Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘environment’

Enviro suits sap wilderness upkeep budgets

The Boundary Waters Canoe Area Wilderness in Minnesota, described as the nation’s most heavily visited wilderness area, is a part of the Superior National Forest. These days the forest’s managers

face the financial repercussions of legal decisions they say are stripping scarce resources from their wilderness budget, undermining maintenance work, and leaving many wilderness restoration projects on hold….

While many environmentalists fervently believe that such suits help protect the wilderness, Forest Service officials say many of the agency’s legal expenses come straight from the Superior’s wilderness budget— money that would otherwise pay for the kind of on-the-ground maintenance and restoration work that everyone seems to agree is badly needed in the nation’s most heavily-visited wilderness area.

“When you start figuring out what that means in terms of hiring wilderness rangers or buying fire grates or latrines, it has a huge impact,” said Barb Soderberg, public affairs officer for the Superior National Forest. …

The local forest officials receive a modest $1.5 million a year to manage the 1.1 million-acre wilderness area. According to its supervisor, the forest has been in court continuously since 1949. Under the “one-way” fee structure of federal environmental law, the forest like other defendants can be ordered to pay a plaintiff’s full attorneys’ fees even if the plaintiff wins on only some issues in a case, but cannot collect itself even if it manages to prevail on all issues. Last year a court ordered the forest to fork over $90,000 to prevailing environmentalist lawyers from the elite Twin Cities law firm of Faegre & Benson. Not by coincidence, the forest has found itself obliged to slash its budget for temporary wilderness rangers, from $240,000 to $135,000, “in large part due to ongoing litigation costs”.

The environmental representatives contacted for this story all acknowledged they don’t weigh the costs to the Forest Service when deciding whether or not to file suit against an agency decision….Brad Sagen, the new board chairman of Northeastern Minnesotans for Wilderness, said it isn’t his organization’s job to consider costs of lawsuits— indeed, he called the question “absurd.”

In fact, Sagen and another environmentalist expressed surprise that legal expenses and payouts come out of the agency’s operating budget, apparently unaware that such a practice is widespread in government, commonly defended as a variety of accountability that helps give agency officials proper incentives to bring their activities into full compliance with all applicable laws (if that’s possible).

Meanwhile, environmentalists are piling on with more new lawsuits, over a new forest management plan and a snowmobile trail, while continuing to pursue an old one about motor quotas. Much, much more here for those with an interest in this area. (Marshall Helmberger, “Environmental lawsuits sap U.S.F.S. wilderness maintenance budgets”, Ely, Minn. Timberjay, Jan. 26)(profile of author at Minnesota Public Radio).

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Wants $1.5M for cops’ seizure of 114 frozen cats

Tennessee: “A Murfreesboro man charged with animal cruelty after more than 100 frozen bodies of cats were found in freezers in his home is suing authorities for $1.5 million. The lawsuit was filed exactly three years after authorities confiscated 114 frozen bodies of cats and kittens from William Terry Davis’ home in an upscale golf course community in Murfreesboro.” Davis is represented by attorney Harold H. Parker. (Clay Carey, “$1.5M suit filed over frozen cats”, Gannett/Murfreesboro Daily News Journal, Jan. 6; The Smoking Gun; “Man Sues Police For Seizing Frozen Cat Bodies From His Freezer”, AP/WTVF, Jan. 6; Nashville Scene, Jan. 5).

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Plaintiffs’ counsel in Exxon Valdez case will try to survive on share of lowered verdict

The WSJ’s Law Blog reported recently on the joy being experienced by lawyers in the firms representing plaintiffs in the Exxon Valdez case, their spirits dampened only mildly by the Ninth Circuit’s recent reduction in the punitive award from $4.5 billion to $2.5 billion. Those firms include traditional plaintiffs’ firms such as Milberg Weiss, but also firms normally seen representing defendants, such as Davis Wright Tremaine and Faegre & Benson.

How do Faegre & Benson lawyers feel about the prospect of sharing in perhaps one-third of $2.5 billion? “It’s great,” said partner Brian O’Neill to the WSJ. Any grief due to the $2 billion reduction is probably tempered by the amazing $2 billion in post-judgment interest that will be tacked onto the final bill. (Actually, maybe that’s not amazing in itself, since the case has been pending since 1989. Still, the interest “is not chicken s___,” as O’Neill put it.) O’Neill said of the titanic fee that is coming their way, “This is one of the few chances a bill-by-the-hour guy and a bill-by-the-hour firm has to get ahead.” I for one have been worried for some time about how the partners in these little “bill-by-the-hour firms” were managing to get by, so it’s good to know that for once they may have been able to afford that second can of beans for the family at Christmas dinner.

Damages in the case were estimated at about $500 million. The Ninth Circuit basically held that the evidence did not warrant a punitive award that went to the limit of what is permitted under State Farm v. Campbell, a 9:1 or “single-digit” ratio, and reduced the ratio to 5:1.

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“Blaming cars in California”

Steve Chapman on attorney general Lockyer’s suit against automakers for facilitating carbon emissions:

So serious is the harm from this conduct that Lockyer wants automakers to … keep doing it. The usual remedy for a public nuisance–say, someone in a residential neighborhood holding raucous parties every night till dawn, or letting vicious dogs run loose–is to stop it. But the state doesn’t propose that they quit selling their products to Californians or switch to zero-emission cars. Instead, it asks the manufacturers to turn over large sums of money while continuing to commit their terrible wrongs.

That should be a clue to something Lockyer passes over: While cars may have drawbacks, they also have benefits, and most people would not be willing to give up those benefits or pay a lot more to enjoy them. That combination of virtues and vices makes autos well-suited to regulations reflecting a democratic consensus, and a poor candidate for control by the courts.

Read the whole thing (Chicago Tribune, Dec. 21).

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Tree hazards, cont’d

This time from the U.K.: Simon Jenkins has some choice words in the Guardian about the tendency to turn a relatively rare phenomenon — injuries caused by tree falls — into the occasion for legal punishment, and the undesirable incentives this creates for those entrusted with the care of trees. (“Those who walk under trees are at risk from these terrorising inspectors”, Nov. 17). More on tree hazards: Jun. 11, Jul. 31 and Nov. 27, 2006; Apr. 30 and Jul. 19, 2005; Nov. 16, 2004; Mar. 12, 2002.

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Lockyer flayed on autos-‘n’-global-warming suit

It’s “kooky” and “trivializes a serious problem”, editorializes the Los Angeles Times: “California shouldn’t be in the business of filing meritless suits to gain leverage in other cases“. “It’s not his job to make law through frivolous lawsuits,” opines the San Jose Mercury News (via Wilson). It’s “reprehensible… little more than a political stunt,” adds the Orange County Register. Veteran political columnist Dan Walters of the Sacramento Bee terms the suit “Lockyer’s bid to become the champion of cheesiness“. One who does like the suit, curiously enough: an environmental adviser to Gov. Schwarzenegger named Terry Tamminen. And the San Francisco Chronicle investigates: what do state lawmakers drive? More here, here and here (cross-posted from Point of Law).

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Calif. AG sues automakers for global warming

In a first-of-its-kind suit, California Attorney General Bill Lockyer is demanding damages from automakers for the impact of global warming. “Because, after all, the California attorney general is the one who should be deciding national policy on the global warming controversy,” notes Ted at Point of Law. Even accepting Lockyer’s contentions at face value, autos sold in California contribute less than 1 percent of global greenhouse-gas emissions (David Shepherdson, “Calif. sues over auto emissions”, Detroit News, Sept. 21).

Is Lockyer making it up as he goes along with the new suit, legal-theory-wise? It would seem so. His theory that autos constitute a nuisance have never been enacted as law even by the California legislature, yet he’s asserting it retroactively to punish past behavior by Detroit and Japan worldwide. His views clash strongly with those held by elected officials in many other states, which is one reason our system gives the U.S. Congress, rather than the California attorney general, the right to set national environmental policy. His notion that internal combustion engines might not be unlawful in themselves, but constitute nuisance in this case because manufacturers could be doing more to minimize their impact, makes as much sense (which is to say, no sense whatever) as if he sued California’s own drivers on the grounds that they contribute to the problem by taking unnecessary trips.

Prof. Bainbridge has quite a bit more to say about the abuse of power involved in using this type of litigation as an end run around the political branches of government which are the proper locus of authority on policy matters of this sort (Sept. 21).

Reader Earl Wertheimer writes: “I would rather see the automakers simply agree to stop selling cars in California. Let them walk & bicycle for a while. This would promote better fitness and also reduce future obesity lawsuits.”

Reader Loren Siebert writes: “I wonder if the discovery process will include how many motor vehicles the state of CA has purchased and operates.” And Nick Fenton at DTT Buzz has suggestions for more litigation (Sept. 20).

More: Lockyer “is unlikely to win” the suit, according to legal experts interviewed, especially since “a similar case brought by California and other states against utilities companies in 2004 failed in the courts”. “Even with a small chance of success, environmental advocates say the new legal action is useful and necessary”, one reason being “to pressure carmakers”. “I hope that automakers realise this will be the first of a series of lawsuits,” says Jim Marston of Environmental Defense. (Roxanne Khamsi, “California faces uphill battle on car emissions”, New Scientist, Sept. 22). EconBrowser (Sept. 24):

…the key question in my mind is not the extent to which reducing greenhouse emissions from vehicles may be a good idea, but rather whether, under previously existing U.S. law, it has been lawful to manufacture cars that emit carbon dioxide. I submit that it has, and if a judge somewhere now creatively determines that a company can be punished for such perfectly lawful behavior, then I fear that America is no longer a nation ruled by law, but rather ruled at the whim of whatever those currently wielding power happen to think might be a good idea.

Yet more: Brian Doherty, Reason “Hit and Run”, Sept. 21.

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Dissent on global warming? See ya in court

“For no apparent reason, the state of California, Environmental Defense, and the Natural Resources Defense Council have dragged [MIT’s Alfred P. Sloan professor of meteorology Richard] Lindzen and about 15 other global- warming skeptics into a lawsuit over auto- emissions standards. California et al. have asked the auto companies to cough up any and all communications they have had with Lindzen and his colleagues, whose research has been cited in court documents.” (Alex Beam, “MIT’s inconvenient scientist”, Boston Globe, Aug. 30).

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