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News & trends
July 2008 | Volume 44, Issue 7
Rising tide of citizen action suits takes on water polluters
Carmel Sileo, Associate Editor
In May, six residents of the small fishing village of Kivalina,
Alaska, settled a lawsuit with Teck Cominco, a mining company based
in Vancouver, Canada. The lawsuit alleged that Teck Cominco’s
Red Dog Mine, one of the country’s biggest zinc mines, violated
the Clean Water Act by dumping illegal amounts of waste into the Wulik
River, which the villagers used for drinking water and subsistence
fishing. (Adams v. Teck Cominco Alaska, Inc., No. 3:04-CV-00049-JWS
(D. Alaska settled May 14, 2008).)
Citizen lawsuits against polluters are not new, but they are rising
in number along with the growing awareness of environmental concerns.
One reason is that when it comes to enforcing environmental laws,
courts can sometimes do a better job than federal agencies.
“I realized this years ago, that the courts are well suited
to addressing environmental concerns—often better than relying
on the government or legislatures,” said Scott Summy, a lawyer
in Dallas who was co-lead counsel for the plaintiffs in one of the
largest water-pollution settlements in history. In May, several large
oil companies settled with plaintiffs who alleged that the companies
were liable for leaking methyl tertiary butyl ether (MTBE), an octane
enhancer and known toxic substance, into groundwater supplies. (In
re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 175
F. Supp. 2d 593 (S.D.N.Y. settled May 8, 2008).)
American corporations are bound by strict federal and state environmental
laws, but these laws are only as good as their enforcement. And in
some cases, lawyers and environmental activists say, the enforcers
have been asleep at the wheel—unable, or unwilling, to make
corporations comply with the law.
The 1972 Clean Water Act, like other federal environmental laws,
has a private-citizen clause that allows individuals to sue companies
that violate the law. And increasingly, that’s where environmental
justice can be found.
“Politicians represent special interests, not people,”
Summy said. “A courtroom doesn’t have those barriers.
A court hearing is faster, quicker, and more efficient. You don’t
have political negotiation, just a jury hearing the facts. Courts
are well suited to deal with environmental issues because there are
no political bargaining chips in play.”
Moving mountains
That’s a sentiment that Joe Lovett, a lawyer with the Appalachian
Center for the Environment and the Economy in Lewisburg, West Virginia,
echoes heartily. Since his first case in court—the landmark
Bragg v. Robertson (54 F. Supp. 2d 635 (S.D. W. Va. 1999)),
the first case to successfully challenge the use of mountaintop-removal
mining (MTR)—Lovett has been fighting West Virginia’s
coal companies over this type of mining.
“I have been suing them for 10 years,” Lovett said,
“and it’s a good thing we have private-citizen-action
clauses, especially here in West Virginia, where one industry dominates
the political landscape.”
A process that uses explosives to strip the tops of mountains to
unearth coal, MTR has ravaged the state’s forests and waterways.
One of its by-products is selenium, a naturally occurring element
that is toxic to humans in large quantities and poisonous to fish
in any amount. Environmental groups in the state have long said that
coal-mining companies repeatedly violate federal limits on selenium
discharge, knowing that state enforcement agencies turn a blind eye.
“The state of West Virginia has bent over backwards to make
sure no mine operator ever has to comply with the law,” Lovett
said. For instance, when the state’s Department of Environmental
Protection (DEP) found thousands of selenium-standard violations in
a report on the state’s coal mines five years ago, it simply
suspended the standard.
“What you have is the state conforming the law to the illegal
activity, rather than conforming the illegal activity to the law,”
he said. “That’s completely wrong.”
Last year, Lovett filed separate lawsuits against two mines owned
by Chestertown, West Virginia-based Magnum Coal Co., on behalf of
residents who live near the mines. One suit included a fishery biologist’s
report that found reproductive problems and severe deformities—such
as curved spines and eyes on one side of the head—among fish
in the Mud River.
The DEP filed its own lawsuit against one of the mines, an action
that, under the Clean Water Act, blocks a citizen lawsuit. Lovett
said this was a common tactic. “Their lawsuit makes it seem
they are diligently prosecuting the claim, as required by law, which
prevents us from being able to sue,” he said. “But they
filed the suit and then did nothing. They haven’t even gone
to discovery yet. So we sued anyway.”
Lovett said the worst harm being caused by the mining is not the
selenium poisoning: “The worst thing is the fact that we have
a state that works to suspend a federal law, that is engaged in a
lawless activity.”
At press time, Lovett was waiting for a judge’s decision on
a preliminary injunction in one case, and a federal court had granted
summary judgment for the plaintiffs in the other. (Ohio Valley
Envtl. Coalition v. Apogee Coal Co., 2008 WL 2174461 (S.D. W.
Va. May 27, 2008).)
Citizen action can also cross borders. Last March, Scott Edwards,
legal director of Waterkeeper Alliance—a coalition of environmental
groups based in Irvington, New York—filed a criminal complaint
against Detroit-based DTE Energy under the Canadian Fisheries Act.
The claim charges that DTE violated the act in two ways: “discharging
pollutants into a waterway that interfere with the use of fish by
man” and “discharging pollutants that cause a harmful
alteration of fish habitat.”
DTE owns two coal-fired plants on the St. Clair River, which borders
Michigan and Ontario, Canada. Edwards said environmental reports have
turned up massive amounts of mercury poisoning in the St. Clair, which
could be linked to rising cancer rates in Windsor, Ontario, and the
river’s depleted fish population, harming the livelihood of
subsistence fishermen along the riverbanks.
Edwards explained that his claim is not a lawsuit but more like
a criminal case. “The Canadian Fisheries Act allows for private
prosecution, where a person can step into the shoes of the Crown and
prosecute on behalf of the Crown,” he said. Edwards was able
to file the claim because he is a Canadian citizen. It is believed
to be the first use of a citizens’ clause to attempt enforcement
of international law.
At press time, a Canadian judge had issued a summons for DTE to appear
in court, but the company had declined to do so. Edwards noted that
under Canadian law, DTE’s refusal could cause it to be classed
as a fugitive from justice and disqualify it from doing business in
Canada.
Getting crabby
Other water-pollution cases involve situations of long standing,
where a citizen lawsuit is seen as the final recourse.
The Chesapeake Bay is fabled for its crabs and its iconic “watermen,”
who fish the bay for crabs and other seafood. But both are a dying
species, and a long-simmering battle between the watermen and state
environmental agencies is reaching a boiling point.
In April, the states of Virginia and Maryland declared a 34 percent
restriction on the number of crabs that could be harvested from the
bay. At a press conference announcing the decision, Maryland Gov.
Martin O’Malley (D) said the semi-moratorium was necessary to
help replenish crab populations, which have declined by almost one-third,
and noted that in 2007, 60 percent of bay crabs had been harvested.
In response, the Virginia and Maryland watermens’ associations
signaled an intent to file lawsuits to overturn the restrictions.
The watermen say they are being made to pay for the states’
failures to implement policies that would have restored the bay and
the crab population. In both cases, the defendants and the bases of
the lawsuits are not yet determined, but the groups’ announcement
of their intention to sue was seen by sympathetic observers as a call
for help.
“A feeling of injustice is spurring them,” said Lee Anne
Washington, a lawyer located in White Stone, Virginia, who represents
the Virginia watermen. “The states are signatories to a multistate
agreement [the Critical Area Act of 1984] that the bay would be cleaned
up by 2010. And it’s 2008 and there’s no way they can
get that done. The bay has only gotten worse. The watermen just want
the states to take their obligations seriously.”
Environmentalists have long bemoaned the lack of progress in protecting
the bay. Doug Siglin, federal affairs director for the Annapolis,
Maryland-based Chesapeake Bay Foundation (CBF), said overfishing is
only one small part of the problem.
“The biggest problem is bad water quality, and the primary
cause is overdevelopment—the increase in population and
everything that goes with that: more sewage, more pollution, runoff
from fertilizers,” Siglin explained. “The watermen, when
we’ve spoken with them, are very knowledgeable and very concerned
about the effects of pollution.”
In April, O’Malley and Virginia Gov. Tim Kaine (D) announced
that, in response to a joint campaign by the CBF and the watermen,
they would ask the federal government to declare the Chesapeake Bay
a commercial fisheries disaster. O’Malley said some of the federal
disaster-relief money would be set aside to hire watermen for bay
restoration projects. The effort was greeted with guarded optimism.
“We all knew 30 years ago the bay was in crisis,” said
Washington. “The only reason they care now is because the watermen
are screaming about it.”
Edwards of Waterkeeper Alliance said it was important to remember
that U.S. environmental laws are among the best in the world—as
written.
“Congress, in a rare moment of lucidity, when it wrote the
environmental laws, understood that leaving enforcement to the government
would put these laws at the mercy of powerful industries,” he
said. “So it included all these citizens’ provisions,
to allow people to do what the government might be unwilling to do.
“If it weren’t for citizen action,” he added, “there
would be no environmental enforcement at all.”
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