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But not Guillory's amiability, HL&P's information packet, nor its stated wish for outside guidance fully answers questions about the utility's stand on EMFs. For instance, HL&P chooses not to endorse what some call "prudent avoidance," a sort of safe-sex guide for interactions with electricity that a number of other utilities are starting to use. The electric company in Paonia, Colorado, for instance, plans and designs its power lines using "prudent avoidance" principles, even though they haven't been formally adopted by the utility's board. For the homeowner, prudent avoidance means such steps as moving beds away from high EMF sites, getting rid of your electric blanket and bedside alarm clock and standing as far as possible away from an operating microwave.
When asked why HL&P doesn't offer similar advice, Painter explains that "we want to wait until there's some kind of consensus." According to Mark Pinsky, author of The EMF Book, one of the more complete and balanced looks at the EMF debate, this kind of willful passiveness is common among utilities. "No one wants to be the first to let liability bite down," says Pinsky. Of course, there may be good legal reason to avoid being proactive: Washington, D.C.-based attorney Tom Watson has been said to advise utilities that by initiating any form of EMF abatement, they risk appearing to admit EMFs are dangerous.
But the electric industry, bonded by the California-based EPRI, also actively tried to distort the EMF issue in the not-so-far past, Pinsky says. "Why did the industry fight so hard not to allow [federal EMF safety guidelines]?" he asks rhetorically. In 1992, he says, "there was an incident around a 1989 [EMF report] that was very embarrassing for the utilities. A bunch of scientists testifying for the utilities testified about the document before the EPA science advisory board. They trashed it." But when questioned more closely, Pinsky says, it turned out the utilities' experts hadn't even read the report they were so firmly discounting.
Historically, those arguing against EMFs in court haven't managed to go very far. As Pinsky notes, "These are uphill battles to say the least," adding that "the research is ambiguous, certainly. The odds of winning are tough." The odds are so tough that there hasn't been a single EMF case considered an all-out victory for the plaintiffs. So why does Jamail think he can buck that trend? It's hard to tell; with the exception of a few general remarks, nobody in Jamail's firm is willing to talk. But a Vincent & Elkins attorney named H. Dixon Montague has some ideas.
Montague was the plaintiff's attorney in a massive EMF case in Klein ten years ago, a case that came as close to victory as EMF cases have managed. The dispute pitted the Klein Independent School District against HL&P, which had condemned land near a Klein junior high school and built a power line and tower on the property.
Convinced by Montague that the line's magnetic field could at least possibly promote cancer, a jury awarded the defendants $25 million in damages. In the Klein case, there were no ill children at issue; what convinced the jury, Montague says, was simply the scientific evidence he amassed. But even though EMF activists often refer to the Klein case as a victory, it didn't end up that way; the verdict was overturned on appeal, which meant HL&P never had to pony up the $25 million. Still, the utility did relocate its power lines at a cost of $8 million.
Loss on appeal or not, the fact that HL&P moved its lines makes the Klein case a meaningful precedent for Jamail's effort, Montague says. And if believing that EMFs had the potential to promote cancer swayed a Houston area jury, what will happen when a similar jury sees children who are actually stricken? At the same time, though, Jamail has set himself up to crack a much tougher nut -- while the Klein case simply floated the chance of cancer, Jamail's case insists that EMFs provably cause the disease. To show that will take money; the less-problematic Klein suit ended up costing KISD $1 million.
And that, says Montague, is why it's taken so long for another EMF case to hit Texas courts. "The electric industry in the U.S. is a very, very, very powerful industry," Montague says. "To take someone to task [in it] you have to have a substantial amount of willpower and money." Montague says that ever since the Klein case he's been inundated with requests for help on other EMF suits, but even the most promising clients fall silent when he starts talking fees. The only way he could win the first round of the Klein case was because the school district was willing to spring for research and witnesses to match those presented by the power company. In the absence of a large institution to take on HL&P this time, Montague observes, the one lawyer best suited for the showdown is Jamail. Of course, Jamail doesn't really need to win; a plump settlement could nicely minimize publicity for HL&P and make Jamail's efforts well worth his, and his clients', troubles. Even if it left the EMF issue hanging.