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Judge Tosses Out Massive Ground Poisoning Class Action Against Dow Chemical

By Ian Millhiser  

"Judge Tosses Out Massive Ground Poisoning Class Action Against Dow Chemical"

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Earlier this year, in Wal-Mart v. Dukes, the Supreme Court drastically limited the ability of plaintiffs who all share a similar injury to join together in a class action to hold major lawbreakers accountable for their actions. Thanks to this precedent, Dow Chemical just convinced a state judge in Michigan to strip over one hundred landowners of their right to join together to hold the chemical giant accountable for poisoning their land:

Operations at Dow’s Midland plant have spread dioxin — a highly toxic and cancer-causing byproduct of the chemical manufacturing process — and other chemicals, through the Tittabawassee and Saginaw Rivers and into Lake Huron. Flooding of the rivers downstream from Dow has deposited dioxin-laden sediments on properties in the floodplain.

Sampling of floodplain properties has revealed dioxin contamination at levels thousands of times higher than allowed by Michigan and prompted state health officials to warned [sic] residents to keep children from playing in dirt near their homes, to wear masks while mowing their lawns, to avoid eating fish and livestock raised in the floodplain and to take other precautions. [...]

The plaintiffs claim that they are not able to fully use their properties because of the contamination and that their properties have lost value. [...] In an opinion released Tuesday [Judge Leopold] Borello reversed his earlier approval of class status for the group.

He said that the case met the Michigan guidelines for class standards but that the recent U.S. Supreme Court case Wal-Mart v. Dukes has created a new rules for what a group must have in common with one another in order to be considered a class.

Judge Borello’s decision to strip away Dow Chemical’s victims’ ability to bring a class action is obviously wrong, because Wal-Mart was a federal case and has nothing to do with whether a Michigan state court can certify a class action. Nevertheless, this decision is an ominous sign for Michiganders’ ability to hold corporations accountable in the future. The Michigan Supreme Court is dominated by a conservative, pro-corporate majority that could be just as eager to protect companies like Dow Chemical as the U.S. Supreme Court was to protect Walmart. So, while Judge Borello’s opinion is wrong under current law, it could also prove prescient.

If this turns out to be the case, it would be a terrible blow for the many people in Michigan who have literally been fighting Dow Chemical’s toxic legacy for decades. Without the ability to bring a class action, each owner of land poisoned by Dow will need to hire their own attorney, often with their own meager personal funds, while Dow will be able to pool its massive resources to turn armies of lawyers against their victims.

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