Air Date: Week of August 20, 1993

John Kalish profiles New York lawyer Victor Yannacone, one of the founders of the Environmental Defense Fund and a pioneer in the field of environmental litigation. From lawsuits over DDT in the 1960's to Agent Orange battles to disputes over incinerator ash, Yannacone is acknowledged as one of the most thorough — and abrasive — figures in environmental law.

Transcript

CURWOOD: Few things have helped turn old "conservation" activism into the modern environmental movement more than litigation. Lawsuits forced a halt to massive logging in the nation's old-growth forests, and the cleanup of waterways, including Boston Harbor. And there are few people who have been more instrumental in the history of environmental law than Victor Yannacone. Yannacone is a feisty - some might say abrasive - lawyer from Long Island, who fought a groundbreaking crusade against the pesticide DDT in the 1960's, and helped start the Environmental Defense Fund. He found himself back in the spotlight in the '80's when he led a major lawsuit for Vietnam veterans exposed to the defoliant Agent Orange. Reporter Jon Kalish has followed Yannacone's career, and has this profile.

KALISH: In the spring of 1966, Victor Yannacone was working in the family law practice when his wife Carol, who taught science in a parochial school, saw a fish kill in a lake on Long Island caused by the pesticide DDT. She asked her husband to sue the local mosquito control commission, which was responsible for the DDT contamination of the lake. He did, and won a local ban of the pesticide. For the next three years, Yannacone waged a courtroom war against DDT until it was banned across the country. It was Victor Yannacone's first splash in environmental law, and the national spotlight.

YANNACONE: I was there in 1966 when everyone had given up hope, when Rachel Carson had been Stalinized out of science and 'better living through chemistry' was the watchword of industry. As a result of the fortuitous confluence of propitious circumstances I was able to make a substantial contribution to arousing a political awareness of the value of environmental considerations.

KALISH: Yannacone brought an awesome grasp of science and medicine into the legal battle. During one DDT trial in Wisconsin in 1968, Yannacone stunned a biologist who came to testify on DDT's effect on the entomophagous wasp. The biologist had sent Yannacone a list of more than 160 scientific papers about the insect, and was flabbergasted to learn than Yannacone had read every one. Such thorough preparation appears to be inherited: Yannacone's father, a legendary worker's comp lawyer, won a number of landmark cases by reading everything in the scientific literature about a chemical or disease. Yannacone's father also taught him how to use his opponents' expert testimony to build his own case.

YANNACONE: In certain areas of the law the only real experts are the individuals usually employed by the manufacturer or the principal user of the product. And all we did was ask questions which any honest scientist would answer fairly and built the case literally out of the information supplied by experts for our adversaries. And that's been the policy of my practice ever since my father taught it to me back in 1959.

MORAN: Victor Yannacone and his wife Carol helped found the Environmental Defense Fund in 1967. It was the dawning of a new era of environmental consciousness. For the first time, ecological activists started taking their cases to court, following the example of the civil rights movement. As EDF's staff counsel, Yannacone won several major environmental victories, including the first air pollution case brought in an American court. But his victories came at a high price. Yannacone was deemed a poor team player and some saw him as an abrasive egomaniac. He was fired after just one year at the EDF. Shortly after he left, Yannacone won what he still considers his crowning legal achievement: the public right to stop private development that threatens natural resources, a right he won by invoking 16th-century British legal doctrine to save fossil beds in Montana. For most of the 1970's Yannacone was out of the national spotlight . But in 1979 he was asked to file a lawsuit against the chemical companies that manufactured Agent Orange. Vietnam veterans who suffered from skin rashes, liver disorders, and soft tissue cancers claimed that their ailments resulted from exposure to the defoliant, which was used to deprive enemy troops of jungle cover. Agent Orange was contaminated with dioxin, one of the most toxic chemicals under the sun. Yannacone barnstormed the country for five years, and aggressively attacked the chemical companies for allegedly covering up the effects of dioxin. In 1980 he produced what he called the "smoking gun" in the Agent Orange case: 20-year-old studies on chickens that consumed dioxin-tainted feed.

YANNACONE: You can't look at testicle shrunken by 80% and say gee, that's a harmless substance. You can't look at a liver completely destroyed at the intracellular level and say that this is a harmless substance. This is the kind of toxicity that you would see only if you had exposed those chickens to lethal doses of radiation. I'm convinced that there is no way that those chemical companies can now say they didn't have enough evidence to put them on notice that this stuff was damn dangerous.

MORAN: The Agent Orange suit was settled in 1984, when the chemical companies agreed to establish a $180 million dollar compensation fund. But Yannacone and many veterans blasted the settlement as a sellout. Because the case never went to trial, they say they were denied the opportunity to prove that dioxin caused the medical problems alleged. The temperament that alienated Yannacone's allies at the EDF created similar tensions with his colleagues in the Agent Orange case. Chicago lawyer Steven Schlegel, who worked with Yannacone on the Agent Orange litigation, says that although Yannacone's scientific knowledge and forceful personality are important assets in the courtroom, the man does not work well with others.

SCHLEGEL: He is a zealot when it comes to taking the stage, he is an evangelist when it comes to analyzing what he is saying, he's telling you that you must do things his way as he says because God and science are on his side.
MORAN: He can be abrasive at times.
SCHLEGEL: He's a very abrasive personality, if you don't do what Victor wants you to do you are on his list, and he will yell and scream and kick like a child whose lollipop has been taken away from him to a greater degree than any other lawyer I have ever seen in court.

MORAN: Yannacone is no longer a dominant figure in the environmental movement, and he criticizes its major players as "wimps" afraid to attack tough cases head on.

YANNACONE: You haven't seen many environmental lawsuits since I left the Environmental Defense Fund against an industry. You see lawsuits against the government. The days of frontal assault, attacking a problem because it's a problem, seem to be over.

MORAN: These days Victor Yannacone is still fighting environmental battles, although on a smaller stage. He's currently representing homeowners on Long Island opposing the burial of incinerator ash in a town landfill. He has spent a good deal of time in Hawaii recently, successfully intervening in state land-use proceedings on behalf of a bison rancher and other residents of the Honole River Valley. A class action Yannacone filed on behalf of New York City schoolchildren who may have been exposed to asbestos is still pending in a Federal court. Yannacone is currently preparing an updated edition of his landmark legal treatise, Environmental Rights and Remedies, for publication as an electronic data base. For Living on Earth, this is Jon Kalish in New York.

CURWOOD: That report was prepared with help from Susan Jaffee.