May It Please The Court
Quote of the Day - Corn can't expect justice from a court composed of chickens.
GE Wins Challenge Against USEPA Superfund OrderSuperfund may have just lost its cape of impenetrability. The United States Court of Appeals for the District of Columbia ruled yesterday that General Electric can sue the USEPA over a unilateral order it issued to clean up the Hudson River from years of PCB contamination.
The ruling is one of the most significant challenges to the power of the USEPA to clean up contamination under CERCLA.
GE based its challenge on due process. Lawrence Tribe argued for GE that without the right to challenge a "unilateral ruling," the combination of the absence of preenforcement review and heavy penalties "imposes a classic and unconstitutional Hobson's choice: either do nothing and risk severe punishment or comply and wait indefinitely before having any opportunity to be heard on the legality and rationality of the underlying order."
In other words, a conundrum.
The ruling overturns Judge John D. Bates' earlier order upholding the USEPA's position. The reversal on appeal opens up the entire CERCLA statute to constitutional scrutiny. We may have a very different landscape in several years after this case winds its way through the appellate process.
So, now GE has the right to sue the USEPA, a first in CERCLA. Depending on how this case turns out, there are over 1,000 cleanup orders issued by the USEPA that will be subject to challenge.
Environmentalists are incensed. The NRDC believes the decision will weaken Superfund laws.
GE hasn't commented yet. But it's probably happy it doesn't yet have to spend almost $500 million dredging the Hudson River.
Who Writes Rules For Regulations?In mid-February, House Representatives Henry Waxman (D. CA) and Tom Allen (D. ME) sent a sharply-worded letter to USEPA Administrator Mike Leavitt requesting information regarding a report in The Washington Post that portions of USEPA's latest mercury air pollution control proposal may have been "copied word-for-word from industry lobbying materials."
Allen and Waxman's letter allege that the two memos at issue were written by the 1,500 attorney firm Latham & Watkins. Seems as though an assistant USEPA administrator, Jeffrey Holmstead, and his chief counsel, Bill Wehrum, used to work for Latham & Watkins, according to the Post. The Post article claims nearly a dozen paragraphs were lifted verbatim from the L&W memoranda.
"No one disputes that industry lobbyists were allowed to write significant portions of a formal [US]EPA proposed rule," said Rep. Waxman. "The questions now are how did it happen and how do we restore [US]EPA's credibility and independence?"
"That's not typically the way we do things, borrowing language from other people," Holmstead, head of the EPA's air policy office told the Washington Post. "But it came to us through the interagency process."
USEPA officials dismissed the matter as largely an interagency mix-up that had little to do with shaping the administration's centerpiece proposal for forcing power plants to reduce mercury emissions 70 percent by 2018. They said the law firm language that turned up in the proposed rule published in the Federal Register was related to an alternative proposal that the administration does not support.
Claudia M. O'Brien, lead writer of the Latham & Watkins memos, said it was "gratifying" that the USEPA found the firms' analysis persuasive, but that "we didn't ask [US]EPA to cut and paste our analysis into their [rule-making] preamble," according to the Post. According to her L&W biography, before working for Latham & Watkins, Ms. O'Brien spent six years working for the USEPA.
The final words, in classic governmental lawyer double-speak: "Neither Bill [Wehrum] nor I had any idea this language came from Latham & Watkins," Holmstead said. "Our technical folks who did subcategorization used it."
Who Should You Believe? - Or Do What You're Told!As a rule, I don't comment on celebrity lawsuits because we all get enough of it every day in the regular media. But this observation, while necessarily yes a comment on a celebrity, it really is more of an observation on the media.
And you would have to be paying close attention to the coverage of Martha Stewart's trials and tribulations. Take, for example, this photograph of the somewhat ashamed Martha, just before Christmas. Then compare it with this one in 1999 when she took her company public, dutifully serving canapes to her phalanx of Vice Presidents.
Then mix in the "stand behind your man" picture when K-Mart filed for bankruptcy, but Martha stood steady.
When she entered court for her current trial, this is the typical photograph (the one of the left) chosen to accompany the lead story. Martha looks worried.
But today, we are greeted with an almost Princess Diana-like view of Martha, as we are told by the courtroom pundits that her case begins to turn.
Not that we're being told by the media what to believe (tongue planted firmly in cheek here), but it's more than a very subtle message that we're being sent. If Martha wins her trial, she will try to "rebuild" her life, we're told. If she loses, she'll hang her head in shame. Most assuredly, we'll get photographs to accompany the mood of the article.
In reality, there are 150 Marthas to choose from. The media can pick whichever one they want to communicate the larger message they want us to believe.
Feeling manipulated yet?
Beds is at it AgainBeds has a new column posted on the separation of church and state, paid administrative leave and miscreant Lutheran bishops.
You read it and figure out how he combined all of those into coherent thoughts.
Rent-a-Husband meets Civil Procedure 101I read. A lot. For my legal practice, that means I read slip opinions. This new case deals with civil procedure issues near and dear to the hearts of litigators. It's not especially enlightening about anything in particular.
Except the subject of the lawsuit - drum roll please - Rent-a-husband. No, it's not what you're thinking. It has nothing to do with escort services or like lady sitters, a Comedy Central skit.
It's a handyman business. You know, that honey-do list that never gets completed. Well, this guy does. Finish up the list, that is.
Now there's an idea to get my house straightened up. Too bad this guy's in Maine.
I'm Dying for a QuoteOftentimes when I read Newsweek (the print version), I skip right to the quotes page. I like the pithy statements distilled down to the crux of the issue. That's why I stick a Quote of the Day in this blog.
Court TV has started doing the same thing. Their section, called Hearsay is even better because it has blog-like links to the actual story. Newsweek, take note.
Beyond quotes, there's some other interesting material out there. Courthouse News, a service that offers tidbits on newly filed lawsuits, also has an interesting new column. Robert Kahn writes Coyote Speaks (middle column), and this week's rant is about reject letters from book publishers. Very funny.
To bring matters to a close, how about a do-it-yourself obituary? Or even a do-it-yourself funeral.
I'm not sure it's worth dying for, though.
To Discharge In Bankruptcy Or Not?In a simple, seven-page opinion, the Eighth Circuit Court of Appeals refused to allow environmental fines and penalties against a scrap tire dump operator to be discharged in bankruptcy.
That's a big sentence, but not an unusual holding. Here's a short article about the dangers to shareholders who receive distributions from bankrupt companies that may have environmental liability (an entirely different category than fines and penalties).
Even the automatic stay in bankruptcy does not slow down environmental claims. Ultimately the Chapter 11 reorganization, however, may be successful in temporarily eliminating environmental liability. In the Third Circuit. The law seemingly does not bind the government to such a limitation, and the USEPA and other governmental entities can pursue criminal fines and penalties without regard to bankruptcy. For contamination that continues or starts during BK protection, the government can force compliance, and then get in line in front of everyone else.
Bankruptcy courts do not have a consistent position on how to treat claims against debtors by other Potentially Responsible Parties. Some allow environmental claims for contribution to proceed, others do not. Except in one circumstance. When monies have already been expended for environmental cleanup by a PRP, claims for contribution are uniformly allowed.
Claims for future response costs are another story. Check your local listings. Courts vary in their treatment of these claims.
Then there's the question of whether you can sell contaminated assets out of a bankrupt estate. It's fraught with caveats and difficulties (download required).
But with substantial legal work, discharges of environmental liabilities have occurred - with payments and other restrictions. In instances where the discharge was pre-petition and the claims contemplated, under certain circumstances, some environmental claims may be discharged in bankruptcy.
How's that for a series of caveats?
There's no easy answer. I'm not a bankruptcy lawyer and this short summary does not cover all the facts and alternatives of your case. If you have questions, call a bankruptcy lawyer.
Inflation Percentages Gone WildHere's one to warm your heart: the USEPA has raised its maximum penalties to adjust for inflation. It is required by law to be done every four years. So, the last time the penalties were adjusted was at the turn of the century.
Now, penalties are going up a whopping 17.23%.
The USEPA claims that 17.23% is the rate of inflation for the last four years. All I know is that my income hasn't gone up almost twenty percent over the last four years, and I doubt yours has either.
I checked with the Department of Labor, and according to the consumer price index, inflation went up only 9.3% over this same, four-year period. If you look closely, you can find the DOL's inflation calculator, which notes that $1.00 in 2000 will buy what $1.08 would buy in 2004. By the Bureau of Labor Statistic's calculations, that's only 8%.
Not even close to 17.23%.
If you want to ask the USEPA how it made its calculations, call or email Cynthia Bergman 202-564-7862. You won't believe the government doublespeak.