Fall 2012: Vol. 15, No. 2

Atlantic Salmon Suits Move Toward Trial

Portland, ME – NELC’s lawsuits to protect the endangered Atlantic salmon took a critical step toward resolution on May 1, when United States District Court Judge George Singal issued aggressive scheduling orders in all four cases. Under the orders, the parties were required to have all pre-trial motions filed, briefed, and ready for Judge Singal’s review by July 20.

The lawsuits, filed in federal court in Maine in 2011, charge four energy companies with violating the Endangered Species Act at seven hydroelectric dams on the Kennebec and Androscoggin Rivers in central Maine.

The suits allege that migrating salmon are subject to delay, injury and death as they attempt to swim past the dams. The owners of the Kennebec River dams are also charged with violating provisions in their Clean Water Act water quality certificates that are de- signed to protect salmon from having to pass through the dams’ hydroelectric turbines.

Judge Singal’s disposition of the motions now before him is expected to clear the way for trial in some or all of these cases by the end of the year.

Exxon Lawsuit Kicks Into High Gear

Houston, TX – In December 2010, NELC filed our latest and, arguably, most significant Texas Gulf Coast Clean Air Act enforcement suit. The defendant: ExxonMobil Corporation, the world’s largest oil company. The target: Exxon’s Baytown refinery and chemical plant complex in Texas, the nation’s largest. And the quantities of illegal pollution at stake are greater than those in NELC’s previous Shell and Chevron Phillips cases combined (see accompanying story, 2012 Fall – Gulf Coast Litigation Paying Clean Air Dividends).

However, unlike Shell and Chevron Phillips, each of which entered negotiations to resolve its violations of federal law, Exxon has decided to dig in and fight.

In 2011, after losing a motion to dismiss the case, Exxon replaced its legal team with not one, but two new law firms. The company also hired eight outside expert witnesses to buttress its cadre of in-house specialists. Exxon even asked the Texas Commission on Environmental Quality to issue a new enforcement order—drafted by Exxon’s lawyers—in an apparent effort to create the impression that the company’s violations were being adequately addressed by the government.

In May and June of this year, the two sides took more than 20 depositions. Among those questioned under oath were expert witnesses, company personnel, and members of Environment Texas and the Sierra Club who live near the Baytown Complex and suffer from the effects of Exxon’s illegal air pollution.

On August 10, NELC’s attorneys filed a motion—based on Exxon’s own emissions records—seeking a ruling that Exxon has committed more than 10,000 violations of the Clean Air Act since 2005.

A ruling on NELC’s motion is expected this fall, with trial scheduled for late 2012.

“If Exxon and other companies put the resources and the attention into it, they could stop these [emissions events] …the public and our members expect these companies to comply with their permits.

Luke Metzger, director of co-plaintiff Environment Texas, from his deposition.

NELC Amicus Helps Set Important Citizen Suit Precedent

New Orleans, LA – In 2010, after years of complaints from its members regarding the deplorable quality of the wastewater discharged by the sewage treatment system operated by the City of Baton Rouge, the Louisiana Environmental Action Network (LEAN) filed suit against the city under the Clean Water Act. However, rather than evaluating the merits of LEAN’s claims, the United States District Court simply dismissed the case. The court’s rationale for doing so caught NELC’s attention.

More than 20 years earlier, in 1988, the federal government had filed its own Clean Water Act suit against the city for the same set of conditions. Thereafter, the government entered into various settlement agreements with the city, but the pollution, and the Clean Water Act violations, continued apace. Indeed, one of the allegations of LEAN’s 2010 lawsuit was that the city was woefully out of compliance, even with the terms of its federal agreements. Nonetheless, the district court ruled that the existence of the prior government action rendered LEAN’s lawsuit “moot”—that it must be dismissed because there was no “case or controversy” that the court could resolve.

“Such logic,” noted NELC Litigation Director Charles Caldart, “would allow federal courts to dismiss citizen enforcement suits where they are needed the most: when government action has been unable to bring unlawful pollution to a halt.” Thus, when LEAN filed an appeal, Caldart and NELC Staff Attorney Joseph Mann filed an amicus curiae (friend of the court) brief on LEAN’s behalf.

In April, the Fifth Circuit Court of Appeals in New Orleans issued an opinion reversing the district court and reinstating LEAN’s lawsuit against the city. Specifically adopting the position laid out in NELC’s brief, the Fifth Circuit ruled that, as a matter of federal constitutional law, events happening before a federal lawsuit is filed (such as the federal agreements here) can never make the lawsuit moot.

“This should help level the playing field for citizen suit plaintiffs through- out the country,” noted NELC’s Joseph Mann.

Pacific Seafood Settlement Funds Vital Restoration Activities in the Columbia River Estuary

Astoria, OR– In 2007, after four years of litigation, NELC attorneys negotiated a consent decree with seafood processing giant Pacific Seafood. Not only has the settlement brought an end to years of Clean Water Act violations at the company’s seafood and surimi processing plants on the Skipanon River (home to several species of endangered Pacific salmon), but penalties paid by Pacific Seafood in that settlement continue to drive the improvement of environ- mental conditions in and around this Columbia River estuary. Under the terms of the consent decree, the Skipanon River Watershed Council, a local conservation organization, is receiving payments each year from Pacific Seafood to help remediate salmon habitats.

The Skipanon River drains into the Columbia near its mouth. To date, the Skipanon Council has used funding from the NELC settlement exclusively on the Skipanon itself: making structural improvements to upstream culverts to allow access to historic spawning grounds, undertaking stream channel excavations and riparian plantings to improve habitat quality, and installing water quality monitoring equipment and tidal gauge to provide data for future remediation efforts.

In January 2012, the federal judge over-seeing the lawsuit, Ancer L. Haggerty of the United States District Court for Oregon, approved a request by the parties to expand the scope of the consent decree, thereby allowing the Council to do conservation work in nearby rivers as well. As a result, the Council is now partnering with local municipalities to plan a series of fish passage improvements to neighboring Alder Creek, and has prepared a digitized map of historic drainages in that river to better prioritize these activities.

Additional restoration projects in the upper reaches of the Skipanon are also under development.

NELC Welcomes New Attorney

Boston, MA – In May, we welcomed Rachel Gore Freed as the newest NELC staff attorney in our Boston office. Previously a civil litigation associate with the Law Office of Theodore N. Cox (a New York City law firm representing low-income immigrants and political asylum seekers) she will be a great addition to our team.

Rachel comes to NELC with extensive federal court litigation experience: She has argued before the 10th Circuit Court of Appeals, and has successfully litigated actions against the U.S. government in federal district courts throughout the country. Rachel is well-known in the federal detention centers in Newark, New Jersey, for having secured the release of several asylum-seekers.

Rachel graduated with a J.D. from Vanderbilt University Law School in 2009, after having received a B.A. in international development from George Washington University in 2003. In the past, she has worked for the Center for Reproductive Rights in New York, the Irish Center for Human Rights in Galway, Ireland, and the List Project to Resettle Iraqi Refugees in Washington, D.C. She also interned with the prosecution team on the trial of the former President of Liberia, Charles Taylor, at the Special Court for Sierra Leone in The Hague, Netherlands.

At NELC, Rachel has assumed a pivotal role in the case against ExxonMobil, assisting with expert witness depositions in Texas and drafting motions through the pre-trial phase.