September 18, 2007

A Misplaced Focus

Justin Katz

The case of the contaminated soil a Tiverton neighborhood just down the hill from me is beginning to exemplify everything that is wrong with our current mix of government ubiquity and the cultural knee-jerk reaction to litigate:

Fiscal woes notwithstanding, the DEM went into the red in the fiscal year that ended in June to pay a Washington law firm nearly $1.1 million to buttress its own five lawyers as it tries to force the Texas-based utility Southern Union to clean up the soil.

Five years after the toxic wastes were discovered and two years after the DEM first called on Southern Union for remediation plans, there is no end in sight to a highly contentious legal battle.

Roger Williams University Law Professor Jared Goldstein has suggested that we might as well make those expenses permanent and "hire eight or nine staff lawyers at $100,000 a year" plus "supporting staff." DEM Director Michael Sullivan complains that the ability of the energy company to simply outspend Rhode Island in the courthouse is "fundamentally unfair to the citizens of the entire state."

I'd suggest that what's fundamentally unfair is a system that gets mired in expensive legally wrangling with the goal of assigning blame and finding somebody else to pay for the horrible remnants of our ignorant past. The article contains hints that there could be another approach:

Southern Union initially cooperated with the DEM in conducting two site investigations of the contaminated area.

But since residents filed a civil suit seeking unspecified damages in 2005, Southern Union has insisted it is not responsible and claims the DEM’s own regulations do not require Southern Union to submit remediation plans.

The parallels between homeowners who unknowingly bought contaminated land and a distant company that unknowingly bought another business with a contaminated history suggest, to me, that a culture that encouraged shared efforts toward remediation of mutual misfortune would be to everybody's benefit. The search for big pockets seems to come around somehow to costing everybody else money.

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I think DEM has exceeded its charge on this one. And don’t forget that the dumping that happened 70ish years ago was legal at the time.

Like the lead paint fiasco, we could easily go back in time and contribute damages. After all, some people are still pushing reparations.

Posted by: WJF at September 18, 2007 11:25 AM

Now I see, "personal responsibility" is fine so long as the person is not a corporation. When business has to pay "shared efforts" is the way to go.

Moreover, your equating homeowners with Southern Union is preposterous. When Southern Union acquired Fall River Gas and New England Gas it bought their assets and their liabilities. It stains credulity to believe that Southern Union was not aware of at least the possiblity of CERCLA liability when it bought legacy utilities like Fall River, as the burning of coal to create natural gas was a common practice. The risk of such liaiblity was surely factored into the purchase price.

Posted by: Trot at September 18, 2007 6:06 PM

To think that Southern Union's predecessor was the sole contributor to this problem is not realistic. Look at the neighbors. Why should SU pay for someone else’s contaminants?

Besides, that was the 1930's when all this was legal. The homes were not built until the 70’s. The question then is – did the developer (Simpson) know what they were building on?

we have more details on our blog -

Posted by: WJF at September 18, 2007 10:58 PM


Re. the neighbors, if there is evidence that neighboring businesses may have contributed to the contamination, then DEM and Southern Union should certainly pursue those entities. However, you have not and your blog does not cite to any evidence in support of that claim.

Re the developer, that is only relevant as to the civil lawsuit and again does not absolve Southern Union of responsibility. It merely suggests another possible defendant.

Finally as to the claim that all this was "legal" back in the 1930's. Why don't you point me to the statute that privileged Southern Union to dump toxins in the land? The absence of a statute addressing the legality of conduct one way or another, does not mean the conduct will not later be determined to be tortious.

On a related point, are you opposed to the Nuremberg prosecutions?

Posted by: Trot at September 19, 2007 8:11 AM

Comparing a 100 yr old industrial dump to Nuremberg? Interesting...

Posted by: WJF at September 19, 2007 8:36 AM

I did not equate the two. Rather I asked about your feelings on the subject.

I did so because at Nuremberg the Nazis were prosecuted for war crimes that were not "crimes" when committed. This led a number of legal commentators (including two sitting Supreme Court justices) to question the validity of the prosecutions. There are substantial due process concerns implicated by criminal prosecutions under ex post facto laws, especially when the punishment is death.

Civil liablitity for conduct on which the law was formally silent is an entirely diferent matter.

Hence my question. If you think Southern Union is getting a raw deal, you must be outraged by Nuremberg.

Posted by: Trot at September 19, 2007 11:42 AM

That's a nifty debater's trick, Trot (or should it be "Tort"?), and it's also an example of the sickness that can fall on a society that looks to lawyers and the law as moral guides.

Circumstances (especially knowledge) can change to make it advisable to treat licit waste disposal illicit in a way that circumstances cannot change to alter the culpability for genocide.

Some of my near-neighbors were terribly unfortunate in their housing purchases. The way in which they and the state have sought some deep pockets to take away the sting has ensured that the rest of us get a raw deal instead, prolonged the remediation, and perhaps ensured that they will never procure a satisfactory outcome.

Posted by: Justin Katz at September 19, 2007 7:03 PM

It is certainly true that a major purchase of industrial assets passes liabilities as well. The questions of what was strictly legal at the time, though, reveal the problem of relying on government in the first place.

When 'progress' was perceived as development without too much concern for its wastes, government ignored the problem until the Cuyahoga River burned. Not that 'progress' is all but defined as no development, government interrupts legitimate activity on the least pretext

The people in Tiverton are caught in the middle. Modest contamination with no immediate health threat created in the old progressive style. It's not enough of a problem to bring in the EPA moonsuits quickly but fear of chemistry and attendant government overregulation epitomizing the new progress clouds the property value and makes the properties virtually unsaleable -- as noone can say what it will take to satisfy government, or the residents for that matter (short of blaming the company with the deepest pockets for all the contamination which does likely have multiple sources and engaging in a massively expensive and unnecessary remediation.)

If this were an industrial site, the soils would be largely left in place and surface cover and activities conformed to those exigencies. Southern Union, to their credit, is attempting to construct a site specific approach that provides remediation of any wastes actually associated with the old Fall River Gas, and splits the difference between the nuclear option (used during the PUC oversight of sale of Southern Union's RI assets to National Grid,i.e. tearing all the houses down, removing some soils and capping the rest) and the industrial brownfields approach. DEM and the residents are opposed to this approach, which happens to be quite similar to the approach EPA would use (this is not to say it would be substantively identical but the approach of assessing risk and screening alternatives based on site specific critieria is what DEM and Southern Union are arguing about. You might assume from reading that sentence that this is what DEM wants, no, this is what DEM is resisting.) That is why nothing has moved. The lawsuit by the residents is a side show.

The greatest irony here is DEM complaining about the other side having lawyers. Did these same waste geeks who put notches in their rifle butts based on how many millions of dollars they make people spend lie awake nights wondering if it was fair to throw a farmer in jail for recycling clam shells when he couldn't afford the lawyers needed to prove him innocent?


Posted by: Brian at September 20, 2007 8:32 AM


Give me a break, they didn't seek out a deep pocket. This isn't the Station plaintiffs suing Budweiser. This is suing the successor of the company that engaged in the very conduct for which they seek compensation.

Southern Union was not under any obligation to assume the liabilities of Fall River Gas when they bought it. They could have easily strucutred the transcation to leave those liabilities with Fall River Gas, as National Grid did when it bought New England Gas.

If you think Southern Union should get some corporate welfare, and that my tax dollars should pay for cleaning up a mess their predecssor created and profited from, fair enough (though obvisiously I disagree). But don't portray this as a case of pocket hunting run amok.

Re: your quip about the law, lawyers morality. The law is an instrument through which power is exercised and little more. A society may and should seek to imbue some parts of the law with its moral judgment (e.g. the criminal code, family law). However, I would not look for moral guidance in the laws that govern secured transactions, commerical finance, antitrust or environmental liability. Such laws should be, and for the most part are, routed in economic and scientific considerations.

Finally, if you are on a moral quest you may want to consider the seminary and give politics a break.

"He who seeks the salvation of the soul of his own and of others, should not seek it along the avenue of politics, for the quite different tasks of politics can only be solved by violence." Max Weber

WFJ: still waiting for that evidence of the neighbors contribution to the contamination.

Posted by: Trot at September 20, 2007 8:41 AM
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