Recently in Environmental/Toxic Torts Category

Updating our Chevron/Ecuador/Lago Agrio coverage:

Roger Parloff tweets:

Q: what do you get when you lie to the press nonstop for 7 years straight? A: a puff piece in the nyt. Bloomberg BusinessWeek isn't impressed, either.

Meanwhile, an Ecuadorian judge admitted to fraud in the proceedings, and Patton Boggs may be beginning to regret its involvement. A WSJ op-ed notes the success of Chevron refusing to be a corporate defendant that cowers in settlement when faced with fraud.

Chevron is meanwhile opening another front against Ecuador, through enforcement of treaty obligations in international arbitration.

Stratus Consulting retracted its expert report. I had some concern that Chevron was winning solely through bullying: I've seen firsthand litigators use scorched-earth tactics to try to force me to apologize for and retract statements that were true. But then I saw Keker & Van Nest claim that Donziger had stopped paying them and they had to withdraw from their defense of him. This is the surest sign yet that Donziger is in the wrong. As Judge Kaplan's order noted, "this is a case in which those who control whatever money is available to finance litigation efforts have decided not to pay these lawyers." If Donziger had even a smattering of truth on his side, the small chance of a jackpot against Chevron would be more than enough to obtain litigation financing. Yet apparently he is unwilling or unable to provide sufficient reassurance in litigation financier due diligence.

Reuters has had a lot of good coverage, but it's unfortunately all behind a paywall now.

Vinny Sidhu
Legal Intern, Manhattan Institute's Center for Legal Policy

In the June 30th letters to the editor section of the New York Times, Lisa A. Rickard, president of the U.S. Chamber of Commerce's Institute for Legal Reform, made her feelings clear about a June 19th editorial entitled "One-Sided Bill on Asbestos Injuries":

There is plain evidence that fraud and abuse already exist in the trusts set up by companies to pay asbestos claims.

A 2012 House Judiciary Committee report detailed highly questionable claims, citing numerous examples. In March, The Wall Street Journal chronicled thousands of highly questionable trust claims in a major front-page article.

The Furthering Asbestos Claim Transparency Act simply requires the trusts to make public information that they already collect about who has made claims against what trusts. And we believe that it places zero burden on claimants.

Most asbestos trusts have recently lowered their payouts to claimants because they are running out of money because of increased claims. Those who are indeed pro-claimant should support legislation that will ensure money for legitimate future claimants. Those defending the status quo are really supporting the current cash machine system that primarily enriches plaintiffs' lawyers.

Before concluding that a bill is "one-sided," the NYT may find it prudent to scrutinize the compendium of information available on both sides of the issue to ensure they are not advocating against the interests of the very claimants they profess to be protecting.

"Environmental Protection Agency officials are making an 'on-going practice' of 'near-immediate turnaround to provide records to environmentalist pressure groups,' while imposing 'starkly disparate treatment of groups with different perspectives but which are otherwise similarly situated,'" complains a Competitive Enterprise Institute FOIA request seeking data on the practice, as well as on the disparate use of fee waivers to create barriers to transparency. [Wash. Examiner]

Victor Schwartz, Phil Goldberg, and Chris Appel write in The Recorder ($) on the status of climate-change litigation in the federal appellate courts; the Ninth Circuit recently affirmed dismissal of the Kivalina suit (in an opinion by Judge Sidney Thomas, of all people), and the Fifth Circuit is considering a similar suit seeking to hold liable carbon-based energy producers for Hurricane Katrina.

At this point, it is uncertain what the Fifth Circuit will decide. If the panel bucks conventional wisdom and allows the case to go forward, it will be interesting to see if it tries to set any limiting principles so that similar claims cannot arise after every severe storm or change in weather patterns. If the court tries to do so, it will undoubtedly realize, as other courts have, that moving the deck chairs in this litigation do not change the legal outcome.

To the extent the Fifth Circuit looks to the Supreme Court for guidance, the Supreme Court has already made its position clear: America's energy policy is properly decided in Congress and the executive branch, and that there is no "room for a parallel track" of litigation for setting [greenhouse-gas] emissions case-by-case in courtrooms across America.

A Law Week Colorado story (via Amazon Post), looks at the role of Stratus Consulting in the gigantic Lago Agrio verdict, and Chevron's suit against the firm. Greenwire reports that Stratus is currently receiving federal taxpayer money for consulting work.

Darren McKinney begs to differ on the recent love shown for Bobby Jindal as a vice presidential nominee. Earlier. More on legacy lawsuits: Heritage via Hayride; Lafayette Daily Advertiser; POL was ahead of the issue, discussing the problem in March 2012 and May 2011. LNL reports a reform bill compromise has been reached in principle.

Chevron tells its side of the story in a seven-part video series on the Lago Agrio litigation in Ecuador.

PLF wins the important Supreme Court case of Sackett v. EPA, reaffirming the right of landowners to challenge agency compliance orders under the Administrative Procedure Act. Justice Alito's concurrence goes even farther, citing CEI's amicus brief, the only amicus brief cited in the case. Congratulations to all. More at ABAJ.

We wrote in May about what have since become called "legacy lawsuits":

A 2006 Louisiana law allows conventional tort litigation by landlords who leased to oil companies to supplant state regulatory efforts at remediation and cleanup. Oil companies express concern that they're now drawn into expensive litigation that delays the cleanup process for several years, but one suspects that they're even more concerned that entrepreneurial trial lawyers have figured out that impoverished remote-county juries and judges plus deep-pocketed defendants presents desirable rent-seeking. One verdict awarded $54 million for environmental damage to a piece of land that was never worth more than $108,000. Business is asking the legislature for relief, and there has since been a feeding frenzy of suits over decades-old leases; meanwhile, Louisiana's attempt to sue itself into prosperity has hurt job growth.

Nothing's gotten any better in the last year, says a recent LSU study on legacy lawsuits, which calculates the loss to the Louisiana economy at "1,200 new wells, translating into a total statewide reduction of about $6.7 billion dollars in lost Louisiana drilling investment. The estimate is likely conservative since it excludes the impacts these reduced drilling activities would have on oil and natural gas production, and the mineral revenues generated by this foregone production," as well as 30,000 jobs. But trial lawyers are making money, so who cares about the other 99%, or the skyrocketing price of gas? [ATRA; Fox News]

A year ago, a Madison County judge in the meritless atrazine litigation unsealed PR documents that showed, heaven forfend, that the defendants were exercising their First Amendment rights to defend themselves against false accusations. Now there's evidence that, surprise, surprise, the plaintiffs are doing the same thing they pearl-clutched about when the defendants did it, though one doubts the judge will let defendants conduct discovery on the Center for Media and Democracy or who leaked documents to them. But as Ed Murnane and Tiger Joyce ask, "why would Madison County judges ignore overwhelming science and favor the plaintiffs when so many of the county's tax-paying residents earn their livelihoods in conventional agriculture?"