Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘environment’

Bureaucracy vs. Katrina recovery

Jonathan Rauch has a must-read dispatch from devastated St. Bernard Parish, Louisiana:

Cleanup and repair cost the school system tens of millions of dollars, but federal payment has been slow. Reimbursement for small projects goes through five to 10 weeks of federal and state review, according to David Fernandez, the school system’s financial manager. Any expenditure over $1 million is subject to another four to 12 weeks of review in Washington, he said.

This is the so-called “million-dollar queue.” “Anything over a million dollars has to be reported to Congress,” says Brown, the former FEMA director. “Why do you think that is? Congress wants to make an announcement.” In other words, members of Congress want to be the first to boast of a federal project in their district.

“This is all political,” Brown says. “It has nothing to do with good public policy.” …

On private property, even debris — including, for example, 1,600 tree stumps — had to be reviewed for archaeological value before FEMA would pay for removal.

(“Struggling to Survive”, National Journal, Aug. 11; “Stretchier Red Tape”, Aug. 11).

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“A Tree Falls in Connecticut”

Officials in Milford, Ct. agreed to take down three healthy hickory trees along an avenue after resident Una Glennon “demanded that the trees be removed because one of her grandchildren is allergic to nuts and can’t play in the pool with the other children when the nuts are falling.” Author and Common Good president Philip K. Howard detects the distortive influence of what he calls “legal fear”. (New York Times, Jul. 30). Also: Emily Bazelon, “Trees vs. children: Are nut allergies taking over the planet?”, Slate, Jul. 27.

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Suit silences sub-stopping sonar

Now that litigators from the National Resources Defense Council have won a temporary restraining order from a federal judge under the terms of the National Environmental Policy Act, the U.S. Navy says it will employ less effective passive sonar, rather than active sonar, in exercises off Hawaii intended to simulate anti-submarine warfare. The NRDC complained that when the Department of Defense granted the Navy a temporary exemption from the Marine Mammals Protection Act for purposes of the exercises, it was trying to evade being sued. (” Whale lawsuit forces Navy to change sonar plan”, AP/CNN, Jul. 5). “The Navy, in a statement after the ruling, said sonar was ‘the only effective means we have to detect and quickly target hostile submarines and keep sea lanes open,’ and that sonar operators needed training at sea ‘to protect our nation’s ships, shores and allies.’…. The sonar use is meant to test whether quiet, diesel-powered submarines like those used by Iran, North Korea and China can be detected.” (Tony Perry, “Judge Temporarily Bars Navy From Using Sonar Said to Harm Whales”, Los Angeles Times, Jul. 4) “The Navy says it must practice hunting submarines near the Hawaiian islands because that’s the type of environment where it most likely will face an emerging threat of submarine warfare.” (AP/Houston Chronicle, Jul. 4)(& welcome readers from Michelle Malkin, who provides more background on the controversy).

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A Lawsuit Everyone Can Bring

Can you sue over something that you claim will affect everyone in the planet in the distant future, even if that means that everyone on Earth can file a similar lawsuit now? The Supreme Court may address a similar question soon. The Supreme Court agreed today to consider whether the Bush administration must regulate carbon dioxide to combat potential global warming, in Massachusetts v. EPA.

Twelve states had sued the EPA to force it to regulate carbon dioxide emissions from automobiles. Although carbon dioxide is an integral component of the atmosphere, and does not contaminate or cause cancer, the states argued it constitutes air pollution covered by the Clean Air Act, because it may cause global warming over the long run.

A splintered three-judge panel of the D.C. Circuit Court of Appeals voted 2-to-1 to reject the lawsuit, but the judges in the majority didn’t agree on why. Judge Sentelle would have rejected the suit for not complying with the Constitution’s requirement of standing, under which a plaintiff must allege particularized injuries, not a “generalized grievance” shared by much of the public at large (much less the entire planet). Judge Randolph, by contrast, was unsure of whether the plaintiffs had standing, but concluded that even if they did, and the EPA had jurisdiction to regulate carbon dioxide, the lawsuit should still be dismissed. He pointed out that regulating carbon dioxide on a state-by-state basis, as the Clean Air Act would do, made no sense, since global warming is a planet-wide concern. Thus, the EPA’s decision not to regulate carbon dioxide was sensible. By contrast, Judge Tatel’s dissent argued that the plaintiffs did have standing, since although everyone might be affected by global warming, they might be affected by it in different ways, with a coastal state being flooded while an arid state might become more arid.

In another lawsuit, attorney generals from seven states have sued out-of-state utilities under state nuisance laws, alleging that power plants, by generating carbon dioxide, are causing global warming. New York federal judge Loretta Preska dismissed their lawsuit in Connecticut v. American Electric Power Co. She, too, held that the plaintiffs lacked standing, since they complained of a generalized injury that would be better handled by the political process than by the courts.

If state attorney generals can sue power plants in distant states, that may lead to an explosion of interregional litigation, regional conflict, and judicial micromanagement of out-of-state utilities.

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Around the blogs

“Robert Musil” marvels at the apparent untouchability of a key witness in the Anthony Pellicano wiretap case (Jun. 13) . At Volokh Conspiracy, Jonathan Adler skeptically examines a tendentious piece in Scientific American which claims that the Supreme Court’s pending decisions on two wetlands cases, Rapanos and Carabell, imperil the survival of the Florida Everglades (Jun. 13). The trial of journalist Oriana Fallaci, on charges of “insulting Islam” (see Jun. 11, 2005), has begun in an Italian courtroom; among the many giving it coverage are Dave Zincavage, Michelle Malkin and Howard M. Friedman. And Tyler Cowen expounds his opinions on the “net neutrality” issue here.

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Daryl Hannah and squatting

Ilya Somin notes an aspect of the Daryl Hannah squatting that the media has ignored. By protesting and suing over the revocation of an “urban garden” by a landowner that let the community use the land gratis for fifteen years, Hannah and her compatriots ensure that future landowners won’t dare allow urban gardens in the first place to avoid future litigation expenses if they try to close them down. (LA Times columnist Steve Lopez has some acid comments about the hypocrisy of the limousine liberals involved.) I noted a similar paradox about heritage commissions last year on Point of Law.

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“Nine years of litigation for 3.5 miles of fence”

David Frum expresses skepticism over the short-term efficacy of fence-building—and prints an email pointing out the impossible position employers are in if employer sanctions are enforced.

Meanwhile, Robert Novak reports that the Senate immigration bill gives guest farm workers the civil-service-style right not to be fired except for just cause and puts them under Davis-Bacon, opening up whole new possibilities in employment litigation. What precisely makes this Congress Republican? As an Instapundit reader notes, the Davis-Bacon language might be a poison-pill provision to de facto end immigration hiring, since immigrants would cease to have a wage advantage. Then again, Title VII wouldn’t be half as broad as it is today if Southerners hadn’t inserted poison-pill provisions they mistakenly thought would crater the Civil Rights Act of 1964.

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“Shaking down the defendants for ubiquitous trivia”

Guestblogger Peter Morin earlier this month took note of a bracing decision by Judge David Sills, presiding justice for a California court of appeal, overturning a $540,000 settlement in a Proposition 65 toxic-warning case filed by what he called “bounty hunters”. The National Law Journal has followed on with more details of the case, Consumer Defense Group v. Rental Housing Industry Members, in which a law firm, acting on behalf of a supposed consumer group and complainant, “sued 170 apartment building owners around California and the Rental Housing Industry trade association for failure to warn of the danger of cigarette smoking by tenants anywhere in the building and parking lots where auto exhaust might expose tenants to carcinogens. … the ultimate global settlement included a promise to post a generic warning on buildings and a laundry list of potential sources of cancer provided on a Web site, including furniture, paint, construction materials, cleaning supplies, swimming pool chemicals, pest control and landscaping.” It gets better:

“Trade group wanted to buy its peace and was willing to pay off the law firm to obtain it, in return for which the owners would also get a favorable deal with regard to any future litigation concerning Proposition 65 violations,” Sills wrote. But he saved his wrath for Graham & Martin. “Consumer Defense Group and McKenzie are simply straw plaintiffs set up to enable the law firm of Graham & Martin to obtain legal fees in Proposition 65 litigation. We will therefore refer to the ‘plaintiffs’ by the title most substantively accurate: Graham & Martin,” said Sills.

For our earlier coverage of Prop 65 bounty-hunting, see May 26, 2005 and links from there (Pamela A. MacLean, “Calif. Judge Blasts Firm in Toxic-Warnings Case”, National Law Journal, Apr. 13).

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Prop 65 and Bounty Hunters

George Wallace at Declarations and Exclusions points us to a judge who is not afraid to call them as he sees them — “them” in this case being the lawyers who mine California’s over-reaching environmental law purely for profit. In rejecting plaintiffs’ lawyer’s application for $540,000 in legal fees for their effort, here is the judge’s conclusion:

“Given the ease with which it was brought, and the absolute lack of any real public benefit from telling people that things like dried paint may be slowly emitting lead molecules or that parking lots are places where there might be auto exhaust, instead of $540,000, this legal work merited an award closer to a dollar ninety-eight.”

Much much more for your reading pleasure there.

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