Is It Money Or The Environment? The Debate Over River Watch And Attorney
Jerry Bernhaut / North Bay Progressive / July 11-24, 2002
I am a long-time environmental activist who recently became an attorney. I've been working with Jack Silver as a member of the legal staff of the Northern California Environmental Defense Center.
I was very disturbed by the recent attacks in the press against Jack Silver and River Watch, the environmental group Silver has represented in a number of lawsuits filed against northern California cities for violations of the Federal Clean Water Act by their sewage treatment plants. The basic claim of these attacks is that Silver has exacted large monetary settlements, including attorneys fees, from the cities, through the lawsuits brought on behalf of River Watch, without making any significant contribution to avoiding or remediating environmental pollution.
A claim repeatedly made by representatives of cities in the March 12 Press Democrat article, "River Watch ripped over suits" is that the violations for which they were sued by River Watch were "technical", already known by the Water Quality Control Board, and in the process of being remedied without legal action by River Watch. All violations are "technical" in the sense that they exceed limits for chemical and solid waste discharge in the cities' wastewater discharge permits. The implication in the PD article, without any factual support, is that they are minor in nature. This is simply not true. These violations are ongoing for years, with serious cumulative impacts. I have personally reviewed Water Board files for businesses and wastewater treatment plants that have been in known violation for years without penalty from the Water Board. I've seen paper trails of discussions between Water Board staff and consultants employed by the violaters debating appropriate remediation measures, study results, over many years with no concrete action to fix the problems. This happens, despite the efforts of many well-intentioned Water Board staff personnel, because they are overworked and underfunded, so that they barely have time to keep track of the violations and enforce nominal compliance with monitoring and reporting requirements.
I firmly believe it also happens because messages from higher levels in state government encourage leniency in enforcement. It's been very clear to me, dealing directly with Water Board staff, listening to their half-hearted justifications for years of non-compliance, that they feel constrained in their ability to effectively enforce the law. It's understandable, given these limitations, that spokespeople for the Water Board, as well as the cities, would try to minimize the seriousness of the violations. A common strategy in trying to justify weak enforcement of environmental standards is to minimize individual violations without addressing cumulative impacts. Environmental standards are lower than they should be because of economic pressures, and questionable levels of pollution are allowed under the law. Any violation is significant, especially when cumulative effects are considered. Lax enforcement just adds to the degradation of our natural resources.
Thus the need for private enforcement by citizen groups like River Watch. Legislators understood that the will and resources would sometimes be lacking for adequate enforcement of regulations by agencies like the Water Board. That's why they included citizen suit provisions in statutes such as the Clean Water Act. I've seen cases where some concrete action towards remediation of violations occurred shortly after River Watch filed suit, after years of communications between the Water Board and a violator regarding known violations without any effective action. Silver was told of a recent meeting with Water Board personnel and staff of a number of cities to develop a program for better compliance, as a result of the River Watch lawsuits. The River Watch actions have improved compliance at individual waste treatment sites and created a systemic shift in the direction of compliance, as a result of past lawsuits and the threat of future lawsuits. The attacks on Silver and River Watch represent a backlash and attempt to undermine River Watch's effectiveness. However, judging by a recent successful settlement conference with Crescent City at which I was present with Silver, when push comes to shove city officials will still acknowledge the validity of River Watch's legal claims and respect the ability of River Watch and its attorneys to enforce the law. Crescent City officials cooperated early in the process, avoiding costly discovery and high legal fees. Under the terms of the settlement, most of the penalties went to paying the cost of repairing the city's sewage collection system.
In Fortuna, City officials opposed early settlement, even though there were serious violations, creating a need for extensive investigative discovery and legal motions for River Watch to establish its legal position. By the time River Watch attorneys convinced Fortuna officials that River Watch would prevail at trial, substantial costs and fees had been incurred. Water Board staff and city officials downplay the value of the lawsuits, claiming that violations are known by the Water Board and plans for remediation have been adopted, but years pass without concrete action until River Watch sues. The River Watch lawsuit settlements impose time lines for corrective action as part of consent decrees, which are enforceable court orders. When I spoke to Bob Tancredo, regional director for the Northern California Region of the Water Board, he took the position that the Water Board was already dealing with the problems raised in the River Watch lawsuits, but he did acknowledge that the citizen suits provided "a valuable tool for assurity of enforcement".
Tancredo also said the Water Board was reluctant to impose penalties on small communities with limited resources, as justification for not enforcing stricter compliance. However, when you look at the files for the sewage treatment plants sued by River Watch, a pattern emerges in several cities with a history of wastewater discharge violations, where they have sewage collection systems with defective pipes badly in need of repair which leak untreated sewage into drainage ditches and intake storm water during heavy rains. These conditions result in discharges of solid waste matter and excessive toxic chemicals into the receiving waters, i.e. rivers, creeks and the ocean. Instead of closely monitoring and repairing the collection systems, cities will opt to spend millions on growth inducing new treatment plants which may or may not be necessary to deal with present needs. In the meantime, focus is shifted from dealing with the immediate problems to planning for and funding the new plant. The Water Board regularly accepts plans for a new plant as adequate remediation for collection system problems, even though actual construction of the plant is years away. One common condition of a River Watch consent decree is to force a city to perform a video monitoring of its collection system and repair damaged sewage pipes, which if properly done could forestall the need for a new plant or reduce its size, saving the ratepayers millions. Generally a portion of the economic penalties will go to these repairs. These penalties are a small fraction of the cost of a new plant. If the city cooperates with River Watch and agrees to make needed repairs and properly maintain its system, penalties and legal fees are reduced. The River Watch lawsuits force the cities to fix real problems within a reasonable timeframe. The Water Board allows the cities to continue to fowl the environment while they plan for the eventual construction of new facilities and other remediation.
Spokespeople for the cities claimed in the press that they settled River Watch suits to avoid costly litigation, implying that the cities would have prevailed in court but it just wasn't worth the time and expense. The truth is that River Watch sues only when there is a history of ongoing, serious violations. If the lawsuit is without merit, the city can exact costs and fees from River Watch. If there were any real possibility that a city would prevail, it would be well worth the expense of pursuing litigation to discourage future lawsuits. If all the River Watch attorneys are interested in is money, beating them in court and sending them home with nothing would be a more effective strategy than settling. If the violations were minimal, the courts would impose minimal penalties and fees. It would still be worthwhile for the cities to litigate to discourage future suits. In reality, everyone involved knows that the violations are serious and the courts will impose substantial penalties and fees if the cities litigate. That's why they settle.
All the above points are clear to me based on my own experience and investigation. The murkiest and most troubling aspect of the controversy is the attacks on Silver and River Watch by local environmentalists. I had long talks with Brenda Adelman of the Russian River Watershed Protection Committee, Nadananda of Friends of the Eel River and David Drell of the Willits Environmental Center, the environmentalists who were quoted as attacking Silver in the press. Both Nadananda and Drell complained of intense attacks on their organizations because of the River Watch lawsuits. They claimed the cities' staff assumed the local groups were cooperating in the lawsuits as part of a general assault by the environmentalists. They also complained of a lack of communication from River Watch prior to filing the actions.
Both Nadananda and Drell complained in the press that their working relationships with local governments were damaged by the River Watch lawsuits. Groups like those represented by Nadananda and Drell work through the political process, and develop access to elected officials. They may feel these relationships are threatened by lawsuits, although Nadananda's group has initiated lawsuits. The ultimate question is how can we as an environmental community be most effective.
Jack Silver feels very strongly that lawsuits are one of the most effective tools for environmental protection. Many of us have labored long and hard through the political process, fighting business interests and politicians unduly influenced by business interests, with minimal results. As lawyers, we have the ability to bring more power to the environmental movement. There's no question that the threat of legal penalties can generate results not otherwise obtainable. I recently saw that dynamic at work in the Crescent City settlement.
Adelman and Nadananda questioned the commitment of River Watch and its attorneys to follow up and enforce the terms of settlement agreements, without citing any basis in fact. Anyone can go on the River Watch website, www.northerncaliforniariverwatch.com, to see the specific remediation measures included in the consent decrees, which are enforceable through contempt of court proceedings. There is a master calendar in the River Watch office. Staff follows up on all consent decrees. Information is passed on to River Watch counsel. If there are compliance problems, there is a set procedure with a meet and confer requirement, followed by a settlement conference if there are unresolved disputes over compliance. If compliance is still lacking, counsel can go to court for a contempt order.
In my conversation with Dave Drell, he admitted that Willits had a history of serious wastewater violations without penalties or enforced remediation by the Water Board. Even though he is quoted in the Press Democrat saying that "Silver's settlement demands are damaging our ability to work cooperatively with Willits … and could result in damaging the reputation of responsible environmental advocacy" he told me that he saw the River Watch lawsuit as an opportunity to put more muscle behind local efforts to move the city in a better direction. There was a meeting with Silver, Willits officials and Drell where potential settlement terms were discussed. Silver feels that Drell made a very positive contribution to that discussion. A formal settlement conference was scheduled. Then the mayor of Willits launched another attack against Silver and River Watch in the press, which made Silver feel that the political climate was too hostile for a productive settlement conference. The Willits case is still pending. Silver told me that at this point he is inclined to go to trial to demonstrate the validity of River Watch's claims of serious violations and debunk the claim that cities settle just to avoid the expense of litigation.
Silver feels that he deserves to be paid on a level commensurate with the rates of other skilled attorneys when he confers a public benefit through his legal actions. There's no question that his legal actions confer a public benefit, despite claims to the contrary from city officials and Water Board staff. If he was simply interested in making money, he could represent the polluters. I clerked for a well respected environmental attorney who "works both sides of the street", defending polluters as well as representing plaintiffs against polluters. There's no question that Silver is a dedicated environmental advocate. If there is anything in Silver's approach I would take issue with, it's what I see as his impatience with the need to communicate with people who don't have his understanding of the complexities of litigation, and his impatience with the political process. Silver is highly skilled, self motivated and strong willed. He feels he can accomplish much working on his own and with a few like-minded individuals.
There is no easy resolution to these differences within the environmental community. The willingness of three prominent environmental activists to join with environmental polluters and inadequate regulators in publicly attacking a fellow environmental advocacy group and its attorney represents one more sad example of the tendency of progressives to implode and self destruct from within under pressure. I'm sure the cities' staff and officials have differences with the Water Board, but they had the strategic wisdom to join forces in attacking River Watch. Unfortunately the powers that be are generally more skilled at acting out of common interest than those who represent the public interest. Hopefully we can learn from this episode and move forward with a more united front.