By Seth Harp - New York Times
On May 9, a federal appeals court heard oral arguments in a case about an explosive issue among U.S. veterans: the widespread use of burn pits in Iraq and Afghanistan, and the potential health consequences they suffered as a result.
The case, which dates back to 2008, consolidated dozens of lawsuits by hundreds of veterans and their families seeking to recover damages from the military contractor KBR Inc., but a trial court dismissed it in July 2017. It could be at a legal dead end unless the panel of judges, the Fourth Circuit Court of Appeals in Richmond, Va., overturns the dismissal.
The plaintiffs accuse KBR of negligence for exposing them to toxic emissions from open-air trash fires known as burn pits, which they say cause respiratory, neurological and other health problems. In tossing the case last year, the trial court accepted KBR’s argument that the American military made the decision to use burn pits to dispose of trash on bases, and that federal courts cannot second-guess the executive branch’s wartime decisions.
One plaintiff, Lauren Price, a Navy veteran from Pasco County, Fla., who developed constrictive bronchiolitis after working at a burn pit in Baghdad, said in an interview that she has already given up hope. “I’ve stopped paying attention,” she said. After 10 years of litigation, the case is still at the procedural starting gates, and unless the plaintiffs eke out a win on appeal, it will be one of the biggest setbacks yet for tens of thousands of affected veterans who have received zero recompense despite years of advocacy by lawyers and nonprofits.
The controversy is at a point where it could become the subject of a Supreme Court decision or an act of Congress. Here’s a brief introduction to an issue that has risen over time from the lowest military scuttlebutt to the highest levels of American government.
What is a burn pit?
The military bases the United States maintained for eight years in Iraq and 17 years to date in Afghanistan were hardly spartan encampments. There were air-conditioned stores, fast-food restaurants, movie theaters, internet cafes and swimming pools. Soldiers bunked in prefabricated trailers and dined in spacious chow halls serving up hot square meals three times a day. All that consumption produced garbage, lots of it, which had to somehow be disposed of. The solution? Dump it into open-air pits, drench it in jet fuel and light it on fire.
On the largest American bases, like Camp Victory in Baghdad or Camp Anaconda near Balad, a perpetual miasma lingered over the tents and trailers, reeking of burnt plastic. The effect, worsened by the extreme heat, could be nauseating. Until 2010, when the Department of Defense banned burn pits, soldiers complained of coughing up “black gunk.” Thousands came home from deployment with some kind of respiratory illness, mostly mild or moderate, but including career-ending lung diseases and fatal cancers.
Former Vice President Joe Biden has even speculated that his son died from burn-pit exposure; Beau Biden received a rare brain-cancer diagnosis in 2013 at the age of 44, four years after a deployment to Iraq.
In 2013, in response to rising concerns from doctors and veterans’ advocates, Congress directed the V.A. to set up a registry of veterans who were exposed to burn pits. More than 142,000 have signed up so far.
So burn pits cause lung disease?
Deployments are associated with an increased risk of asthma and emphysema as well as a number of rare respiratory conditions, but there are numerous factors that could contribute to these illnesses.. Iraq and Afghanistan are two of the world’s most polluted countries, and there are also dust storms, oil-well fires and battlefield explosions to take into account, not to mention the copious quantities of cigarettes that soldiers smoke.
In 2004, the Department of Defense asked Dr. Robert Miller of Vanderbilt University to examine a large cohort of soldiers who had come back from Iraq with unexplained shortness of breath. “Soldier after soldier going from elite athlete to someone who could not complete a two-mile run,” Miller said. “This is not something you see in a normal young adult — period.” While their X-rays were often normal, Miller went further and performed surgical biopsies on about 60 veterans, taking tissue samples from their lungs. A majority showed evidence of constrictive bronchiolitis, an incurable disease characterized by tiny particles lodged in the airways. “There was particulate matter in all of the biopsies,” Miller said. “It’s clearly inhalational.” Most of the soldiers Miller treated were medically discharged and received disability benefits. But after he reported his findings, the Defense Department stopped sending him patients. “They felt we had stepped over the line by doing aggressive biopsies,” he said.
On May 8, a team of medical researchers published an article in the journal Experimental Lung Research in which they reported creating an animal model of burn-pit symptoms by injecting samples of dust collected from Iraq’s Camp Liberty base into the tracheas of mice. One of the authors, Dr. Anthony Szema, formerly the V.A.’s chief of allergy medicine, and now with Hofstra’s Zucker School of Medicine, said the carbonaceous and metallic particles that lodged in the air sacs of the mice were identical to those seen in Miller’s biopsies. “If you were in a burn pit, you definitely inhaled this stuff,” Szema said. “And it definitely causes lung injury.”
Lauren Price returned home from Iraq feeling sick and unable to explain why. Halfway through her 2007 deployment, she came down with the “creeping crud,” as she called the material in her lungs, and by 2008, “I couldn’t walk. I couldn’t climb stairs. The crap in my lungs kept getting worse, until it was hard to breathe.”
Doesn’t the V.A. compensate sick veterans?
The V.A. compensates veterans for injuries and disabilities incurred as a result of military service, including illnesses and disease. But when the onset of a chronic health condition is delayed, causation can be hard to prove.
The V.A.’s current position on burn pits is that there is not enough evidence to prove a direct connection between exposure and the many health issues veterans are reporting. A 2011 government-funded assessment of existing research said there may be long-term health effects, but the evidence was lacking and the data inconclusive. The V.A. may grant disability benefits for various pulmonary ailments, including asthma, but only if the veteran proves it resulted from military service.
“The V.A. says ‘Prove it,’” said Greg Lovett, who made “Delay, Deny, Hope You Die,” a documentary about veterans with burn-pit symptoms trying to get benefits. “How can you prove it? You’re sick, and you’re trying to take care of yourself, you’ve got all these medical bills, you’re not getting the medicine you need, appointments are getting postponed, cancelled, and the burden is on you to show this is service-related.”
What does KBR have to do with it?The engineering and construction firm KBR, which made more money off the Iraq war than any other corporation, provided a wide range of logistical services to the armed forces in Iraq and in Afghanistan, which included the day-to-day operation of 119 burn pits.
Denied benefits by the V.A., many veterans went after KBR directly, filing some 63 lawsuits, including 44 class-action suits, claiming negligence and other causes of action. In 2008, the lawsuits, spread across 43 states, were consolidated into a single proceeding, Metzgar v. KBR Inc. The multidistrict litigation involves hundreds of plaintiffs, millions of pages of documents and dozens of depositions, but after 10 years it is still far from the trial phase, stalled out over the technical jurisdictional arguments that KBR’s lawyers have advanced. All the litigation to date has dealt with the preliminary question of whether KBR can even be sued.
In January 2018, the judge of a workers’ compensation case in the Department of Labor decided that burn-pit exposure was to blame for a KBR contractor’s pulmonary condition. It was the first instance of a federal agency accepting the premise, but it was an administrative-law decision, not binding on other agencies or the courts.
Why was the lawsuit dismissed?
In July 2017, the trial court judge, Robert W. Titus of the District of Maryland, held that it was the military’s decision to dispose of solid waste in burn pits, not KBR’s, and that federal courts have no power to second-guess the executive branch’s wartime decisions, a precedent known as the political-question doctrine. He also held that “sovereign immunity,” which generally shields the federal government from being sued, extends to private contractors supporting the military in a combat zone.
The plaintiffs appealed to the Fourth Circuit, saying that Judge Titus got it wrong.
“We needn’t second-guess any military decision,” Susan L. Burke, lead counsel for the veterans, told the panel of appellate judges. She said the evidence shows that most of KBR’s burn pits were in fact unauthorized.
Warren W. Harris, who argued the case for KBR, ridiculed that notion. “Burn pits were being operated in plain view of thousands of soldiers across two theaters of war,” he said, meaning the military must have known and approved of what KBR was doing.
Even assuming that’s true, Burke said, KBR violated its contract with the military by burning hazardous waste.
There is little evidence of that, Harris responded.
Price told The Times that she personally burned hazardous waste on instructions from KBR personnel, including auto parts, batteries, mattresses, styrofoam and computers. “The KBR guy sitting in an air-conditioned office would come out and take one look in the truck and say ‘Dump it right there,’” she said. “For them to deny it now is insulting.”
Aside from these questions of fact, the extent to which private military contractors like KBR share the government’s immunity from being sued is an unsettled area of U.S. law.
“It’s incoherent,” said Stephen Vladeck, a professor at the University of Texas School of Law who writes for the blog Lawfare. Military contractors can be court-martialed or indicted in the United States for their actions overseas, he said, but judges are all over the map on the question of whether they can be held liable for negligence and other civil misconduct. If the Supreme Court doesn’t step in to “clean up the mess,” he said, Congress should pass a law making it clear one way or the other. “And if the contractors really aren’t going to be held liable,” he said, “by what mechanisms are they going to be held to account?”
What happens if the veterans win?
If the case is reinstated, the plaintiff veterans will still have to litigate the complex medical question of causation. KBR denies that burn pits are harmful to human health. “Military personnel deployed to Southwest Asia were exposed to many hazardous conditions, including the harsh ambient air,” a representative of KBR wrote in an emailed statement. “The government’s best scientific and expert opinions have repeatedly concluded there is no link between any long-term health issues and burn-pit emissions.”
If the Court of Appeals upholds the dismissal, only the Supreme Court will have the power to reinstate the case.
“I don’t want to sugarcoat it,” Vladeck said. “The plaintiffs face an uphill battle.”
Is Congress doing anything about this?
After years of inaction, Congress has shown some inclination to intervene. In 2010, lawmakers banned the military from using burn pits except where there was no feasible alternative. In 2013, Congress mandated the creation of the V.A. registry, and the 2018 defense-spending bill required the V.A. to coordinate further research on the effects of burn pits. On May 1, members of the House of Representatives announced the creation of a bipartisan congressional caucus on burn pits, and a hearing on veterans’ health issues is scheduled for June.
Congress has the power to direct the V.A. to presumptively grant disability benefits to veterans with lung disease if they were exposed to burn pits, but so far no member of Congress has proposed a bill to do so.
The Veterans of Foreign Wars is trying to change that. “For every generation’s war, there is some toxic exposure,” said Kenneth Wiseman, the V.F.W.’s associate legislative director. “In Vietnam it was Agent Orange. Then gulf war syndrome. Now burn pits.” He said the V.F.W. is currently lobbying Congress to direct the V.A. to create a list of illnesses presumed to be caused by burn-pit exposure. The V.A. would grant disability benefits to any Iraq or Afghanistan veteran with a listed condition, so that “individuals don’t have to assemble mountains of evidence one by one.”
That is what Congress did for Vietnam veterans exposed to Agent Orange, but not until 1991 — 16 years after the Vietnam War ended, 22 years after a National Cancer Institute study demonstrated a link between Agent Orange and cancer in mice and 25 years after the scientist who helped invent the defoliant first sounded the alarm over its potential harmfulness to humans.
Seth Harp is an Iraq-war veteran and freelance journalist based in Austin, Tex. He is a frequent contributor to Rolling Stone, covering conflict in Iraq, Syria and Mexico.
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