Winter 2022: Vol. 24, No. 1

NELC attorneys secure public access to documents showing safety problems at U.S. Steel plant 

PITTSBURGH—Following a June 30 hearing, presiding Judge W. Scott Hardy of the U.S. District Court sided with NELC Attorney Matthew Donohue and affirmed the public’s right of access to exhibits filed with the court, ensuring that a trove of documents detailing the poor maintenance practices and dangerous operating conditions at U.S. Steel’s Mon Valley Works facilities—including expert reports, internal economic analyses, insurance summaries, and third-party inspection reports—would not be shielded from public scrutiny. 

Parties in complex civil litigation often enter court-enforced confidentiality agreements, but a party’s unilateral designation of a document as “confidential” is not absolute. When it comes time for the court to adjudicate elements of a case—such as the motions for summary judgment filed in NELC’s Clean Air Act lawsuit against U.S. Steel—a presumptive “right of public access” attaches to all materials submitted for consideration by the Court, including exhibits. As noted by the U.S. Court of Appeals for the Third Circuit, this right of access “promotes public confidence in the judicial system” and “diminishes possibilities for injustice, incompetence, perjury, and fraud.” 

Just days before the July 1 deadline for NELC and U.S. Steel to file a number of important motions, U.S. Steel requested permission to attach a report from plaintiffs’ engineering expert as an exhibit “filed under seal,” i.e., out of public view. The report details myriad issues with U.S. Steel’s operation of its Pittsburgh-area facilities that compromise their ability to comply with pollution control laws. Judge Hardy denied U.S. Steel’s request to file the report under seal and emphasized that a presumptive right of access will attach to all documents filed in the case. In response, U.S. Steel simply eliminated the expert report as an exhibit to its motion. 

However, having vindicated the right of access, NELC attorneys placed the expert report and myriad other documents on the public docket in August, when it opposed U.S. Steel’s motion. These documents suggest that the company risks public health and safety by choosing not to spend money on proper inspection and maintenance. They include: 

• A 2015 presentation quoting the observation of U.S. Steel’s own maintenance employees that “everything is being run to failure.” 
• An analysis by McKinsey & Company showing that, before a destructive fire knocked out pollution control equipment, U.S. Steel had cut its maintenance staffing at the Mon Valley Works by one third.
• Annual third-party Risk Consulting Reports that indicate that U.S. Steel failed for almost a decade to address warnings that vulnerable equipment could cause a plant-wide outage.
• Emails disclosing U.S. Steel’s discovery during post-fire repairs of piping rotted “Coke can thin” and on the verge of failing.
• Reports and photographs from a series of third-party inspections performed at U.S. Steel’s Clairton coke oven facility in 2020, detailing gas leaks, corrosion, and sagging and deformed pipes.

NELC protects environmental groups’ right of association under the First Amendment 

CONCORD, N.H.—Invoking the First Amendment, NELC attorneys successfully beat back efforts by Casella Waste Systems to inquire into the internal deci s i on-making of Conservation Law Foundation and Toxics Action Center (now Community Action Works), the two plaintiffs in NELC’s ongoing Clean Water Act lawsuit over the discharge of pollutants at Casella’s landfill site in Bethlehem, New Hampshire. 

The majority of citizen suits filed by NELC are brought on behalf of environmental organizations with members in the affected community. Under well-established Supreme Court precedent, such an organization may file suit on behalf of its members, provided that it has individual members who could serve as plaintiffs in their own right, and that the interests the suit seeks to protect are “germane to the organization’s purposes.” 

As often happens in environmental lawsuits brought by such organizational plaintiffs, Casella sought to use the court’s formal “discovery” process to secure information wholly unrelated to the groups’ claims in the pending suit. It issued discovery requests seeking, among other things, the names of the groups’ members and information on the groups’ efforts to stop Casella’s proposed expansion of the landfill. 

Under a string of court decisions dating back to the 1950s, however, the First Amendment confers an “associational privilege” upon advocacy groups, which protects their ability to freely speak and associate. The privilege extends to discovery requests made by a non-government entity, such as Casella, because it is the court—the government—that must enforce the requests. In the context of discovery, a party asserting the associational privilege must make an initial showing that enforcement of the discovery requests will result in harassment, membership withdrawal, discourage-ment of new members, or other consequences that suggest a “chilling” of associational rights. The burden then shifts to the party seeking the information to show that its interest in securing it outweighs the deterrent effect on the others’ constitutional rights. 

Upon receiving Casella’s discovery requests, NELC secured affidavits from leaders within each organization describing the negative effects that dissemination of the requested information to Casella would have on their ability to engage in effective advocacy. The Vermont and New Hampshire state director of Community Action Works, for example, described incidents in which members had been harassed in grocery stores and received threatening mail during contentious community campaigns. 

NELC attorneys then filed a motion with the court for a protective order, citing the potential for other such effects and noting that the requested information was irrelevant to plaintiffs’ lawsuit. This successfully constrained Casella’s discovery efforts to the factual bases for plaintiffs’ allegations that its landfill illegally discharges pollutants into the Ammonoosuc River— information to which Casella is entitled because it is the focus of the lawsuit.

From incineration to animal protection 

DETROIT—Thanks in part to our threatened lawsuit alleging hundreds of violations of the federal Clean Air Act, one of the largest trash incinerators in the country will soon be demolished to make room for a new home for Detroit’s stray dogs and cats. 

Decades of local organizing in response to noxious odors and toxic emissions, a series of enforcement orders by Michigan regulators, and, finally, NELC’s notice of intent to sue on behalf of Environment Michigan and The Ecology Center have forced the CEO of Detroit Renewable Power LLC to admit that the million-ton-per-year incinerator could not afford to operate without serious air pollution violations. 

In an Oct. 14 settlement agreement reached with the groups, the company has agreed to permanently cease operations and void its operating permits, bringing long-overdue improvements in air quality to the heavily impacted neighborhoods located in the crook of Interstates 94 and 75 in downtown Detroit. 

The city plans to demolish the incinerator and construct a new Detroit Animal Care and Control shelter at the site.