U.S. Department of Justice attorneys opened the first day of a class-action lawsuit by defending the government’s response to the Red Hill water crisis while acknowledging some Navy liability in contaminating the water supply for tens of thousands of residents.
Before the trial opened Monday morning, dozens of demonstrators rallied outside the federal court building in Honolulu to support the plaintiffs and the thousands of families affected by the 2021 jet fuel spill.
The trial involves the first 17 plaintiffs claiming medical, emotional and financial injuries from the contamination. Another roughly 7,500 plaintiffs have joined other lawsuits also seeking compensation.
On Nov. 21, 2021, a spill of JP-5 jet fuel in the Navy’s underground Red Hill fuel storage facility tainted the service’s Oahu water system, which serves 93,000 people — including service members, military families and civilians living in former military housing. It came after a spill in May 2021 in which the Navy now admits losing track of a few thousand gallons of fuel, which entered the facility’s fire suppression system.
Before the trial, Kristina Baehr, an attorney for the plaintiffs, told reporters outside the courthouse that “this case is about a government that abandoned its people, but it’s also about the people of Hawaii who embraced them. And when the government turned its back, the people of Hawaii were there, chanting for the land, embracing them with aloha, delivering water, sharing their stories. And so, collectively, they rose up and they prevailed.”
In opening remarks the government was defiant.
Though it admitted that it has some liability, the government’s lawyers argued that the crisis was overblown, that Navy officials acted promptly and that some of plaintiffs hadn’t been exposed to enough fuel to make them sick — and others weren’t exposed at all.
“Plaintiffs have claimed that the United States is denying that they were impacted by the November spill,” attorney Rosemary Yogiaveetil argued in the government’s opening statement. “But that’s not true. As this court is aware, the United States has stipulated that the bellwether plaintiffs are entitled to some level of compensation for the new system breach they experienced.”
Yogiaveetil went on to argue that “on the night of Nov. 27, 2021, the United States Navy received a handful of reports laying concerns about water quality on the base … within hours. In the morning of Nov. 28, the Navy had mobilized and began to investigate those complaints. … And even before the test results came back, the Navy shut down the Red Hill well within 24 hours of those initial reports as a precaution.”
Yogiaveetil said the “United States followed the science and took responsibility starting that November … (and) the Navy quickly responded to the emergency. It worked with regulators to keep the public informed. … They provided whatever answers they could, based on the information that they had and the scientific data available at the time.”
The federal attorneys made no reference to an investigation by the U.S. Pacific Fleet that found that when Navy officials first became aware of the Nov. 21 spill, they chose not to inform their superiors or state officials. In the following days as families reported concerns, the state Department of Health put out a health advisory for the water. Navy officials at first denied it and asked the Health Department to rescind the advisory before eventually acknowledging that the water was tainted.
The Department of Defense went on to fight a state emergency order to drain the Red Hill tanks — which sit just 100 feet above a critical aquifer that most of Oahu relies on for drinking water — until relenting in March 2022.
The federal lawyers argued Monday that despite conclusions of Defense Department medical professionals at the time and since, the level of contamination in the water “could not cause the injuries that (the plaintiffs) claim” and that “certain neighborhoods never received contaminated water, that only low concentrations of JP-5 could have entered any of the bellwether plaintiffs’ home while they were using the water” and that some were never even exposed at all.
Early on in the crisis, several military doctors warned that the Red Hill scenario was “unprecedented” and that there are few studies on how petroleum in water might affect long-term health.
Baehr cited remarks and documents sent out by Col. John Oh, the Defense Health Agency’s chief of occupational and environmental health, who has said that the symptoms of Red Hill-
affected patients are “complex” and might take years to manifest.
In March the Defense Health Agency sent out guidance to military medical providers on dealing with patients exposed to the Red Hill fuel, advising, “The long-term health risks of exposure to JP-5 and fuel additives are unknown. Defense Health Agency Public Health is investigating the cause of persistent symptoms and reports of neurological conditions and is planning an independent, third-party Red Hill exposure registry to monitor individuals’ health and quality of life.”
The government’s attorneys dismissed Oh’s expertise, noting that he was neither a toxicologist nor epidemiologist. Yogiaveetil said the symptoms families reported “have no known scientific medical link to JP-5 fuel” and that “the claimed physical injuries cannot be toxicologically caused by the November spill.”
On the trial’s first day, Natasia Freeman — a Navy spouse who is among the plaintiffs — acknowledged in testimony that she had preexisting symptoms, such as seizures and other ailments — before November 2021. But she said that the way those symptoms manifested “changed” after the contamination and that medical professionals took note.
“There’s a large amount of people with the same symptoms,” she said. “There’s this huge group of people all on the same waterline, right? Collectively, we were sick. And we still are. And there’s no reason that as a collective we should have the same symptoms. There’s no reason that my 7-year-old should have the same symptoms as me. And as a collective we are still harmed.”
She recalled that even before the Navy acknowledged that fuel had entered the water, “you could step outside in our backyard and you can smell it.”
Her husband, Navy Ensign Koda Freeman, testified that while the court case will eventually come to end, “this is not going to be over for us. We still have doctors’ appointments. We still have abnormal blood work. We still don’t know what’s coming in the future. We don’t know. This is not over for us.”
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