knight said.
"If the people of this state want to maintain the same level of revenue in this state or keep up with inflation, you’re going to need an additional revenue source," he said. "And it’s a real disservice to the people of this state for anybody running for political office to pretend as if money is not needed, especially when some of these people were in elected office and came with their hands out asking for money every election cycle."
OVERSIGHT
Not all of ADEM’s woes can be traced to an insufficient budget. The agency is organized in a way that invites inefficiency, said Jim Williams, executive director of the Public Affairs Research Council of Alabama.
Most state environmental agencies separate their administrative, regulatory and appeals processes, much as the federal government does its executive, legislative and judicial branches.
In Alabama, however, the Environmental Management Commission, which governs ADEM, drafts the agency’s regulations and decides appeals to enforcement actions. Critics say that puts it in the position of judging the fairness of its own rules.
This has led to numerous conflicts of interest and hobbled the agency’s effectiveness, Williams said. As judges, board members can’t talk to people involved in cases, but as policymakers, they really need to.
"They’re put in a position of kind of being judge, jury and executioner," he said. "Sometimes it’s better to have some separation there."
In addition, the Environmental Management Commission, not the governor, appoints ADEM’s director, which could reduce ADEM’s ability to make its concerns known during budgeting, PARCA reports.
A related concern involves the power of special interests in Montgomery. With control over more than half of the 500 registered lobbyists, business interests dominate the legislative process, striking down any bills that would increase money and power for state agencies, including ADEM.
"I think ADEM is hamstrung by certain special interest groups that don’t necessarily favor a strong watchdog," said Sen. Roger Bedford, D-Russellville, who chairs the Senate Finance and Taxation Committee.
Reformers say the influence of these special interests could diminish if legislators ceded more "home rule" powers, such as taxing and zoning authority, to county governments.
"All of those items are symptoms of a bigger problem, a similar problem to getting a new constitution, tax reform and all those sorts of things," said Mark Johnston, president of the ADEM Reform Coalition. "They are symptoms of the fact that there are a few powerful people that have a lot of interest who don’t want ADEM to have more money because they’re afraid."
ENFORCEMENT
ADEM’s problems aren’t falling on deaf ears. The agency and its governing board have crafted a strategic plan to make ADEM "the nation’s premier environmental agency."
The plan marks several areas for improvement, including increased communication with the public and media, the governor and legislators.
ADEM has held a number of community meetings around the state to gauge public opinion, and gather input.
"Not too many agencies or commissions expose themselves in that way," said Pat Byington, an ecologist and member of the Environmental Management Commission. "I’m a big fan of that. I think we should hold meetings with the public continually."
ADEM also needs to reform its enforcement practices, the strategic plan says. The U.S. Environmental Protection Agency and ADEM have found the agency’s penalty process allows too much time to pass between warnings, provides only a vague explanation of enforcement options, and leaves records incomplete.
Some areas, such as the agency’s budget, won’t improve without legislative action, and the agency has drafted several revenue-generating bills with this in mind, including legislation to generate tipping fees at state landfills.
ADEM Director Trey Glenn said he will push for the bill’s passage and budget increases in the upcoming legislative session. But he knows the competition for limited state funding in Montgomery will be stiff.
"I’m not alone there, and so I do not envy our legislators," Glenn said. "They have a very difficult job trying to allocate the limited resources we have."
Which means ADEM must do more with what it has, Glenn and others said.
"No one’s going to invest in any agency if they don’t have a plan," Byington said. "My hope has always been that the strategic plan lays out a vision and instills confidence in our legislators to fund this agency in an adequate manner.
"We’re showing the public direction, but we’re also opening ourselves up to the public, saying, ‘Let’s talk. Let’s do the best job we can do.’ "
