First, Let’s Not Kill All The Lawyers
The Chamber of Commerce doesn’t like ordinary citizens suing to stop air and water pollution from Exxon’s Houston-area refinery and facilities like it throughout the country. (Photo Credit: Roy Luck, via Flickr)
“The first thing we do, let’s kill all the lawyers.”
— William Shakespeare, Henry VI, Part 2, Act 4, Scene 2
When it comes to settling disputes, I think we’ve made some progress since the Elizabethan Era.
If the likes of Dick The Butcher — who speaks the Bard’s oft-repeated line — had their way, I wouldn’t be around to write this note. My father would never have met my mother at a restaurant near his law school.
But the idea of, shall we say, handicapping lawyers to pervert justice hasn’t gone away.
In fact, if the U.S. Chamber of Commerce gets its way, a critical role played by lawyers in the enforcement of our country’s most important anti-pollution laws will soon be written out of the script.
And the big loser will be us groundlings.
An extra chance for the ordinary citizen.
It’s hardly news that the Chamber — and, especially, its oil and gas industry members — has never been a fan of the Clean Air and Clean Water Acts passed in the early 1970s.
My daughter hates being told to clean up her room. The Chamber’s members are no different. So, I get the animosity.
But, like my daughter to some extent, polluters have long figured out how to get most of what they want from those officially in charge.
That’s why the Chamber particularly despises one of those laws’ most innovative elements: the Citizen Enforcement Provision.
In a nutshell, the provision lets ordinary folks sue violators of those anti-pollution measures, if environmental agencies aren’t adequately enforcing the law.
It lets you and me be represented by lawyers. And, if they’re found guilty, the polluters have to pay the citizens’ legal costs.
Wrist-Slapping, Tut-Tuts, and Detention Warnings
In a more perfect world, where there were enough environmental cops on the beat and government prosecutors had the wherewithal to take on multi-billion dollar corporations willing to string out cases for a decade, we wouldn’t need such a provision.
But we weren’t living in that world during the best of any of the past forty-five years. And the past year has been perhaps the farthest away from that nirvana1.
In fiscal year 2017, polluters paid less than 0.1% of their revenues in EPA-levied penalties — and that was about 80 percent less than the year before,2
And the money is the least of it.
Ask any of the members of Environment Texas and Sierra Club who testified in their ongoing citizen enforcement suit against ExxonMobil Corporation. They’ve had to put up with the stench and the fear of what 10 million pounds of harmful petrochemicals illegally pumped into the air in their Houston-area neighborhood’s are doing to their bodies and their family’s health. Before a federal court found that the company had violated the Clean Air Act 16,386 times in eight years, Exxon had only been issued what essentially amounted to a get-out-of-jail-free card from Texas regulators.
Or think about the toxic metals dumped into the Conemaugh River near Johnstown, Pennsylvania. The guilty power plant operators were ultimately held liable by a federal judge for 8,684 violations of the Clean Water Act over five years, but state regulators had previously given them a pass for seven years.
The Chamber pushes back
But even the current situation isn’t good enough for the Chamber.
Since the citizen enforcement provisions were enacted, the Chamber has dipped into its treasury to pay for campaigns to radically limit the right to sue.
The current leading wedge in the Chamber’s effort can be found in a brief3 its attorneys filed on January 19th in an otherwise open-and-shut case before the 5th Circuit Court of Appeals
Their arguments sound good on the surface. But they’re detached from reality.
It doesn’t make sense, they claim, for citizens to sue if state and federal regulators are already dealing with the problem — no matter how inadequately. Best to leave enforcement to the experts, they say.
This line of thinking flies in the face of a hundred years of regulators slapping polluters on the wrist.. And, as illustrated above, the situation is especially bad now.
Moreover, they argue, you shouldn’t be able to penalize a defendant for all of its thousands of violations unless you can prove you were harmed by each and every one.
Sounds reasonable . . . until you apply that logic to the real world..
If you swim in a river that is being polluted, the Chamber concedes you can sue the perpetrator. But, the Chamber says, once the river is so horrid that you’ll no longer even dip your toe in it, you can’t sue the polluter for any further violations. Because you’re now wise enough not to get yourself sick, the Chamber concludes you’re no longer being harmed . . . and “no harm, no lawsuit”.
That’s like saying “you can sue us for the violations that forced you to flee from your death trap home, but not for the ones that discourage you from coming back.”
That’s no ordinary person’s definition of “justice”. And it’s not what Congress had in mind when passing the Citizen Enforcement Provisions.
It’s just a way for polluters to drastically minimize the price they pay for getting caught . . . and increase the economic incentive for breaking the law.
But the Chamber’s hope is that the Fifth Circuit, and perhaps ultimately the Supreme Court, will rule otherwise.
And, if that fails, their Plan B of persuading this polluter-friendly Congress and President to change the law will kick back into gear.
Justice at stake
I don’t want to be the one who has to tell people who live next to out-of-control smokestacks and leaking chemical pipelines that you’re on your own, that you’ll have to get the law changed or the regulators changed.
Life isn’t usually like those movies and plays where the aggrieved citizen single-handedly takes on the bad guys.
The screenwriters for modern-day’s most famous movies about environmental justice (Erin Brockovich, A Civil Action) knew they had to include a bunch of savvy lawyers to keep it real. Even Julia Roberts and John Travolta couldn’t win on their own.
All that environmental lawyers ask for — as should all citizens — is an opportunity (to quote Shakespeare’s Henry VI):
“To look into this business thoroughly,
And call these foul offenders to their answers,
And poise the cause in justice’ equal scales
Whose beam stands sure, whose rightful cause prevails.”
P.S. You can learn more about the groups opposing the Chamber of Commerce in this court case and opposing anti-Citizen Enforcement legislation in Congress. They include Environment America, the National Environmental Law Center, and the Sierra Club.
- Eric Lipton and Danielle Ivory. “Under Trump, E.P.A. Has Slowed Actions Against Polluters, and Put Limits on Enforcement Officers”, New York Times, December 10, 2017
- Miranda Green. “EPA data reveals dramatic decrease in enforcement of polluter fees.” The Hill, February 8, 2018. The latest revenue figure (2016) for the U.S. chemical industry is $767 billion. For the oil and gas industry, it’s $103 billion. For utility companies, it’s $387 billion.
- Environment Texas Citizen Lobby, Incorporated; Sierra Club, Plaintiffs-Appellees, v. ExxonMobil Corporation; ExxonMobil Chemical Company; ExxonMobil Refining & Supply Company, Defendants-Appellants, Appeal from the United States District Court for the Southern District of Texas, Houston Division. Brief of American Fuel & Petrochemical Manufacturers, BCCA Appeal Group, Chamber of Commerce of the United States of America, National Association of Manufacturers, Texas Association of Business, Texas Chemical Council, and Texas Oil & Gas Association As Amici Curiae in support of Appellants (January 19, 2018)