By J. Wylie Donald
Statisticians call it a correlation when two sets of data are strongly linked. In January, the governor of California declared a state of emergency arising from the persistent drought that resulted in 2013 being the driest year on record. In June of last year, a federal judge in the Northern District of California ordered the implementation of certain policies relating to the epidemic of Coccidioidomycosis (aka Valley Fever or cocci) in the California prison system, including the transfer of certain prisoners from certain prisons. Is there a connection?
Governor Brown’s emergency order addresses climate change only once. It notes California’s snowpack, a crucial element to future reservoir levels, is at record lows and “that extremely dry conditions have persisted since 2012 and may continue beyond this year and more regularly into the future, based on scientific projections regarding the impact of climate change on California’s snowpack.” The impact of the drought is being felt all across California. Specific provision is made in the order for communities that run out of drinking water, endangered species that are further at risk, groundwater level monitoring, and state agency projects. Noteworthy are the specific effects on agricultural communities: emergency food supplies, financial assistance, and unemployment services. And the listed actions will not necessarily be all; the order provides: “The Drought Task Force will monitor drought impacts on a daily basis and will advise [the governor] of subsequent actions that should be taken if drought conditions worsen.”
With California’s drought there simultaneously has been an explosion in the incidence of cocci cases in California and the Southwest. So much so that a cottage industry of pro se litigation has sprouted against the California prison system asserting violation of the Eighth Amendment prohibition on cruel and unusual punishment. Plata v. Brown, No. C01-1351 TEH (N.D. Cal. June 24, 2013) [enhanced version available to lexis.com subscribers], lays out the details. The fungus (Coccidioides) “lives in the soil of dry, low rainfall areas. It is spread through spores that become airborne when the dirt they reside in is disturbed by digging, construction, or strong winds.” Most people infected with cocci are unaffected. However, “[a]pproximately 10 percent of individuals infected with cocci develop severe disease.” This can include “severe pulmonary or disseminated disease, affecting soft tissues, joints, bones, and the meninges (the membranes surrounding the brain and spinal cord). Illness may persist for months or longer, and in some cases result in death.”
As it turns out, Coccidioides is endemic to the American Southwest (as well as certain regions of Mexico, Central and South America) and in California the hot spot is the southern San Joaquin Valley, where California has sited eight prisons. In 2011, 85% of the reported cocci cases in the California prison system came from two of these facilities, Avenal and Pleasant Valley State Prisons. Following litigation and the involvement of the Centers for Disease Control and the California Department of Public Health, an order was entered excluding and transferring certain identified high-risk prisoners from Avenal and Pleasant Valley.
Outside of prisons, what has been going on? Plata v. Brown provides some interesting statistics: “The rate of [Pleasant Valley State Prison] cocci cases was 38 times the rate of cocci in residents of Coalinga, the city in which PVSP is located, and 600 times the rate of Fresno County.” This might suggest that this is a prison problem, not something of concern to the general population. That would be a mistake. A recent article, Death Dust: The Valley Fever Menace, by Dana Goodyear in The New Yorker sets out the big picture. “In 2012, valley fever was the second-most-reported disease in Arizona; two-thirds of the country’s cases occur in the state.” African-Americans and Filipinos are very susceptible. As are immune-compromised and the elderly. A specialist stated: “if you breathe and you’re warm-blooded, you can get this.”
The Centers for Disease Control give Valley Fever its own web page; Ms. Goodyear reports the data as indicating a 10-fold increase in incidence between 1998 and 2011 and that CDC personnel refer to the disease as a “silent epidemic.” Other scientists do as well: An Epidemic of Coccidioidomycosis in Arizona Associated with Climatic Changes, 1998–2001, Park et al., J. Infect. Dis. 191 (2005). Moreover, the science attributes the epidemic to climate changes. “Climatic variables describing hot, dry conditions had the strongest association with incidence.”
Hot, dry conditions are what we can expect more of in the Southwest. A study by Allianz Insurance concluded:
Aridity in Southwest North America is predicted to intensify and persist in the future and a transition is probably already underway and will become well established in the coming years to decades, akin to permanent drought conditions. Levels of aridity seen in the 1950s multiyear drought or the 1930s Dust Bowl are robustly predicted to become the new climatology by mid-century, resulting in perpetual drought.
Will this lead to more litigation, besides that of prisoners? In our view, that is likely. Indeed, at least two suits have been brought in California alleging liability by contractors for failing to control dust which allegedly caused a plaintiff’s injury from Valley Fever. See Miranda v. Bomel Const. Co., Inc., 115 Cal.Rptr.3d 538 (Ct. App. 2010) [enhanced version available to lexis.com subscribers]; Wilson v. Alstom Power, Inc., F051673 (Cal. Ct. App. May 29, 2008) [enhanced version available to lexis.com subscribers]. Although in both cases the defendants prevailed, as public awareness of Valley Fever increases, the likelihood of additional suits and successful suits can only increase.
All of which takes us back to the original question: in the Southwest is there a connection between the increase in Valley Fever cases and changing climate? Some will claim causation is present. Although we suspect that is correct, one does not need to go that far. Above we called it a correlation and we will stick with that. In guiding clients, pointing out correllations is important; they are ignored at significant risk.
Allianz, Fund for Nature, Major Tipping Points in the Earth's Climate System (2009).pdf (1.28 mb)
Plata v. Brown (N.D. Cal. June 24, 2013).docx (61.37 kb)
J. Wylie Donald, a partner at McCarter & English, LLP, counsels and litigates for clients on insurance coverage, environmental and products liability matters. Mr. Donald co-chairs the firm's Climate Change and Renewable Energy Practice. He draws on his substantial environmental experience, his prior non-legal technical work, and his deep involvement in risk management to assist clients in understanding and controlling the coming regulatory and non-regulatory impacts of climate change. He has tried cases and argued appeals in the state courts in New Jersey and Maryland, conducted private arbitrations and mediations, and argued motions in federal courts across the nation.
Read more at Climate Lawyers Blog by McCarter & English, LLP.
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