What is Next for Burn Pit Lawsuits?

Washington, DCIn August, the plaintiffs filed a Notice of Appeal In re: KBR, Inc., Burn Pit Litigation seeking to overturn the decision of the Fourth Circuit that barred them from suing the military contractor who operated the burn pits in Iraq and Afghanistan. Since individuals cannot sue the military itself, the Fourth Circuit decision effectively leaves these veterans without legal recourse for the injuries they suffered from breathing toxic air and drinking poisonous water.

While we wait for the appeal to actually be filed, there is plenty of time for armchair lawyering about how to make a stronger case for injured veterans in the future. Is the argument that KBR failed to bring incinerators online actually the secret key to success?

The courts are not about to second guess military decisions about how to wage war. Military contractors are also immune from lawsuits to the extent they are operating under the control and direction of the military in combat-related tasks. It was given that waste disposal was essential to the basic military mission at the Forward Operating Bases (FOB) in Iraq and Afghanistan. It is also fairly clear that it was a military decision that KBR implemented to dispose of waste through open-pit burning, rather than by transporting it off the base.

But it is not open-pit burning in general, but the burning of specific hazardous waste that seems to be linked to the mysterious illnesses from which these veterans now suffer. Everything at the Balad FOB in Iraq reportedly went into the 10-acre burn pit: computer parts, animal carcasses, medical waste, body parts, lithium ion batteries, paint, plastic bottles, insecticide canisters, DEET-soaked tents, human excrement, plastic drums, food waste, even entire vehicles. The whole thing was then lit up with jet fuel.

At the same time, various military directives specifically required the incineration of medical waste and prohibited the disposal of other kinds of hazardous waste through open burning. KBR argued in its defense that the installation of incinerators would have required military authorization and funding. Without more information about the process for or restrictions on a request for authorization or funding, it is difficult to assess the strength of this defense.

However, if KBR was acting in breach of either its contractual obligation to the military or in contravention of military directives about how that task was to be carried out, it might be liable for the harm that happened as a result. The incinerator angle may still hold out some promise.