Powerline Litigation Concerns

The prospect of massive law suits against the power industry has been a major ongoing concern to the industry, a prospect not lost on the legal fraternity. As reported in the January 1994 edition of the American Bar Association Journal's cover story "Why Electromagnetic Field Litigation Could be the Next Asbestos"is the following:

"Presently, more studies exist that appear to link EMF exposure to an increased risk of cancer than existed linking asbestos exposures to an increased rate of cancer at a similar embryonic stage of asbestos litigation."

In anticipation of possible future Australian power industry exposure to litigation, as reported back in 1991 by Les Dalton, former CSIRO research scientist and Author of Radiation Exposures: (Habitat Australia, Dec. 91):

"Despite their unwillingness to acknowledge the health risks, there are reports that the Australian electricity utilities are being urged by their associations to contribute significant sums to an industry legal fighting-fund to defend against anticipated worker's compensation and public litigation from workers affected by EMR exposure."

In the Nov/Dec 1996 issue of Microwave News, it is reported that eight of the U.K.'s major electricity companies, including the National Grid Co., are considering setting up an 8 million Pound fund to fight EMF litigation. In a confidential memo leaked to the Financial Times (Oct 11 1996), Willis Corroon, a leading U.K. insurance brokerage stated:

"A priority of the electricity industry must be to prevent a legal precedent being established. This will require the strenuous defence of any claims, and the associated defence costs are likely to be high The uncertainty surrounding this topic has created unease in the insurance market and has resulted in coverage being restricted" "Some insurers will not participate in the liability program of an electricity utility if it includes protection against liability for electromagnetic fields."

Until now, the prevailing legal opinion on litigation cases involving adverse health claims from exposure to electromagnetic fields (EMFs) such as cancer and other diseases identified in the scientific literature, is that the electrical engineering and power industries can only be held liable if science provides conclusive proof that weak electromagnetic fields impair health. This has been the main line of defence the power industry has used in litigation cases. It has been a very successful argument, with most cases being dismissed for lack of this type of evidence. However the question on whether or not EMFs are a proven hazard may not the most important issue when it comes to possible future litigation pay-outs for insurance companies.

On February 20, 1997 the Swiss insurance firm of Swiss Re announced a new publication " Electrosmog - a phantom risk" which raises serious concerns as to the exposure of the insurance industry to future liability for claims from "electrosmog". This can be defined as environmental pollution in the form of electromagnetic fields from a wide range of sources, such as powerlines, electrical sub stations, work places, electrical equipment, etc. To quote from Swiss Re's press release:

"Swiss Re's new publication "Electrosmog - a phantom risk" comes to the opposite conclusion and shows that, on the basis of present knowledge alone, it must be expected that plaintiffs will win suits dealing with this issue. The crucial question in this respect is not what results EMF research will yield in the foreseeable future, but how society will evaluate such conjecture.

For the insurance industry, this situation gives rise to an extremely dangerous risk of change composed of two parts. First, the classical development risk, that is, the possibility that new research findings will demonstrate electromagnetic fields to be more dangerous than has hitherto been assumed. Second, the sociopolitical risk of change, in other words, the possibility that changing social values could result in scientific findings being evaluated differently than they have been thus far.

The direction of this change is outlined by the gradual transition of liability law from its original form of fault liability, through strict or absolute liability, to the liability - in part already practised - of mere presumption or suspicion. The EMF problem is more dangerous and more threatening for the insurance industry than has generally been supposed - due not to the incalculably small health risks, but to the incalculably great risk of sociopolitical change.

From the insurance point of view, the EMF issue is a typical example of what has become known as a phantom risk: that is, a prospective hazard, the magnitude of which cannot be gauged and which perhaps does not even exist, but which is nonetheless real - if only in that it causes anxiety and provokes legal actions.

With "Electrosmog - a phantom risk" Swiss Re intends to contribute to a forward-looking discussion of pragmatic and feasible solutions. The publication is available in German, English and French. Orders for additional copies can be placed with; Swiss Re, Public Relations, P.O. Box, CH-8022 Zurich; Fax: 0011-41 1 285 2023"

The power industry should be concerned about the legal implications of the above, for their main defence in court rooms has been the lack of 'conclusive proof'. If what Swiss Re says is true and a perceived threat is sufficient to win litigation cases, the economic consequences are enormous. The pervasive presence of EMF/EMR in our society (according to the American Bar Association), has the potential make this litigation battle dwarf the asbestos issue. Obviously this would a great win for the legal fraternity, but a disaster for the insurance and power industry, with implications for the national economy in general.

The defence of a lack of 'conclusive proof' has largely rested upon the fact that there has been no known mechanism whereby external powerline frequency EMFs could influence internal biological processes. This concept is mentioned in an article in the July 4, 1997 The Australian, by Don MacPhee from the Latrobe University's School of Microbiology, in discussing the NCI Linet Study. Dr. MacPhee stated that the results of the NCI Study backed his claims that power lines did not emit enough energy to cause childhood cancer or any other form of cancer.

(see Putting a spin on science: the NCI Linet Study, page 1)

The idea that powerline EMFs do not have enough energy to affect biological processes is now very much in question. In the article, Putting a spin on science: the NCI Linet Study, it is pointed out that recent research by Dr. Om Gandhi indicates that essentially all strong external sources of EMFs are much stronger in the body than the fields naturally occurring in the body.

At the recent Second World Congress for Electricity and Magnetism in Biology and Medicine, held in Bologna Italy (June 1997), four further laboratory research papers were presented, which now make a total of nine in vitro studies, from four laboratories, finding that low level powerline frequency magnetic fields in the order of 12 milli-gauss can suppress the body's main defence against breast cancer (melatonin) and/or Tamoxifen, the commonly used drug used in breast cancer treatment. In addition there are at least three human exposure studies that show that low level exposures can significantly reduce melatonin levels. This effect is termed the "melatonin hypothesis". At the Second World Congress meeting, reflecting the evidence to date, it is stated in the conference program bulletin:

"A number of experimental studies have been conducted to test the [melatonin] hypothesis. Although the literature is still evolving and consensus is being built, it is fair to say, a) there exists credible scientific support for the hypothesis and, importantly, b) this support encompasses in vitro, in vivo, and epidemiological research. The melatonin hypothesis, thus, currently represents one of the more well documented/tested interactions in the field of bioelectro-magnetics."

With the amount of credible scientific evidence now accumulating, the power industry should be concerned about the legal implications of any attempts to down-play the evidence for EMF health hazards. In both the asbestos and tobacco industries, similar attempts to suppress hazard information eventually resulted in multi million dollar litigation and massive pay-outs, specifically because their attempts to suppress information indicated the industries knew of the risk but still knowingly exposed workers and the public to their products. If the power industry continues down the path of denial of a health risk, and makes no attempt to improve the situation, then they may well be heading down "tobacco road".

Lets hope that this does not happen in Australia. We have the benefit of seeing overseas trends, both in legal and scientific evidence and hopefully can take corrective action. If it can be shown, further down the track, that the Australian power industry took positive corrective action to reduce EMF exposures similar to the 1995 NCRP Draft EMF report's recommendations (Electromagnetics Forum, Vol. 1, No.2, Autumn 1997, page 3-4), it would seem reasonable that their exposure to possible litigation may be greatly reduced.