After FEMA started providing trailers to survivors of Katrina and Rita, high levels of formaldehyde were found in many of the trailers. I first learned of this from Dr. Irwin Redlener’s excellent Americans At Risk, which we’ve referred to before, and will again. Suffice it to say for present purposes that
- There was formaldehyde in the trailers, in which were housed many people, of every age, male and female, and varied in many ways – although probably very few of them affluent.
- The formaldehyde is dangerous –
- And its presence in housing – above certain parts-per-million (I believe that’s in air samples – not in the building materials themselves)
- When FEMA officials first found out that this was a possibility – FEMA counsel instructed them not to test – and to take the position that that was not a FEMA function – fearing that with knowledge would come responsibility.
Alas, the index of Americans at Risk does not do it justice – so a discussion of Dr. Redlener’s account will have to wait for an updated post.
“an official policy of premeditated ignorance”
Congressman Henry Waxman’s description of FEMA lawyers instructing FEMA employees not to test trailers for formaldehyde.
Professor David Michaels has been providing excellent coverage of this issue at The Pump Handle, a most-excellent public health blog.
You can read Michaels’ excellent post of July 26th here;
Michaels’ two previous posts here
and here.
Michaels points out that The Washington Post, in an editorial called “FEMA’S TOXIC ENVIRONMENT,” says that the Post tells FEMA director R. David Paulison that “knocking a few heads in FEMA’s general counsel’s office would be a good first step” in sending a strong signal that the beleaguered agency needs to undergo major changes.
The Post is right, of course. Michaels links to an excellent article by Bob Egelko in the San Francisco Chronicle – citing a number of legal ethics experts – who agree that the FEMA attorneys’ behavior was unethical. These attorneys include Monroe Freedman, perhaps the best-known legal ethics expert in the United States, and Ronald Rotunda, another leading ethics expert. Ask most lawyers to name nationally known legal ethics experts, and most will give you a short list – Freedman and Rotunda would, I think, be on nearly every list.
[Disclaimer: I know and admire Monroe Freedman, and have worked with him on at least one matter].
Professor Rotunda – who has the funniest law professor’s web page that I’ve seen – was assistant majority counsel to the Ervin Committee (for you young people, that was the Senate Select Committee on what’s now referred to as “The Watergate Affair”) – which might mean he was once a Democrat – but he’s also been counsel to Ken Starr while Ken Starr was Special Prosecutor, special counsel to the Department of Defense in the current administration – would, I hope, not be offended if we described his politics as “other-than-leftist.”
My point is that there’s a consensus that government lawyers should not take the position that “we don’t do those tests, because if we did we’d be responsible for knowing about the results and acting on them.” This is not a controversial proposition.
However – will these FEMA lawyers be disciplined? Our best bet is – probably not – unless someone formally brings it to the attention of legal ethics officials in a state in which any of the attorneys is licensed. Because this involves what is probably unethical conduct – but hasn’t resulted in a conviction – although it may have made some people very, very ill – the state licensing agencies (in some states, the bar association) aren’t likely to act on the basis of news reports.
We’re going to have the crack Popular Logistics research team look at the five thousand page document set released by Congressman Waxman’s committee and report back. Stay tuned.