Exploring Judicial Remedies for Environmental Harm

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It was a busy summer for the PEL program with many visitors to host and trainings to facilitate. One enjoyable highlight was our seminar on Judicial Remedies for Environmental Harm. For two weeks in August, PEL hosted a delegation of environmental judges from China’s Supreme People’s Court and other People’s High Courts across China. This seminar was designed as an experiential-based, hands-on training program in environmental law focused on judicial crafting of remedies for environmental harms including clean-up, restoration, and compensation mechanisms. The training took place primarily in Montpelier, Vermont, with a short component in Boston, Massachusetts.  Targeting senior SPC and provincial-level judges who are responsible for setting court policies, the course balanced emphasis between the substantive details of U.S. procedures and the key principles that could be adopted to shape the Chinese context.

tittlerOn their first Monday the delegation visited with the Solicitor’s Office of the Department of the Interior (DOI), the National Park Service (NPS) and the Environmental Protection Agency (EPA) all at EPA’s headquarters in downtown Boston. In the morning, DOI and NPS staff presented overviews of the type of work they do related to environmental conservation and clean-up and how the agencies work together. Throughout the morning, the judges were interested in hearing more about the public participation in the EIA process; when reporting is made public and when the public gets involved or chooses the sue. The DOI and NPS emphasized heavy public process as a means for avoiding litigation and the judges nodded in understanding. There were also several questions about which types of courts hear which types of cases, and the distinction between federal courts and administrative tribunals was useful. In the afternoon, EPA staff presented on the CERCLA process and then dove into the litigation details of a particular case against Black and Decker for the Centredale Manor Superfund Site. The judges were very impressed with the strength of the CERCLA statute and its retroactive clause as a result of a judicial decision. They asked several questions clarifying why certain parties were sued even though they weren’t at fault. The judges were also curious to hear about how CERCLA settlements are reviewed by the courts, to what standard, and what options there are to challenge this. There were several questions about immediate soil clean-up, how much was removed, where it was brought, and how it was dealt with. In the end the head of the delegation said thank you to the federal agency staff and explained that China has similar soil contamination cases but that their process is not nearly as detailed so they appreciated the training day and know it will influence their procedures back home.

The next morning the delegation visited the Massachusetts Court of Appeals and spoke with both Justicemass Milkey and Chief Justice Green. The Massachusetts Justices provided a broad overview of the U.S. court structure including trial, appellate, and high courts but emphasized that most environmental controls occur through administrative tribunals. The judges asked whether Massachusetts had an equivalent case division that approved whether cases would be heard. Justice Green highlighted that, as an appeals court, they had no discretion to refuse a case. The judges also wanted to understand how cases found themselves in a state versus a federal court.

The group discussed the numbers of cases carried by each level of court and determined that Chinese court systems face far higher numbers annually. For example, while the U.S. Supreme Court only hears about 75 cases a year with 9 justices, the SPC hears 20,000 cases a year with 300 judges. Even though China is unique from the U.S. because it has its own environmental division, there are so few environmental cases that these judges often hear other types of cases as well. Judge Green highlighted that U.S. courts haven’t developed expertise in the environment because of agency deference. At the conclusion of the meeting, the Justices gave the delegation a tour of the appeals courtroom.

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In the afternoon the delegation was greeted at Boston College by Professors Zyg Plater and Susan Simone Kang. Professor Plater provided two great case studies in U.S. environmental law including his own experience protecting the snail darter in the U.S. Supreme Court under the Endangered Species Act. Dr. Simone Kang provided an excellent overview of the court systems, the judicial powers, where the powers are outlined in our constitution, statute, and common law, and why judges are viewed so highly as a result. An early evening tour around Harvard University concluded with a group dinner at a Vietnamese restaurant to celebrate one of the judges’ birthday. After dinner the delegation taxied to Vermont to rest in preparation for lessons in the morning.

Their first official day in Montpelier began at the Vermont Statehouse where Vermont Law School professors Jack Tuholske and John Echeverria solidified what was previewed to the delegation in earlier days. While Tuholske provided more detail in the U.S. court structure and function, Echeverria explained the evolution of environmental law in the U.S. The judges asked Professor Tuholske to explain more about the threshold for criminal penalties for environmental pollution, and role of judge in determining criminal liability.  Over lunch VLS staff provided the delegation with a guided tour of the statehouse.

During the afternoon discussion session, the professors invited the judges through questions to explore the similarities and differences in the U.S. and Chinese systems based on what they had heard. The discgroup spent a lot of the discussion understanding the differences between standing and cause of action in U.S. suits. The judges wanted to know what burden of proof was required to get standing and were surprised that a citizen didn’t need science to prove injury in fact. Professor Tuholske explained that the standing component of citizen suits didn’t require such evidence but that the actual cause of action would require scientific backing. The professors also highlighted that unlike in China, citizen suits in the U.S. only result in an injunction or penalties, there are no funds raised for damage compensation as in NRD or tort cases. To clarify with an example, Professor Tuholske explained that three suits were brought forward after the BP oil spill; a citizen suit for penalties against BP, an NRD case to pay for restoration, and tort cases from local businesses and individuals directly impacted by the oil spill.

On Thursday the delegation visited Vermont Law School (VLS) in South Royalton, VT for a focused study and case example on the CERCLA law, a tour of campus, and a welcome luncheon provided by our Dean Thomas McHenry.

In the morning, VLS Professor Mark Latham provided in depth details to the purpose and procedures laughfor CERCLA. After this, Professor Tuholske spoke more specifically about the Elizabeth Mine site that the group would visit in the afternoon. He gave a history of the site, its purpose, and reasoning for the need for CERCLA to remediate. The delegation was then given some brief time to tour the campus and explore South Royalton, VT. Over the luncheon, VLS professors Latham, Tuholske, and Echeverria joined Dean McHenry in welcoming the guests. We also invited Judge Merideth Wright who was Vermont’s first environmental court judge and two VLS students. The group delved into the content of the morning’s lecture and asked more questions about rules of evidence.

After lunch, Bob Walker spoke with the delegation about his role and the role of the citizen advisory board in the Elizabeth Mine clean-up process. He brought along maps and example reports that the citizens had developed, which catalogued the data they had collected on biotic and abiotic indicators for pollution, and which had been used to garner media interest and, eventually, government support. It appeared beneficial to provide the delegation with a local citizen perspective from a community advocate because it highlighted the importance of local support in initiating environmental response plans.

copperFrom Mr. Walker’s talk, the group loaded into a van to visit the Elizabeth Mine site in South Strafford, VT. Ed Hathaway from the EPA met the group on site and started with an introduction to its mining history. He passed around copper ore samples which the delegation found interesting to hold and noted its immense weight. Mr. Hathaway explained the weight came from its iron content, and that only 1-3% of the rock actually contained copper. He then pointed behind him to the valley that had been filled in from the waste rock of the mining operations, and explained some of the clean-up process. The delegation was interested in holding the example sheeting materials used by EPA to cover the contaminated soil. They asked about care, life expectancy, and allowed uses above such type of material. They were also interested in the division of labor in clean-up and the role of land-owners, surprised to know the property remained privately owned. After an initial briefing, Mr. Hathaway took the group down to the water treatment facility and explained how a liming agent was agitated with water run-off from the site to allow the hard metals to settle out. From there we drove to the top of the hill to see where the EPA was actively blasting in an old crevice that had been filled with polluted mine drainage. The day closed with some judges trying a Vermont Maple Creemee and all enjoying lobster at a picnic in Siu Tip’s front yard.

The delegation headed over to Montpelier City Hall for lecture Friday morning. Professor Tuholske began by providing an overview of the rules of procedure in evaluating expert testimony. The goal for the day was to highlight what judges can do and must do when they face competing expert testimony and must evaluate the science as to whether it’s admissible in court. He highlighted that trial courts could admit or deny testimony and emphasized that both lawyers and judges can cross-examine or request more information from expert witnesses.

Following this, Mark Barash began his discussion session by asking the judges to read two competing export reports on the probable cause of the death of mussels in a certain river body. He provided context for how the case came about and the way that U.S. courts receive and review such testimony and then spoke about his thoughts on the strengths and weaknesses of the U.S. system. After this, he invited the judges to talk about the Chinese system for expert testimony and how this kind of sample case might be handled in China.

In the afternoon the delegation visited with staff from a local environmental NGO, Conservation Law clfFoundation which has a strong legal history in bringing forward environmental cases in court. Chris Kilian (Vice President of Strategic Litigation) and Zak Griefen (Senior Enforcement Litigator), both graduates from Vermont Law School, provided several examples of cases that CLF had worked on including a suit against Shell Oil company because many of its coastal refineries hadn’t been built to standard when considering rising sea levels from climate change and a suit against an automobile recycling plant for failing to follow stormwater discharge permit limits. The judges asked many questions and were very engaged at the site visit. They wanted to know the numbers and types of cases the NGO brought forth, and particularly how the NGO was funded. This prompted Professor Tuholske to develop a new PowerPoint on attorney fees which he presented the following day.

On Saturday, the delegation spent the morning back at City Hall watching lectures from Professors Tuholske and Barash. First, Professor Tuholske provided a primer on judicial remedy design, highlighting what powers we grant U.S. judges, and the principles and tools behind the design. From this lecture, there was a lot of interest in the concept of Supplemental Environmental Projects. Tuholske explained that many environmental cases settle because settlement is an opportunity to design SEPs. Otherwise, civil penalties delivered by the court only go to the government coffers and don’t actually contribute to environmental clean-up. He explained that SEPs are one way for defendants to lower the total penalties bill which is incentive for them to participate in the negotiations. Another judge asked for clarification in the difference between a natural resource damages case and an SEP. Barash explained that there are particular laws that allow for NRD but SEPs can be used to fill the gaps in the law. Furthermore, SEPs aren’t always specifically used for restoration and are, often times, tied more to pollution prevention. Tuholske chimed in with an example from his own experience where the polluter broke the law by violating its effluent permit, but that there wasn’t, yet, any damage to the environment. The parties settled and agreed to an SEP in which the polluting company had to install water quality monitoring equipment in the river and publicize results over the internet so that the local farmers would be able to know whether the water had been impacted. In this case, no restoration was involved because no damage had been documented.

During the presentation on attorney fees, Professor Tuholske emphasized this as a critical component in judge decision-making because it impacts access to justice for many communities. He reviewed which statutes allow for attorney fee recovery and the judges were surprised to hear about the degree of detail needed to be submitted to a judge in order to apply for such recovery.

After these presentations Professor Barash provided a case example of loon and lobster recovery in New England after an oil spill in which the judges found interesting to hear about all the ways that restoration can happen and all the pieces that are considered for damages. In the afternoon the delegation traveled to Burlington, VT to see the waterfront, enjoy the pedestrian mall, and dine.

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After a short day off to shop and/or hike, Monday morning began back at the Montpelier City Hall. Mr. Bob Unsworth from Industrial Economics, Inc. gave a primer on environmental economics. He explained the basic theories behind it, where an environmental externality comes from and how this is integrated into NRD. Importantly, Mr. Unsworth clarified that injury, harm and damages are different concepts in the U.S. legal system. Injury is the adverse environmental change (i.e. dead birds, contamination of fish, etc.) and we have scientists to describe this piece. Harm is the outcome of that change, it’s the lost opportunity to see the living birds, or go fishing. Damages are the monetary value of the harm.

Given the challenges in measuring value, U.S. court systems have shifted from determining the value of the services lost to the costs of restoring the service as the damage that is due. Mr. Unsworth reiterated, “restoration costs are not values so that’s important.” A public may value something far greater than the cost it takes to restore it. The judges nodded in agreement to this. Courts have found ways to make sure costs are not in excess of its value if the public values it less than the costs.

From this presentation the judges asked about setting the baseline for NRD cases and Mr. Unsworth talked about historic and reference data. He emphasized that the validity of baseline data often becomes the biggest area of argument in cases and that the judge ultimately must decide.

Mr. Unsworth then proceeded to describe the first environmental damage case brought to the international court of justice. In Costa Rica v. Nicaragua, Nicaraguans had caused some damage to natural resources along the border in an effort to deceive Costa Rican officials of the true border location. In presenting the case in court, Mr. Unsworth revealed that both sides valued the damages significantly differently and then went through how each side calculated their damages to show how it was possible they came to such different conclusions. The judges seemed amused at how biased both the Costa Rican and Nicaraguan assessment agencies could be.

After the case example, Mr. Barash and Mr. Unsworth invited questions and discussed conflicts of testimony a little further. This quickly became a very engaging and heated discussion. At first, the Chinese judges explained how NRD assessments are delivered by a neutral, agreed upon third party in China. The basic assumption is that if everyone agrees with a specific assessment agency, then what the agency determines for damages must be considered neutral by the judge. The judges said they have faith in the assessment agency because it’s required by the law that the agency has to make a neutral assessment. While VLS staff suggested that “neutral” was difficult to achieve the judges said if there are extreme cases with significant disagreement within the assessment agency, the courts can ask them to do it again but there is a general assumption that if the agency is picked randomly, then the outcome will be fair.

env courtOn Tuesday the delegation traveled back to Burlington, VT to meet with the justices of the Environmental Division of the Vermont Superior Court. Judge Thomas Durkin and Judge Thomas Walsh made a presentation to the delegation introducing the history of the court, the court’s jurisdiction, applicable court rules, De Novo Review, On-the-Record Review, and the Disposition Guidelines. The judges also gave the delegation a composition of U.S. Environmental Laws as a gift and for future reference for the delegation.

From Judge Durkin’s presentation, the delegation learned that the court was formed around 1989 with just one judge and limited jurisdiction – specifically to address challenges of alleged violations to state environmental regulations. Over time the court’s jurisdiction expanded to include appeals of municipal zoning/subdivision decisions and municipal enforcement, permit, Act 250 decisions, and ANR ticketing. The delegation also got to know the rules governing environmental court procedures including coordination of proceedings, discovery, pretrial conference and order, and evidence. A very brief comparison of the similarities and differences of the U.S. and China practices was convened during the questions discussion period.

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After returning to Montpelier, the certificates of completion of studies were awarded to the delegation through a formal ceremony.

Wednesday morning started with an overview to judicial remedies provided by David Mears. After this presentation, Mr. Mears joined VLS professor Heaps, and Judge Hogan on a panel of experts to present case examples that highlighted remedy design.

During Judge Hogan’s report, the judges were interested in hearing more about the habitat equivalency assessment. He explained there was no dispute over the way the formula was applied but the dispute was that this was not an appropriate scientifically acceptable process for the way damages would be counted. The judges also asked what standard Judge Hogan used to approve or deny the settlement agreement. He emphasized there was no hard and fast rule.

During the question and answer session the judges asked why only the attorney general could file law giftssuits. Mr. Mears explained this is typical for most U.S. states that only a few allow agencies to hire external lawyers. They also asked what role the AG plays in criminal suits, and how frequently people face criminal punishment. Near the end of the panel discussion, one judge asked for clarification about when a judge would apply civil penalties versus remediation orders, versus granting NRD claims. Professor Echeverria who was leading the panel discussion explained that this is often up to the plaintiff and what suit they choose to bring to court. In the afternoon, Professor Mears provided an overview of the Honeywell case of pollution on Lake Onondaga and the judges reviewed the mock-case exercise in preparation for the evening’s homework.

On the final training day, the group entered the Montpelier City Council chambers to present their consent decrees on the mock case. The delegation had been divided into three separate groups and their mayordecisions highlighted a few key differences and disagreements. The first was in regards to whether the court should assess penalties on the rail road company that spilled oil in a local waterway. One group reasoned that because the speeding of the train lead to the incident, then there should be penalties assessed as punishment. A second group disagreed, arguing that while the speeding had been intentional, the resulting pollution was an accident so no penalties should be delivered. Judge Hogan responded highlighting the U.S. concept of strict liability, i.e. that intention doesn’t matter you are still held liable if you are operating something inherently hazardous. This creates an expectation for businesses and a predictable course of punishment which encourages cautionary operations.

The morning activity fostered great dialogue because of the diversity of rulings presented by the three judge groups. In the afternoon, the delegation visited staff attorneys in the Vermont Attorney General’s (AG) Office.

During the visit of the AG’s Office, Josh Diamond, the Deputy Attorney General of Vermont, Rob McDougall, the Chief of Environmental Protection Division (EPD) of the AG’s office, together with several other Assistant Attorney Generals of the Environmental Protection Division met with the delegation and introduced the roles and functions of prosecutors in U.S. environmental protection cases.

The dialogue started with the Deputy Attorney General, Mr. Diamond’s introduction of the institutional structure of the AG’s office, which is composed of 6 divisions, including Criminal, Civil, General Counsel and Administrative law, Human Services, Public Protection, and Environmental Protection. The Attorney General is elected every two years at the same time and manner as other Vermont statewide elected officials. The AG has the same authority throughout the state as state’s attorney, and represents the state in all civil and criminal matters. AG also represents state government and the interests of the people in environmental protection litigations.

Later during the discussion session, the judges asked more questions about the organizational structureago of the AG office, the statistics of cases prosecuted every year, the environmental criminal cases proportion, the working mechanisms of the AGO, different functions of AGO and citizen suits brought by other civil societies, and cases involving natural resources damages claims.

The conversation was very productive and helped the judges learn about the U.S. environmental protection system from the perspective of public prosecutors. Lessons from this conversation will hopefully influence the judges’ vision and thinking on China’s EPIL cases brought by procuratorates, since this is a new phenomenon and will require court guidance.

The day closed with a final dinner at a restaurant serving local Vermont fare. Everyone cheered their hard work, expressed their enjoyment with the course and with the Vermont setting, and shared fond farewells.

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