|
By Charles A. Bedell
Trustee of the Lincoln Heritage Institute
1997
In "The Hidden Empire -- Part One" published in the September, 1996,
edition of The Address, we began to explore the nature of the environmental
advocacy industry and its impact on America's individual rights. We discussed the history of a type of lawsuit called the "citizen suit" which was created by friends of the environmental advocacy industry in Congress and inserted in our federal environmental laws. We also
noted that evidence seems to be coming to light that this type of lawsuit has been widely used by the environmental advocacy industry to line their pockets rather than as Congress intended.
The case of Sierra Club, Lone Star Chapter v. Cedar Point Oil Company has provided us with a shocking insight into what appears to be the dark side of the environmental movement. The Sierra Club's action against little Cedar Point Oil was the only one of several threatened suits which ever made it into court. The Sierra Club approached an unknown number of other oil
companies with activities in Galveston Bay, Texas, and, incredibly, offered to let them continue to discharge produced water for 24 months if the companies would pay the Sierra Club a fee and also pay their related legal expenses. If the discharge didn't stop within the stipulated 24 months, the oil companies would have to pay the Sierra Club or their designee a certain sum per month!
This unbelievable scenario is spelled out in a series of consent judgments that the Sierra Club had entered against the oil companies. As of this date, we have seen four such U. S. District Court judgments, two of which were filed in the Eastern District of Louisiana and two in the Southern District of Texas. In the four judgments we have seen, the Sierra Club netted $110,000 in "contributions" and $37,000 in legal fees!
In all of the settlements we have seen, the Sierra Club agreed that the oil companies could continue the discharges in return for their money contribution. If the oil company failed to end its discharges in the time the Sierra Club stipulated, the Sierra Club stipulated a monthly payment
which the company would have to make to the Sierra Club or some other environmental group! In other words, the Sierra Club felt it had the right to extract a sort of license fee and also had the power to grant the company the right to continue discharges which the Sierra Club was supposedly suing to stop in the first place. If this all seems unbelievable to you,
please check the following:
U.S. District Court - Southern District of Texas
1) Sierra Club, Lone Star Chapter v. American
Exploration Company -- Civil Action No. H-92-3489
2) Sierra Club, Lone Star Chapter v. Kansas
Oil and Gas Corporation -- Civil Action No. 93-1145
U.S. District Court - Eastern District of Louisiana
1) Sierra Club, Delta Chapter v. Greenhill
Petroleum Corporation -- Civil Action No. 92-3876, Section "G", Mag.
Div. 3
2) Sierra Club v. Texaco Exploration and
Production, Inc. -- Civil Action No. 92-2253, Section "K"
In these cases, the Sierra Club and its lawyers claimed to have discovered companies illegally discharging pollutants into the waters of the United States. Instead of reporting these violations to the National Response Center as required by law... instead of going to the EPA and asking them to take action, the Sierra Club went to the companies privately and sought
"contributions" and "legal fees"! In their settlements, the Sierra Club agreed to "allow" the pollution they claimed to be trying to stop to continue indefinitely if the companies would make monthly payments to a designated environmental advocacy group!
Other Citizen Suit Awards to Advocacy Groups
According to information submitted in 1996 to the U.S. House of Representatives Committee on Resources by the U.S. Department of Justice, Federal Court cases over the past nine years have resulted in awards and legal fees of $9,157,800 in connection with endangered species cases, alone. According to a Committee staff source, many of these are not final awards
and additional awards and fees may be granted in the future. The Justice Department indicated that other cases filed under other laws, such as the National Environmental Policy Act, but based on the presence of an endangered species were not included.
One case, Sierra Club v. Lujan (the Edward's Aquifer case ) has resulted in more than $3.5 million in attorneys fees for the Sierra Club. When the court made a preliminary award in late 1993, the Sierra Club asked for $4 million and was given $2 million from the U.S. Government. The Sierra Club also was successful in obtaining a court "gag" order to keep all documents and pleadings relating to the award of attorneys fees confidential. According tour Resource Committee source, the Sierra Club submitted claims for activities which were not directly related to the actual litigation. These claims were apparently for things such as participation in state administrative actions, state and federal legislative lobbying, and even
press releases, interviews and other public relations expenses! When the case was finally ordered dismissed by the U.S. Fifth Circuit Court of Appeals, the Sierra Club was awarded another $1,550,000 in fees in addition to the $2 million awarded earlier.
Other taxpayer financed payments in environmental cases include $262,096 in the case of Natural Resources Defense Council v. Babbitt, $518,000 in the case of Natural Resources Defense Council v. Hodel, and $322,500 in Defenders of Wildlife v. Thomas. We invite our readers to send us information on other cases where environmental advocacy industry members
have been given large sums as either attorneys fees or as damages.
Review of Proceedings - Sierra Club v. Cedar Point Oil Company
The Appellant's brief filed by Cedar Point with the Fifth Circuit makes very interesting, and disturbing, reading. Although we do not have the space to report extensively of its contents, a few points should be interesting to everyone interested in "justice". First, the basis for the
Sierra Club's standing to sue was three affidavits filed by highly-placed members of that group Lone Star Chapter. One person was Secretary of their Executive committee, another was "Chair" of their Galveston Regional Group and the other Conservation Chair of the Galveston Regional Group. All of these affidavits ended with exactly the same language:
" I am familiar with "produced water" that is being discharged into Galveston Bay by oil and gas production facilities located in the Bay. I am concerned ( our emphasis ) that the discharge of produced water adversely affects the water quality and the wildlife of the Bay. Therefore, I am concerned ( our emphasis ) that the continued discharge of produced water
will impair my ability to enjoy the activities in which I participate."
No specific experience with, let alone injury from Cedar Points' activities was even alleged, just this generic "concern"...but this was enough to create standing to sue in the mind of Judge Kenneth M. Hoyt. Although the affidavits do not demonstrate the existence of any specific facts showing any injury, Judge Hoyt denied Cedar Point's motion to dismiss. This sort of
ruling weakens our judicial system by allowing harassing suits to be filed by persons with financial, political or environmental causes to further or who simply want to harass the defendant for failing to agree to pay them off like the other companies had.
Another important turning point in the Cedar Point case came when Judge Hoyt ruled affirmatively on a Sierra Club motion to strike Cedar Point's list of expert witnesses. Under the Judge's scheduling order, Cedar Point was to file their list on January 20, 1994, but actually filed it on January 24th after trying to get an extension of time due to the delay in getting
the Sierra Club's list and the vagueness of their other initial disclosures. Although this author has not seen any reference to a due date for anything but an expert witness list ( Judge Hoyt's Order of 9/29/93 ), the Judge ordered on April 18, 1994, that none of Cedar Point's experts would be
allowed to testify at trial because of that party's failure to provide "expert reports". However, the Civil Docket for Case #: 93-CV-1147 indicates that Defendant's "Reports of Experts" were filed on February 2, 1994! Since the Reports were filed, why did the judge punish the defendant Cedar Point! The Judge overlooked the fact that the Sierra Club was three days
late in filing its list of expert witnesses and apparently filed no Reports
of Experts.
Oh, and in case you still think you, as a defendant, are entitled to a trial before a jury of your peers, you better think again. After granting the Sierra Club's motion for a partial summary judgment on issues of liability, Judge Hoyt also granted the Sierra Club's motion that Cedar Point
be denied a jury trial on the issue of the amount of penalties which would be assessed against it.
Since our last article on this subject, Cedar Point's effort to get the U.S. Supreme Court to review its case has failed. With his legal options exhausted, Cedar Point's John McGowan feels betrayed by the legal system and victimized by an opportunistic environmental activist group. The Sierra Club's lawyers recognized a regulatory never, never land created by EPA's
failure to issue standards and permits as the State of Texas had and acted quickly to reap the easy money windfall from the oil and gas operators in coastal waters. After looking into this case, it is easy to understand his feelings. The irony is that McGowan has a deep appreciation for and
scientific understanding of the ecology of Galveston Bay. He is easily conversant with both real science and politically-correct studies. One can recognize why the Sierra Club was so intent on preventing him and his other witnesses from testifying and in preventing a jury trial at which the public would have heard these witnesses and about the Sierra Club's get rich quick scheme for privately "licensing" the discharge of produced water in return for cash payments.
This article has only touched lightly on a few of the issues raised by Cedar Point Oil on appeal. The picture one gets of our judicial system as a result of reading through this material and almost daily reports of other cases in the environmental law newsletters, etc., is rather frightening. The courts seem ill-equipped to deal with complex, scientific issues and testimony. The judges seem to be susceptible to being mislead by simplistic assertions of apocalyptic consequences rather than insisting on "good science". The more one reads, the more questions are raised.
In future installments of this series, we will look into why the names of a U.S. Justice Department official and an EPA bureaucrat were mentioned in one of the consent judgments filed by the Sierra Club. We will also examine the Sierra Club's conduct after it "discovered" these unpermitted discharges to see whether their failure to report these incidents to the National Response Center and to the EPA makes them guilty of violating the law. Did they use interstate phone calls, letters and other communications to conspire to derive monetary benefit from a scheme to privately license continuing "pollution"? If what the Sierra Club did is technically legal, is it what Congress intended and is it morally defensible? Send us your input and views and keep watching this space!
|
