The Reality of Environmental Litigation

1998

EDITOR'S COMMENTS: While this article was written almost seven years ago, its truths are more relevant today than ever. Through ignorance of science or scientific procedures on the part of judges or their clerks, overzealous political beliefs, or attempts to  legislate from the bench, the damage done in the name of the 'environment' is immeasurable.  Cost increases, bankruptcies, businesses and jobs leaving the U.S.,  increased costs to small business and to households; while millions in revenues are awarded to the lawyers that bring the suits through "citizens suite" awards by the sitting judges are all the results of a broken system.

The success of environmental litigation that the public is made aware of has little to do with environmental harm, but has everything to do with evidentiary procedures, the standing judges give EPA, and the courts views of regulations. The cost to the public of this litigation against U.S. businesses, state and local government, and individuals is disastrous: the loss to this nation of hundreds of thousands of jobs, decrease of capitol formation, lost taxes (increasing our burden), and businesses being driven out of this nation. There is a point at which new and stricter environmental regulations will result in no discernible physical benefit to human society or the human physical condition - even mother nature is not pristine. Every single American is hurt by this fallacious process, a process that has less to do with environmental protection, and everything to do with political power and millions of dollars in revenue for the environmental organizations.

The following article by Mr. John McGowan, President of Red Cedar Oil Company, backed up by court records, demonstrates the reality of environmental litigation, including not even being able to present relevant scientific evidence that goes to the heart of a case.

The courts have never succeeded in telling the truth in the environmental realm. It ís not because judges are not fair-minded or conscientious. It lies in the way the judges have structured the cases of environmental law and the handling of evidence. Judges consider compliance with environmental rules to be the only issue to consider in their courts, not if the rules are correct or not. These rules are based upon interpretations of academic science by regulatory scientists. Because the rules appear to be based on scientific findings, the courts feel incompetent to question them.

In a finding of fact, a judge will not overrule a jury. The jury is supposed to be impartial, picked from the body of the people to judge once and for all the guilt or innocence of a person. But environmental law is different. It hinges on regulations adopted by government authorities. In these cases judges simply will not overrule a regulatory agency. If you have a disagreement with an environmental agency and end up in court, the court will afford the agency the "substantial evidence" rule on all issues of science; it will consider the regulators to be the same as a jury. Any scientific evidence that a defendant attempts to put before the court is considered irrelevant.

Do you remember the man who had the apple cider company somewhere in Vermont? He got a jury trial, which is rare. He wanted to prove to a jury that his apple cider plant was not polluting the stream behind his property. He was not allowed to do that by the rules imposed by the judge, who instructed the jury that they could only decide if the man had violated a regulation. Here is an example of how the courts fail to allow people to prove their case through scientific evidence.

Now, we can say over and over again that government regulations are trampling on private property rights. But what if the earth really is in danger? At some point we are going to have to prove whether or not this is true. We cannot stand on Constitutional rights in the face of dire consequences predicted by environmentalists. Proving those things falls to the ability of people such as petroleum engineers, practicing physicians, and individuals in society who deal in the applied use of science.

When we work in the oil field, our oil wells can blow out or cave in if we do not do our work properly. If we build a bridge improperly by applying science incorrectly, it will not stand up. These experiences force people to apply science honestly. Those who do the world's work are the ones who have the ability to make science understandable. The people who apply science need access to a fair forum. If that existed, practically all activist environmentalism would fail. One could prove his case to any non prejudiced jury who would observe evidence honestly.

When I went on trial in Houston, the Sierra Club lawyers were able to enlist as their witnesses environmental scientists who worked in state and federal agencies. When I sat down at the table with my lawyers and looked across at the Sierra Club, there were several other lawyers there helping them with this trial. These lawyers were from the Texas Natural Resource Commission and EPA. So the judge, like all judges traditionally, considered this as if it were an appeal from a regulatory agency. He considered himself to be in an appellate situation. It was a foregone conclusion in his mind that I had been found guilty of doing something wrong. The regulatory agencies were all there, all represented and all sitting at the table with the Sierra Club.

Our science was not considered relevant. The judge would not let us testify. He let the Sierra Club testify, but not us. The Sierra Club based most of its case on our own disclosures which we had made prior to trial. We made these disclosures in response to data the Sierra Club had provided the court. Their proof consisted of piles of research done by regulatory agencies, consisting of the entire history of bay environmentalism. It was all right there. I read most of the research articles and many of the reference articles listed in them. I turned the rest over to two oil field scientists who work on oil wells. When I asked one of them how it was coming, he said: " I'm getting it, but it hurts my head." Neither of these scientists had ever seen science done this way. It was all qualitative study with no quantitative values written into it. There were no relative values. Significance was applied to isolated observations where no baseline study existed or would ever be conducted. We began to realize that what the Sierra Club presented as bay science was just a replication of what we geologists know as the "sedimentary cycle".

The cycle is simple. When water is distilled, it becomes acid; when water precipitates as rain, it becomes acid. These processes have been going on for millions of years and have nothing to do with fossil fuels. The cycle works as follows: when rain falls on the land, it is slightly acid and dissolves the minerals from the soil (mercury, lead, zinc, calcium, antimony) becoming somewhat neutral by the time it reaches the streams and flows to the ocean, which is alkaline. (The ocean has a pH of about 8.)

Alkaline ocean water is unable to hold minerals in solution. Minerals carried to the sea rapidly precipitate to the mud in the ocean floor. These ocean substrata, where oysters, shrimp and the organisms that fish feed upon live, become rich in minerals such as zinc, lead, copper and mercury. When these ancient sea bottoms are up-lifted to form landmasses, rain falls upon them to dissolve the minerals again and wash them to some new sea, starting the cycle all over again.

Now, is it any wonder that oysters have mercury, lead and zinc in them? The Sierra Club data revealed that Galveston Bay, which is supposed to be one of the most polluted bays in the country, was actually no different from any other pristine bay in the country. The confusion arises from the different ways in which scientists and environmentalists work. Most of the scientists who do this work are good academicians. In their academic endeavors they know not to make hypotheses when they are not allowed to. They observe honestly. The environmentalists on the other hand use this work, take it out of context, and build their conceptions. We began to notice as we read through the papers that these very honest scientists kept finding, to their surprise, that the amount of mercury in the oysters in Galveston Bay was the same as that found in pristine bays.

These academic scientists do a narrow line of research. They did not consider it their job to hypothesize about what causes these things. But if they had been sedimentary scientists, they would have understood. This is the cycle, the sedimentary cycle, we all know and understand. One of the two scientific witnesses that the Sierra Club used, Dr. Shipley with Texas Natural Resource Commission, had studied our water; he admitted that the complained-of contents were much less in our discharge than those his agency allowed for other industries. However, we were not allowed to get a permit from his agency. We had to get it from the Texas Railroad Commission, which we had done; and he admitted our discharge was permissible under their rules.

The Sierra Club's other witness, Dr. Duane Chapman, was one of those scientists who hypothesize. He had conducted a study on sea urchins. He took their eggs, fertilized them and then tried to get them to live in the brine that came out of oil wells. There were also two other scientists from Louisiana doing the same studies. Because the sea urchin gametes did not do well, the scientists concluded that oil field brine is toxic. That was one of the major bases for not allowing people to discharge saltwater from oil fields into the country's bays.

Now bear in mind, these scientists have been traveling around the globe giving seminars on the sea urchin test. To study their findings, we got their test protocol and found out that they made a correction for the oil field brine, which is much saltier than seawater. They were mixing distilled water with the brine in order to get the salinity right. Then they put in the sea urchins, which did not live so well.

You remember, as we discussed earlier, when you precipitate water it is going to become acid. The sea is alkaline, very alkaline. It has a pH of 8. A sea urchin can only live in the deep oceans. It has an extremely narrow range of tolerance for pH, which varies little in the deep ocean. That is why the urchin lives only in that environment.

Now a croaker, shrimp or oyster can handle wide variances in pH. These creatures live in bays which range widely, but not the sea urchin. The sea urchin requires a minimum pH of about 7.6. Oil field brine is neutral. It has a pH of about 7, about the same as a river. We found that these scientists had been taking distilled water with a pH of about 5.5 or 6.0 and mixing two parts to one with the brine, thus reducing the pH below a sea urchins tolerance level. It was the distilled water that was killing the sea urchins, not the natural components of oil field brine. These environmental scientists did not have a bridge to cave in or an oil well to blow out that would make their error obvious to them, and for this reason they continued doing the test in this manner for over six years.

You read articles by environmentalists claiming that certain industries are destroying the ecosystem. If you were to read the actual studies, you'd find that the honest research scientist doing the study does not use the word "ecosystem" when describing a situation. He might say, for example: "just opposite the discharge pipe such and such ". However, the ecoscientist describing the situation will include no statement limiting the findings to the area immediately opposite the discharge pipe. The ecoscientist simply describes the negative results with no limitation. The average citizen or commentator reading the article thinks it applies to the entire ecosystem. When confronted , after the fact, the environmentalist might say, "I meant the ecosystem around the discharge". However, it is too late to clarify the statement because the public now thinks the entire ecosystem is contaminated.

So we tried our case in Houston, and the judge (we were not allowed a jury trial) ruled against us. He fined us $180,000 and gave the Sierra Club Legal Defense Fund $88,000 in legal fees. One more interesting thing is that, as his basis for not allowing us to testify, the judge ruled that Cedar Point's disclosures were inadequate. You may remember that in fact the Sierra Club had made great use of our disclosures. They used our data, because, for example, we had disclosed to them the amount of lead in our discharge prior to the trial. We could not deny it, nor would we. What the judge precluded us from doing was testifying that the Houston, Texas, tap water had ten times as much lead in it. Thus the Sierra Club had the advantage.

In ruling against us, the judge copied word for word the Sierra Club's pretrial memorandum finding of fact. (The Sierra Club had written a pretrial memorandum of fact; that's where each lawyer tells the judge the facts he anticipates will be proven at trial.) The result was that it appeared that I had testified. The judge forgot he had not let me testify. This shows how little conscience this judge had for our side of this trial. Because the law afforded this judge every opportunity in the world to reach a just ruling, we thought for sure we would win on appeal to the Fifth Circuit. However, we were not so lucky. The head justice wrote a forty page opinion in justification of everything done by the Sierra Club, the EPA and the judges in Houston. During the hearing, another justice stated, "It sounds like Mr. McGowan did not want to buy one of those Sierra Club permits". Clearly this judge knew what the deal was but chose to go along with the ruling anyway.

The thing I have noticed about today's judges is that through the learning of the law and what they believe to be the practical application of the law, they have generally come to develop a tolerance for injustice. Congress could help us by passing laws that would create some forum or impartial body to determine the facts as they apply to the science of environmentalism. Right now the judges have shut that possibility out completely. For twenty years we have found judges unwilling to consider scientific evidence presented by defendants in environmental cases.

We must find judges who will not manipulate the laws written by our elected representatives. One kind of manipulation is overreaching. If judges can take the Wetlands Act -- a law that was designed to prevent dredging and dumping spoils into navigable water -- and expand the act to mean that I cannot cut down a willow tree on the edge of a cotton field, then no matter how well Congress writes its laws, it will always fail to accomplish its intended purposes. Another kind of judicial manipulation is failure to act on the law. Congress included a requirement in the Clean Water Act prohibiting the enforcement of regulation that interferes with the conduct of industry unless the regulation is essential to protect clean water. On all occasions when the EPA has been questioned on this basis, they have simply declared that the rule is essential to protect fresh water. There is no effective appeal from their declaration. The issue in an instance such as this is essentially, and that is what begs for interpretation by the courts. Congress cannot correct this situation by passing more laws of this nature. Instead we must find ways to improve the judiciary.

The last point I would like to make is that people in public service in the regulatory agencies are for the most part decent, honest people. The law is just structured in such a way that they are unable to exercise their judgment. Without law and some appeal, their judgment can never be substantiated. If those in a state agency make a decision that the federal agency does not like, where do they go for a hearing on the relative merits of their judgment as opposed to that of the EPA? Under these conditions regulatory science cannot correct itself when new events reveal a position to be wrong. These state and federal employees have just as much at stake in judicial review as do the businesses operating in the field.

THE BASIC FLAW IN ENVIRONMENTAL LITIGATION

Cedar Point could have avoided going to trial and continued discharging by paying as little as five thousand dollars to the Sierra Club lawyers. But Cedar Point looked upon the citizen's suit as an opportunity to put environmental science on trial before a jury. If Cedar Point were lucky enough to draw a good judge, we hoped to get a ruling that would put an end to a particular abuse of science in which the EPA has engaged for many years. This single abuse has caused much of the confusion and environmental litigation that has overburdened the legal system. The abuse lies in how environmental scientists are allowed to apply significance improperly to the observations of academic researchers.

For our trial, we had constructed a poster board which showed Galveston Bay. On this poster board we placed forty-seven additional bays of the same size to represent how many times the bay is displaced by ocean water each year because of currents and tides. Also we placed six bays of the same size on the poster board to represent how many times the bay is displaced by the annual flow from the Trinity River. We then calculated how big an area of the bay it would take to hold the annual oilfield brine discharge into the bay. This area was drawn on one bay on the poster board. Its size was a dot which could only be seen at a reading distance. This was done to give the judge and jury (that we had hoped to have) a perspective for the quantities involved.

Now imagine that you are Cedar Point's judge. With this poster board in full view, study the following examples of the charges against Cedar Point Oil Company and see if you can determine what the abuse is and define it. Then see if you could construct a judicial ruling that would purge our system of the litigation that has been based upon this form of false science:

Cedar Point is charged with violation of the Clean Water Act because its discharge contains 200 parts per billion (ppb) zinc. Tests conducted by EPA biologists have determined that concentrations over 120 ppb zinc are toxic to marine organisms.

Fact: The Trinity River that fills the bay six times a year has a natural zinc concentration up to 170 ppb. (Remember to compare the bays on the poster board to the one with the dot that represents saltwater from oil wells.)

Fact: The EPA has in effect determined that the Trinity River should not be allowed to flow into Galveston Bay, because it is toxic to marine organisms.

Fact The mud under Galveston Bay where shrimp, oysters and the organisms that fish feed upon live (remember the sedimentary cycle) contains 90,000 ppb zinc naturally. Cedar Point is charged with violation of the Clean Water Act because the calcium-magnesium ratio of oilfield brine is reversed from that of ocean water. Testing by environmental scientists has determined that a reversed calcium-magnesium ratio is toxic to marine organisms.

Fact: The calcium-magnesium ratio is reversed in all river water. Again these scientists have proved in effect that rivers should not flow to the ocean.

Cedar Point Oil Company is charged with violation of the Clean Water Act because the amount of ammonia in its discharge exceeds the standard set by the EPA and could have been a factor in the brine's failure to pass the sea urchin test conducted by federal biologists prior to the trial.

Fact: Rain creates ammonia when it falls through air.

Fact: Most rivers have natural concentrations of ammonia that exceed the tolerance level for ammonia in the sea urchin test.

Remember that one of the reasons judges will consider only the issue of regulatory rules in their courts is that they do not feel capable of making safe judgments as to the potential for harm a thing creates. Now could anyone of good mind not see how harmless Cedar Point's discharge was? By this time the reader should have seen a pattern of misuse in the way environmental litigators apply the significance to academic data.. He should have formed in his own mind what he would do if he were the judge in this case. As the judge in this case, he might have asked the Sierra Club how many of the twenty-six complaints against Cedar Point's discharge are identical to the three that he had already heard. He would have learned that only three of the complaints differed. Then he would have been justified in telling the Sierra Club that the court will not hear the other twenty complaints of this same nature; and to be certain that other judges in the future would not be burdened with this type of complaint, he would have constructed an order which would, by precedence, guide future judges when faced with this same situation. This is the ruling Cedar Point wanted from the court:

There is no potential for harm to a thing when the concentrations of elements in a discharge are insignificant relative to the concentrations and amounts it receives from natural sources.

We did not get this ruling because regulatory rules are based not upon established principles of science, but upon compromise between advocacy groups. Judges know and are reassured by the fact that environmental rules are derived through a consensus process. Industry leaders are in constant negotiation with rule makers, as are leaders of environmental organizations. Members from both groups serve on the board of the Galveston Bay Foundation, along with members of both state and federal regulatory agencies. Members of the Sierra Club, the Audubon Society, oil industry, mayors, the mayors' wives, judges, college presidents, and business leaders all want to prevent Galveston Bay from being polluted. They serve on public boards and commissions which generate environmental rules. These community groups represent the cooperation-seeking side of leadership in our society and, while the groups may disagree on the specifics, by working closely together, they develop a loyalty to their rules, the product of their cooperative process. Judges know how much work and service goes into this vital and necessary function of government and, because judges are not scientists, they have come to believe that the scientific basis of these rules can not be questioned when individuals defend themselves before their courts.

Rulemaking, however, is not the place for the uncompromising truth of basic science -- a thing too rigid and considered by many advocacy groups to be impractical to the rulemaking process. People who apply basic science represent another side of our society. They are also necessary to the rulemaking process. They are the ones who use rules and improve them when the court system requires hard proof of facts before acting against people. Many members of the group engaged in the rulemaking process believed that Cedar Point should not have challenged the Sierra Club in court; these matters, they believed, should be (and as it turned out were) worked out. This was accomplished with some cooperation on the part of the federal judges. But even though Cedar Point was the one sued, it was still unfairly perceived by many to be the uncompromising party.

The Sierra Club lawyers know that holding a regulatory violation up to judges is like dangling a cricket in front of a bream. Judges will be able to see nothing else. So when Cedar Point filed its first action asking the court to require the agencies to correct this twenty-three year ongoing error, the judge did not look upon this as a responsible effort to follow the law; he saw it as an attempt to evade the rulemaking issue. When the oil company showed the court how Congress forbid the filling of citizen's suits except when complainants are directly harmed, the judge likewise considered this to be a technicality. Additionally he would not consider the fact that the discharge is required by law to have violated some standard or limitation set by government agencies before a citizen may file charges. The rulemaking error was seen to be the most important issue. When the company tried to show that their saltwater was not polluting anything, the judge would not let them put on proof ñ if the discharge was of concern to the Sierra Club and the regulatory commissions, the judge knew it must be polluting something. When these judges signed the consent orders, allowing other operators to continue discharging in return for payment to the Sierra Club, they could only see that this met with the approval of the EPA, Justice Department and the Texas Natural Resource Commission. The judges would not question the policy of these agencies. When the judge ordered Cedar Point to shut down, fined it and awarded money to the Sierra Club lawyers, the judge intended to base his ruling solely upon regulatory concepts. He could not see that the only thing that differentiated Cedar Point from all of the operators still discharging to the bay was that it did not willingly pay money to the Sierra Club.

Nothing changed as a result of the Sierra Club's litigation campaign ñ the same operators continued operating with the same permits and an outstanding number of rulings were generated by federal judges. However nothing of value was created as a result of these rulings for the environment or for environmental litigation.

Fortunately at the same time another thing is going on in environmental science: applied scientists are finding ways to make the truth so revealing to ordinary people and judges that they can make safe judgements for themselves about environmental concerns. For example, for decades environmentalists listed polycyclic aromatic hydrocarbons (found in coal soot and known as PAH) among the most deadly carcinogens and could tell your chance of dying when exposed to a few parts per billion. Then working chemists found that PAH was produced when meat is grilled. Environmentalists informed an alarmed people not to grill meat. Later research discovered that PAH is produced by any form of burning, (gasoline engines, forest fires, agricultural burning, and cooking foods in general), making it obvious that it is harmless in small concentrations. Nevertheless, the EPA today still regulates PAH in the same manner as before, disregarding the fact that there is a threshold amount below which things become harmless. The EPA continues to regulate in this matter because for over thirty years all of their formulation used to predict risk has been performed using the linear risk equation. The linear risk equation presumes that if a certain amount of a substance is found to cause harm, half that amount will cause half the harm, a tenth will cause a tenth of the harm. This is carried on down to parts per billion. This equation does not recognize a threshold below which harm does not occur. If this scientific truth were recognized, the EPA would be forced to adjust all of the standards and limitations imposed upon state agencies and American industry. More importantly, because environmental litigation frequently involves amounts below this threshold, much environmental litigation would end. The EPA is allowed to continue regulating in this manner because the rulemaking process lacks the discipline to enforce strict adherence to the rules of science.

In environmental litigation, judges have adopted the rulemaking process as their primary finder of fact. But the rulemaking process is the antithesis of the rule of law. Due process demands impartiality; the rulemaking process involves advocacy. Law demands specifics; regulators will not recognize specifics when specifics conflict with general rules. Law deals in absolutes and hard facts; rulemakers prefer the subjective and intend to err on the side of cautionî. Rules of evidence in courts demand authenticity, relevance and documentation, all of which are only loosely observed in the bureaucratic process. Rulemaking seeks compromise; law searches for the truth. And where individual rights create the greatest problem for rulemakers, good law honors the rights of individuals.

Do not misunderstand me. I am not denigrating the process of compromise and cooperation. It is necessary to human existence and essential to the function of our executive branch of government. It is just that rulemaking is not an effective truth finding process, but it is a process that can function very well without the participation of our judges. It is this participation that allowed the Sierra Club to use the judiciary as the inadvertent instrument of their extortive scheme. The courts have a separate function also vital to successful human existence. By honoring each person's right to a fair and impartial trial, they assure that the product of litigation is the truth. When individuals challenge regulatory concepts in court, they are not dishonoring the cooperative process as the judges in Houston, Texas, believe. They are honoring the process by performing a function that is necessary to the improvement and perfection of the law.

There are certain people in industry who understand the limitations of the rulemaking process; they know a great deal about their particular science and what is needed to improve regulatory laws. When actions are taken against these skilled people by environmentalists or government, they are the ones who elect go to court to defend themselves. There are also certain judges who understand that it is the role of the judiciary to interpret the law; they know that they cannot do this without determining the basis of the case before them. These are the judges who improve and simplify the law through their rulings. The basis of environmental statute is the prevention of harm; it is not the justification of government regulation (whether mismanaged by the bureaucratic agencies, as in this case, or not). There is a significant difference between these two things. When judges realize this difference and once again provide citizens with a fair and impartial forum in which to defend themselves on the issue of harm, environmental litigation will begin to make sense.