CAT's PAW THEORY
United States Supreme Court Decides “Cat’s Paw” Theory of Liability in Staub v. Proctor Hospital By Gibbons P.C. on March 3, 2011 Posted in Discrimination It is now clear that an employer may be held liable for unlawful discrimination when it unwittingly terminates an employee based on a supervisor’s recommendation or false allegations motivated by discriminatory animus. The United States Supreme Court, in Staub v. Proctor Hospital, No. 09-400, 562 U.S. _ (March 1, 2011), has just resolved a split in the lower courts over the reach of the so-called "cat’s paw" theory of liability, which gets its name from the 17th century fable by French poet Jean de La Fontaine. In the fable, a monkey convinces a cat to remove chestnuts from a fire. The cat complies, pulling out the chestnuts one at a time, burning its paw in the process, as the monkey feasts on the chestnuts. In the employment context, the "cat’s paw" refers to a situation in which a biased subordinate employee, who lacks decision-making authority, uses the final decisionmaker as a dupe to trigger a discriminatory employment action. In Staub, the Court held that if the decision to terminate is based in whole or in part on the malicious recommendation or false allegations from a supervisor who has discriminatory motives, the employer can be held liable under federal statutes that prohibit employment discrimination.
Although the Supreme Court’s decision arose out of an employee’s claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court’s holding will likely be applied with equal force to Title VII discrimination cases, given Title VII’s similar statutory language, which the Court itself noted. In light of this decision, employers should ensure that ultimate decisionmakers do not simply rubberstamp the recommendations of immediate supervisors, but instead attempt to verify that a legitimate reason for discipline or termination exists and that immediate managers are not pursuing discipline because of bias. To the extent possible, employers should also investigate an employee’s claim of discrimination prior to implementing a termination decision.
Background
In Staub, an Army Reservist sued his employer for military discrimination under USERRA after he was terminated by the Vice President of Human Resources (the decisionmaker) for allegedly violating a disciplinary warning. Staub did not contend that the decisionmaker was motivated by hostility towards his military obligations. Rather, he claimed that his managers were motivated by such hostility, and that the decisionmaker was influenced by their actions. A jury found the employer liable and awarded Staub damages. The Seventh Circuit reversed, concluding that the employer was entitled to judgment as a matter of law because the decisionmaker had relied on more than the allegedly biased managers’ advice in making her decision.
In so holding, the Seventh Circuit joined the Fourth Circuit in taking a narrow approach to the cat’s paw theory, holding that if the final decisionmaker’s motive is pure, an employer cannot be held liable for a subordinate’s alleged bias. Other federal circuit courts had taken a more lenient view, upholding cat’s paw claims where a terminated employee could prove that a biased worker "influenced" or "played a role" in the final decision, or that the biased supervisor "caused" the ultimate decisionmaker’s action.
The Supreme Court’s Decision
In an 8-0 decision, the Supreme Court reversed the Seventh Circuit and resolved the circuit split. In the majority opinion, by Justice Scalia, the Court held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." In the instant case, both of plaintiff’s supervisors acted within the scope of their employment when they took actions that allegedly caused the decisionmaker to fire Staub, and there was evidence that their actions were motivated by hostility towards Staub’s military obligations and were causal factors underlying the decisionmaker’s decision. There was also evidence that Staub’s supervisors had the specific intent to cause Staub’s termination.
The Court arrived at its holding through an analysis of general tort and agency law. The Court explained that the agent had the scienter required for USERRA liability so long as the earlier agent intended, for discriminatory reasons, for the adverse action to occur. Moreover, the decisionmaker’s exercise of judgment does not prevent the earlier agent’s action from being a proximate cause of the harm. Nor can the ultimate decisionmaker’s judgment be deemed a "superseding cause" of the harm. The Court reasoned that to conclude otherwise would have the "improbable consequence" that if an employer isolated a personnel official and vested the decision to take adverse employment action in that official upon review of the employee’s personnel file, then the employer would be "effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action." According to the Court, "[t]hat seems to us an implausible meaning of the text, and one that is not compelled by its words."
The Court also rejected the employer’s argument that a decisionmaker’s independent investigation of the employee’s allegations of discriminatory animus should provide an absolute affirmative defense, stating: "Nor do we think the independent investigation somehow relieves the employer of ‘fault.’ The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." However, the Court explained that if the employer’s investigation resulted in an adverse action for reasons unrelated to the supervisor’s original biased action, then the employer would not be liable.
Justice Alito filed a separate concurring opinion, with which Justice Thomas joined, in which he opined that the same decision could have been reached based on the statutory text rather than on principles of agency and tort law "that do not speak directly to the question presented here." The majority rejected Justice Alito’s contention that they had strayed from the statutory text.
Although the Supreme Court’s decision arose out of an employee’s claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Court’s holding will likely be applied with equal force to Title VII discrimination cases, given Title VII’s similar statutory language, which the Court itself noted. In light of this decision, employers should ensure that ultimate decisionmakers do not simply rubberstamp the recommendations of immediate supervisors, but instead attempt to verify that a legitimate reason for discipline or termination exists and that immediate managers are not pursuing discipline because of bias. To the extent possible, employers should also investigate an employee’s claim of discrimination prior to implementing a termination decision.
Background
In Staub, an Army Reservist sued his employer for military discrimination under USERRA after he was terminated by the Vice President of Human Resources (the decisionmaker) for allegedly violating a disciplinary warning. Staub did not contend that the decisionmaker was motivated by hostility towards his military obligations. Rather, he claimed that his managers were motivated by such hostility, and that the decisionmaker was influenced by their actions. A jury found the employer liable and awarded Staub damages. The Seventh Circuit reversed, concluding that the employer was entitled to judgment as a matter of law because the decisionmaker had relied on more than the allegedly biased managers’ advice in making her decision.
In so holding, the Seventh Circuit joined the Fourth Circuit in taking a narrow approach to the cat’s paw theory, holding that if the final decisionmaker’s motive is pure, an employer cannot be held liable for a subordinate’s alleged bias. Other federal circuit courts had taken a more lenient view, upholding cat’s paw claims where a terminated employee could prove that a biased worker "influenced" or "played a role" in the final decision, or that the biased supervisor "caused" the ultimate decisionmaker’s action.
The Supreme Court’s Decision
In an 8-0 decision, the Supreme Court reversed the Seventh Circuit and resolved the circuit split. In the majority opinion, by Justice Scalia, the Court held that "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA." In the instant case, both of plaintiff’s supervisors acted within the scope of their employment when they took actions that allegedly caused the decisionmaker to fire Staub, and there was evidence that their actions were motivated by hostility towards Staub’s military obligations and were causal factors underlying the decisionmaker’s decision. There was also evidence that Staub’s supervisors had the specific intent to cause Staub’s termination.
The Court arrived at its holding through an analysis of general tort and agency law. The Court explained that the agent had the scienter required for USERRA liability so long as the earlier agent intended, for discriminatory reasons, for the adverse action to occur. Moreover, the decisionmaker’s exercise of judgment does not prevent the earlier agent’s action from being a proximate cause of the harm. Nor can the ultimate decisionmaker’s judgment be deemed a "superseding cause" of the harm. The Court reasoned that to conclude otherwise would have the "improbable consequence" that if an employer isolated a personnel official and vested the decision to take adverse employment action in that official upon review of the employee’s personnel file, then the employer would be "effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action." According to the Court, "[t]hat seems to us an implausible meaning of the text, and one that is not compelled by its words."
The Court also rejected the employer’s argument that a decisionmaker’s independent investigation of the employee’s allegations of discriminatory animus should provide an absolute affirmative defense, stating: "Nor do we think the independent investigation somehow relieves the employer of ‘fault.’ The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision." However, the Court explained that if the employer’s investigation resulted in an adverse action for reasons unrelated to the supervisor’s original biased action, then the employer would not be liable.
Justice Alito filed a separate concurring opinion, with which Justice Thomas joined, in which he opined that the same decision could have been reached based on the statutory text rather than on principles of agency and tort law "that do not speak directly to the question presented here." The majority rejected Justice Alito’s contention that they had strayed from the statutory text.
See: Morris v EPA - Higginbotham & Spears
D.C. Circuit revives former EPA official's race bias lawsuit
June 15, 2016 Robert Iafolla
(Reuters) - A federal appeals court on Tuesday revived a lawsuit from a former Environmental Protection Agency official, who had claimed that her seven-day suspension without pay was motivated by racial discrimination.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that Susan Morris, the former assistant director of affirmative employment at the EPA, offered enough evidence to bring her racial discrimination claim to trial.
The dispute goes back to 2007, when Morris, who is white, disagreed with a coworker over an internal advisory group. The coworker complained in a memo about Morris' conduct to Morris' supervisor, Karen Higginbotham, who is black.
Higginbotham forbade Morris from responding to her coworker's complaints. In 2008, Morris sent Higginbotham a letter accusing EPA employees of interfering with the agency's equal employment policies. Morris also said her reputation had been attacked, citing her coworker's memo.
Higginbotham told Morris that the letter violated her order to not respond to the coworker's memo, then proposed to a top aide that Morris should be suspended. The aide suspended Morris.
Morris' standing at the EPA continued to deteriorate, culminating in her 2010 termination.
Prior to her removal, Morris filed a complaint with the Merit Systems Protection Board's Office of Special Counsel (OSC), which investigates federal employees' claims about prohibited personnel practices and makes nonbinding recommendations.
Morris told the OSC that her impending termination was reprisal for exposing wrongdoing within the agency. Her allegations involve the EPA's decision not to implement a new civil rights policy, according to a 2011 Federal News Radio report.
The OSC in 2011 recommended the EPA reinstate Morris after concluding that the agency may have violated the Whistleblower Protection Act by firing her, according to public records. But the EPA did not follow any of the OSC's recommendations, OSC spokesman Nick Schwellenbach told Reuters on Monday.
EPA spokesman Dan Abrams declined to comment because the Morris case is ongoing.
Morris also challenged her termination to the MSPB in 2010, seeking a ruling from the quasi-judicial agency. Due to procedural issues related to the OSC investigation, her MSPB case was dismissed and then automatically refilled in 2011. That case is still pending.
Morris filed a lawsuit in the U.S. District Court for the District of Columbia in 2011, alleging that her 2008 suspension and 2010 termination violated Title VII of the Civil Rights Act of 1964. Both actions were motivated by her race and her complaints about discrimination, she claimed.
In 2012, U.S. District Judge Rosemary Collyer dismissed Morris' claims related to her termination, finding that she did not exhaust her administrative remedies because the MSPB case was ongoing.
In 2014, Collyer dismissed Morris' claims related to her suspension because she did not show the EPA's explanation was pretext for racial animus, or that the disciplinary action was retaliatory.
The D.C. Circuit reversed Collyer's ruling on the racial motivations for Morris' suspension on Tuesday. In the opinion written by Circuit Judge Thomas Griffith and joined by Circuit Judges Patricia Millett and Stephen Williams, the panel said she offered enough evidence to support a "cat's paw" theory of liability, in which Higginbotham used her top aide as a conduit for her discrimination.
Morris' lawyer, Ellen Renaud of Swick & Shapiro, did not respond to requests for comment.
The case is Morris v. McCarthy, U.S. Court of Appeals for the D.C. Circuit, No. 14-5074.
For the appellant: Ellen Renaud of Swick & Shapiro
For the appellee: Brian Hudak of the U.S. Justice Department
Robert Iafolla
Legal Reporter
Thomson Reuters
Phone: +1 202-354-5802
Mobile: +1 202-264-0705
robert.iafolla@thomsonreuters.com
http://www.reuters.com/legal
Follow me on Twitter: @robertiafolla
(Reuters) - A federal appeals court on Tuesday revived a lawsuit from a former Environmental Protection Agency official, who had claimed that her seven-day suspension without pay was motivated by racial discrimination.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously ruled that Susan Morris, the former assistant director of affirmative employment at the EPA, offered enough evidence to bring her racial discrimination claim to trial.
The dispute goes back to 2007, when Morris, who is white, disagreed with a coworker over an internal advisory group. The coworker complained in a memo about Morris' conduct to Morris' supervisor, Karen Higginbotham, who is black.
Higginbotham forbade Morris from responding to her coworker's complaints. In 2008, Morris sent Higginbotham a letter accusing EPA employees of interfering with the agency's equal employment policies. Morris also said her reputation had been attacked, citing her coworker's memo.
Higginbotham told Morris that the letter violated her order to not respond to the coworker's memo, then proposed to a top aide that Morris should be suspended. The aide suspended Morris.
Morris' standing at the EPA continued to deteriorate, culminating in her 2010 termination.
Prior to her removal, Morris filed a complaint with the Merit Systems Protection Board's Office of Special Counsel (OSC), which investigates federal employees' claims about prohibited personnel practices and makes nonbinding recommendations.
Morris told the OSC that her impending termination was reprisal for exposing wrongdoing within the agency. Her allegations involve the EPA's decision not to implement a new civil rights policy, according to a 2011 Federal News Radio report.
The OSC in 2011 recommended the EPA reinstate Morris after concluding that the agency may have violated the Whistleblower Protection Act by firing her, according to public records. But the EPA did not follow any of the OSC's recommendations, OSC spokesman Nick Schwellenbach told Reuters on Monday.
EPA spokesman Dan Abrams declined to comment because the Morris case is ongoing.
Morris also challenged her termination to the MSPB in 2010, seeking a ruling from the quasi-judicial agency. Due to procedural issues related to the OSC investigation, her MSPB case was dismissed and then automatically refilled in 2011. That case is still pending.
Morris filed a lawsuit in the U.S. District Court for the District of Columbia in 2011, alleging that her 2008 suspension and 2010 termination violated Title VII of the Civil Rights Act of 1964. Both actions were motivated by her race and her complaints about discrimination, she claimed.
In 2012, U.S. District Judge Rosemary Collyer dismissed Morris' claims related to her termination, finding that she did not exhaust her administrative remedies because the MSPB case was ongoing.
In 2014, Collyer dismissed Morris' claims related to her suspension because she did not show the EPA's explanation was pretext for racial animus, or that the disciplinary action was retaliatory.
The D.C. Circuit reversed Collyer's ruling on the racial motivations for Morris' suspension on Tuesday. In the opinion written by Circuit Judge Thomas Griffith and joined by Circuit Judges Patricia Millett and Stephen Williams, the panel said she offered enough evidence to support a "cat's paw" theory of liability, in which Higginbotham used her top aide as a conduit for her discrimination.
Morris' lawyer, Ellen Renaud of Swick & Shapiro, did not respond to requests for comment.
The case is Morris v. McCarthy, U.S. Court of Appeals for the D.C. Circuit, No. 14-5074.
For the appellant: Ellen Renaud of Swick & Shapiro
For the appellee: Brian Hudak of the U.S. Justice Department
Robert Iafolla
Legal Reporter
Thomson Reuters
Phone: +1 202-354-5802
Mobile: +1 202-264-0705
robert.iafolla@thomsonreuters.com
http://www.reuters.com/legal
Follow me on Twitter: @robertiafolla
EPA Conducts Two Secret Meetings A Year To Decide How To Dole Out BILLIONS In Slush Fund Money
Environmental Protection Agency Administrator Gina McCarthy (Credit: Albert H. Teich / Shutterstock.com)
By Ethan Barton 9:26 PM 05/22/2016 This story first appeared in the Daily Caller
Two internal Environmental Protection Agency (EPA) committees secretly control how billions of dollars are spent, a Daily Caller News Foundation investigation has found.
Congress appropriates about $1 billion annually for EPA’s Superfund program, and the agency has accumulated nearly $6.8 billion in more than 1,300 slush fund-like accounts since 1990.
Two committees consisting entirely of EPA officials meet behind closed doors twice annually to decide how the agency spends those funds on highly polluted – and often dangerous – Superfund sites. All reports to and from the groups, as well as the minutes of their meetings and all other details, are kept behind closed doors.
“The National Risk-Based Priority Panel and the Superfund Special Accounts Senior Management Committee engage in pre-decisional deliberations which are internal to the agency and not open to the public,” an EPA spokeswoman who requested anonymity told TheDCNF.
She was referring to Exemption Five of the Freedom of Information Act, which is the most often abused exemption federal officials cite to justify withholding information about government activities and programs.
“The public is given ample time to weigh in on during the public comment period once the site is proposed for [National Priorities List (NPL)] addition,” the spokeswoman continued. “EPA considers those comments before making a final decision.” (RELATED: Colorado Town Finally Succumbs To EPA Control After Resisting For Decades)
These committees, however, are involved in financial decisions, rather than adding a site to the NPL – how the EPA finalizes a Superfund designation, so the comment period does nothing to advance public understanding of how the two committees spend billions of tax dollars every year.
“Established in January 2009, the Special Accounts Senior Management Committee … is responsible for EPA’s national oversight and management of special accounts,” the agency’s website says. The committee “ensures appropriate management, transparency, and accountability … with special accounts.”
It’s nearly impossible to determine where the estimated $3.3 billion spent so far went, or who will get the remaining $3.5 billion (after adding interest). The EPA will also continue collecting funds from new superfund sites, such as the recently
Congress appropriates about $1 billion annually for EPA’s Superfund program, and the agency has accumulated nearly $6.8 billion in more than 1,300 slush fund-like accounts since 1990.
Two committees consisting entirely of EPA officials meet behind closed doors twice annually to decide how the agency spends those funds on highly polluted – and often dangerous – Superfund sites. All reports to and from the groups, as well as the minutes of their meetings and all other details, are kept behind closed doors.
“The National Risk-Based Priority Panel and the Superfund Special Accounts Senior Management Committee engage in pre-decisional deliberations which are internal to the agency and not open to the public,” an EPA spokeswoman who requested anonymity told TheDCNF.
She was referring to Exemption Five of the Freedom of Information Act, which is the most often abused exemption federal officials cite to justify withholding information about government activities and programs.
“The public is given ample time to weigh in on during the public comment period once the site is proposed for [National Priorities List (NPL)] addition,” the spokeswoman continued. “EPA considers those comments before making a final decision.” (RELATED: Colorado Town Finally Succumbs To EPA Control After Resisting For Decades)
These committees, however, are involved in financial decisions, rather than adding a site to the NPL – how the EPA finalizes a Superfund designation, so the comment period does nothing to advance public understanding of how the two committees spend billions of tax dollars every year.
“Established in January 2009, the Special Accounts Senior Management Committee … is responsible for EPA’s national oversight and management of special accounts,” the agency’s website says. The committee “ensures appropriate management, transparency, and accountability … with special accounts.”
It’s nearly impossible to determine where the estimated $3.3 billion spent so far went, or who will get the remaining $3.5 billion (after adding interest). The EPA will also continue collecting funds from new superfund sites, such as the recently
proposed Gold King Mine, where the agency spilled 880,000 pounds of dangerous metals into drinking water. (RELATED: Feds Say River They Polluted Is Safe, But Won’t Test Drinking Water)
Additionally, the EPA’s Inspector General has criticized numerous aspects of the special accounts, including the agency’s overall bookkeeping. The watchdog previously recommended transferring $65 million out of special accounts, for example.
The second group – the Superfund National Risk-Based Priority Panel – determines which unfunded sites require immediate attention based on several factors, such as the risk to the nearby community.
But the panel’s secrecy prevents residents from knowing where nearby hazardous places stand as an agency priority. This is particularly important, since 329 Superfund sites could expose dangerous contaminants to humans, according to EPA.
This confidentiality is necessary “to prevent polluters from taking advantage of the EPA’s funding decisions,” the EPA told the Center for Public Integrity in 2007. “Agency insiders,” however, told the center the real reason was to avoid congressional scrutiny.
That revelation is crucial, considering EPA withholds details about the special accounts, as well as sites endangering humans, from Congress. Not having such information effectively prevents Congress from exercising its constitutionally mandated oversight of executive branch agencies like EPA.
The EPA, for example, refused to divulge information about the sites exposing humans to dangerous contaminants to Senate Committee on Environment and Public Works democrats – including then-Sen. Barack Obama and Ranking Member Barbara Boxer of California, CPI reported. Some of the documents were eventually obtained, but were marked “privileged,” and could only be reviewed under EPA supervision.
Boxer’s spokeswoman did not respond to repeated DCNF requests for comment.
Additionally, the EPA’s Inspector General has criticized numerous aspects of the special accounts, including the agency’s overall bookkeeping. The watchdog previously recommended transferring $65 million out of special accounts, for example.
The second group – the Superfund National Risk-Based Priority Panel – determines which unfunded sites require immediate attention based on several factors, such as the risk to the nearby community.
But the panel’s secrecy prevents residents from knowing where nearby hazardous places stand as an agency priority. This is particularly important, since 329 Superfund sites could expose dangerous contaminants to humans, according to EPA.
This confidentiality is necessary “to prevent polluters from taking advantage of the EPA’s funding decisions,” the EPA told the Center for Public Integrity in 2007. “Agency insiders,” however, told the center the real reason was to avoid congressional scrutiny.
That revelation is crucial, considering EPA withholds details about the special accounts, as well as sites endangering humans, from Congress. Not having such information effectively prevents Congress from exercising its constitutionally mandated oversight of executive branch agencies like EPA.
The EPA, for example, refused to divulge information about the sites exposing humans to dangerous contaminants to Senate Committee on Environment and Public Works democrats – including then-Sen. Barack Obama and Ranking Member Barbara Boxer of California, CPI reported. Some of the documents were eventually obtained, but were marked “privileged,” and could only be reviewed under EPA supervision.
Boxer’s spokeswoman did not respond to repeated DCNF requests for comment.
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May 4,2016
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By Brady Dennis
This article first appeared in the Washington Post
A collection of environmental advocacy groups on Wednesday sued the Environmental Protection Agency, saying the government has failed to adequately regulate the disposal of waste generated by oil and gas drilling. In particular, the lawsuit seeks to force the agency to impose stricter rules on the disposal of wastewater, including that from hydraulic fracturing, or fracking. The wastewater is typically pumped into underground wells — a practice that has been linked to a growing number of earthquakes in Oklahoma, Colorado, Ohio and other states. The groups argue that the EPA has neglected to revise its existing rules for nearly three decades, despite acknowledging in the late 1980s that stricter requirements were needed for the handling of oil and gas drilling waste. “These rules are almost 30 years overdue,” said Adam Kron, a senior attorney at the Environmental Integrity Project, which filed the lawsuit in a D.C. federal court along with a half dozen other advocacy groups. He said that despite the millions of gallons of wastewater and hundreds of tons of solid waste that a drilling well can produce each year, the EPA has kept in place vague, inadequate regulations. “It’s definitely a more waste-intensive industry than ever before. If new rules were needed in 1988, they are certainly needed now.” In addition, the groups want the EPA to ban the practice of dumping fracking wastewater on fields and roads, where it potentially could pollute drinking water sources. They also want the agency to require that ponds and landfills where drilling and fracking waste are dumped be built to certain specifications and adequately lined to prevent leaks. The lawsuit asks the court to set strict deadlines for the EPA to adopt updated rules. “Waste from the oil and gas industry is very often toxic and should be treated that way,” Amy Mall, a senior policy analyst at the Natural Resources Defense Council, said in a statement Wednesday. “Right now, companies can get rid of their toxic mess in any number of dangerous ways, from spraying it on icy roads, to sending it to landfills with our everyday household trash, to injecting it underground where it can endanger drinking water and trigger earthquakes. EPA must step in and protect our communities and drinking water from the carcinogens, radioactive material and other dangerous substances that go hand-in-hand with oil and gas waste.” Last year, the EPA concluded a years-long review of U.S. fracking operations practices, saying it had found no evidence of widespread damage to drinking water supplies. But the agency did warn about the potential for contamination from the controversial technique, which played a major role in the oil and gas production boom in the United States in recent years. Fracking involves the injection of liquids into underground rock layers at high pressure to extract oil and gas trapped inside. But scientists also have linked the deep wastewater disposal wells associated with the practice to the startling increase in seismic activity across the central United States in recent years, particularly in Oklahoma. There, oil companies and their representatives have largely denied responsibility for the quakes, or suggested that the links are greatly exaggerated. It’s hard to deny that in certain geographic locations with certain geologic circumstances, we’ve had some problems with some wastewater wells,” A.J. |
Workers tend to a well head during a hydraulic fracturing operation outside Rifle, in western Colorado, in 2013. (Brennan Linsley/AP)
Ferate, vice president of regulatory affairs for the Oklahoma Independent Petroleum Association, told the Post last year. But “to make a blanket assertion that wastewater wells are always the cause, I don’t know that I can agree with that."
According to the EPA, an estimated 2 billion gallons of wastewater are injected each day into tens of thousands of underground wells operating around the country. Most oil and gas injection wells are located in Texas, California, Oklahoma, and Kansas. The Obama administration last year introduced tougher restrictions on oil and gas fracking operations on public lands, seeking to lower the risk of water contamination. Those rules, issued by the Interior Department, would apply only to oil and gas drilling on federal lands. Companies that drill on public lands would be subject to stricter design standards for wells and also for holding tanks and ponds where liquid wastes are stored. They also would have to publicly disclose any chemical additives to the liquid injected into fracking wells, which typically consists mainly of water and sand, with small amounts of other substances that can range from coffee grinds to acids and salts. Those regulations, opposed by industry groups who argued the requirements could increase production costs around the country, have been challenged in federal court and remain in legal limbo. States themselves are primarily responsible for the oversight of the majority of natural gas and oil development. An EPA spokeswoman said Wednesday the agency would not comment on pending litigation. The groups behind the federal suit originally filed a notice of their intent to sue EPA last August, saying they would move forward unless the agency took action on the issue. |
Environmental groups sue EPA, seek stricter rules over fracking waste linked to earthquakes
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MAY 3, 2016
The E.P.A. Ecologist Who Became a Wanted Man
By Tim Sohn —This story first appeared in the New Yorker.
A worker near the Pebble Mine, in Alaska ’s Bristol Bay region, which is at the center of a long-running legal battle between a Canadian developer, native tribes, commercial fishermen, and environmentalists.
CREDIT PHOTOGRAPH BY AL GRILLO / AP
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When Phil North retired from the Environmental Protection Agency, after a mostly quiet twenty-three-year career in Alaska, his plan was to embark on an around-the-world sailing trip with his wife and two young children. But when it came time to weigh anchor, there was a problem: the aging boat that North had docked in South Carolina proved unsalvageable. A hunt for another suitable vessel in his price range yielded nothing. After a series of discussions and a vote, the family decided, in early 2014, to fly to New Zealand. “We were only going to go for three months, but we loved it and ended up buying a camper van and driving around for ten months,” North, who is fifty-nine, told me recently. “And then our visa ran out, and we thought, We’re so close to Australia, we can’t not go.” So they went, and toured the country for another year.
As it turned out, North had good reason to stay away. While he was living out his retirement dreams abroad, something odd was happening back home. He was becoming perhaps the most infamous retired Alaskan bureaucrat anywhere—a rogue scientist on the lam, the subject of lawsuits, subpoenas, and congressional inquiries and hearings. At issue was North’s work on the Pebble Mine, an immense gold-and-copper prospect in southwest Alaska’s Bristol Bay region. For more than a decade, a fractious debate had pitted the Pebble Limited Partnership, the Canadian developer, against a coalition of indigenous tribes, commercial fishermen, and conservationists, who objected to locating an open-pit mine near the headwaters of one of the world’s largest salmon runs. At the time, North was an ecologist in the E.P.A.’s Aquatic Resources Program, working alone out of an office in the Kenai Peninsula town of Soldotna, where he dealt with enforcement, outreach, and education pertaining to the Clean Water Act. He was content, good at his job, and uninterested in politicking his way up the E.P.A. ladder. He prided himself on having a good reputation—“green but fair”—with the networks of regulators, consultants, and N.G.O.s that surround Alaska’s extraction industry, on both the business and conservation sides. North was assigned to work with Pebble in 2005, when the project’s advanced exploration phase got under way, but it wasn’t until 2011 that the E.P.A. took a more active role, announcing the Bristol Bay Watershed Assessment, a multi-year, peer-reviewed study of the mine’s potential impacts. The study’s results led the E.P.A. to conclude that a mine such as Pebble would pose too great an environmental risk to the region. In 2014, it sought to curb its development by invoking Section 404(c) of the Clean Water Act, which, though rarely used, gives the E.P.A. the power to restrict projects that would have an “unacceptable adverse effect” on surrounding waters and ecosystems. North, who had been his division’s point man on the assessment, necessarily played a role—though not, as E.P.A. officials have pointed out, in any sort of decision-making capacity. Pebble’s objections were vociferous from the start, and in 2014 it filed three lawsuits against the E.P.A. One was dismissed as premature, since the agency hadn’t yet rendered its final decision. The second, which is ongoing, alleges that the E.P.A. failed to satisfactorily fulfill Pebble’s requests under the Freedom of Information Act. The third suit, also ongoing, is the most significant. It alleges that North and the E.P.A. assembled a team of anti-mine activists to help guide their assessment, in violation of the Federal Advisory Committee Act. North was aware of the charges against him (he’d set up a Google Alert for his own name), but, on the advice of his attorney, he remained silent while abroad. In January of this year, Pebble finally found him—it won’t say how—house-sitting in western Australia, and served him with a subpoena. In late March, North flew to Washington, D.C., to be deposed by Pebble’s attorneys. Afterward, he told me that he had been eager to set the record straight. “Throughout this, what they’ve done is they’ve taken a few facts and then they’ve filled in all the rest of the stuff they don’t know and created a story around it,” he said. “But their story is wrong.” The story that Pebble has been telling, through lobbying and legal filings, is that the E.P.A.’s use of 404(c) amounted to a preëmptive veto of its project, based on a compromised study that denied the company due process before it had even turned in plans or permit applications. Pebble’s motion to subpoena North, filed last August, alleged that, starting in 2009, North began “recruiting and coördinating an entourage of scientists, lawyers, lobbyists, environmental groups, and Tribes,” later “secretly collaborating” with them to push through his own agenda, even going so far as to help a lawyer for six of the tribes draft a petition to the agency. (This petition, Pebble’s attorneys write, was the “purported catalyst” for the watershed study.) To read the documents, North sounds like a mastermind. His documentary record from those years is incomplete; files are missing from his government computer, and he occasionally conducted E.P.A business through his personal e-mail account. His apparent flight to parts unknown didn’t help. “His absence made creating that story possible,” Billie Garde, North’s attorney and a specialist in whistle-blower cases, told me. Pebble’s account, with its tree-hugging antihero, proved irresistible to the right-leaning press and to congressional Republicans, many of whom were already inclined to see the E.P.A. as the |
archetype of overreaching federal authority. Soon, they launched three separate inquiries.
When Pebble eventually found North, he felt a certain sense of relief. Here was his chance to end the vilification. In his two days of testimony with the company’s attorneys, plus another day with staff attorneys from the House Committee on Science, Space, and Technology, North said that he answered forthrightly and proved that there were no dark secrets. “It was much more of a non-event than I expected,” he said. “They just couldn’t dig deeper, because there was no deeper.” Indeed, North’s version of events was straightforward, verging on boring. In his time with the E.P.A., he told me, he occasionally worked from home, where he had difficulty logging onto the agency’s server. As a result, he sometimes resorted to using his personal e-mail, which he shut down when he left the country, transitioning from a paid account to a free one. And the missing electronic documents? “It’s quite simple: my hard drive crashed, and it was a pain in the ass, because I lost a lot of files that I needed,” he said. North saw nothing improper in the contact he’d had with anti-mining groups. “Community outreach and helping the public interact with the government was part of my job,” he said. He met frequently with both Pebble’s employees and its detractors, including, yes, the attorney who petitioned the E.P.A. to initiate the 404(c) process. “He sent the letter to me and said, ‘Can you take a look at this and tell me if I’m on the right track?’ ” North recalled. “I gave him a few word suggestions and edits and a comment that he should focus on ecosystems, and that was it.” North acknowledged that he wasn’t shy in voicing his opposition to Pebble, or advocating the use of the 404(c) process to block it, but he said that this, too, was in keeping with his appropriate role under the Clean Water Act. Besides, he added, his opinion was one among many. In Garde’s estimation, the depositions should have punctured the conspiracy theories. “I thought the whole thing was really anticlimactic,” she told me. “It’s like the dog that caught the car. Now they got it—what are they going to do with it?” For Pebble, though, North’s answers only reinforced what it had been saying all along. “The issue at hand is whether the Pebble Project was treated in a fair and unbiased manner by the E.P.A.,” Mike Heatwole, a spokesman for the developer, told me in an e-mail. “We’ve learned from depositions and press accounts that Mr. North lobbied relentlessly for his anti-Pebble position inside the agency over a period of years.” Heatwole noted that an investigation of the matter, led by the E.P.A.’s inspector general, cited North’s decision to provide feedback on the tribes’ petition as a “possible misuse of position.” While such behavior was neither illegal nor expressly prohibited, the report stated, North’s supervisor testified that he would not have approved it had he been consulted. (That same investigation, which Pebble requested, found no evidence of bias in the E.P.A.’s Bristol Bay study.) In a hearing last Thursday, the House Science Committee’s Republican majority continued raising questions about North. An opening statement by Lamar Smith, a Texas Republican and the committee chairman, set the tone. “In the course of the Committee’s investigation, we discovered that E.P.A. employees colluded with third-party Pebble Mine opponents,” he said. “Mr. North readily admitted to the Committee that he opposed the Pebble Mine and advocated among his colleagues that the agency use the Clean Water Act to stop it.” Smith went on to retread the litany of allegations against the agency and North. “It is not the decision for activist E.P.A. employees to decide to circumvent the processes established in the Clean Water Act,” he said. The hearing’s sole witness was North’s former boss, Dennis McLerran, the E.P.A. regional director who initiated the Bristol Bay Watershed Assessment. In two hours of testimony, McLerran was at pains to highlight the fairness, inclusivity, and thoroughness of the 404(c) process and the science behind it. He did not absolve North—at one point, he agreed that there “may have been a misuse of position”—so much as highlight how little impact a low-level employee could have had on an issue as big as this. It is the questions at the center of the hearing—of due process, personal opinion, and the E.P.A.’s proper role—that seem bound to keep North’s name in the news, even if the legal disagreement is eventually settled. “They don’t seem to be able to get their arms around the fact that just because he had a personal opinion and expressed it doesn’t mean he wasn’t doing his job,” Garde said. “That only makes sense if you believe the role of government is only to serve business interests and not also to work with members of the public to help them understand the morass of regulatory systems that exist to help them.” North left to rejoin his family in Indonesia, where they currently reside, the day after he finished giving his congressional testimony. They’re contemplating their next move, perhaps to Southeast Asia, perhaps to Chile, but either way North plans to go back to work soon in the private sector. “I hope this is the end of it, though I don’t really expect that to be the case,” he said. |
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Water Defense and Leading Construction Union Join Forces to Fight for Clean Water
For Immediate Release: April 22, 2016
For more information: Sam Wright
(917) 306-8857
swright@waterdefense.org www.waterdefense.org
(917) 306-8857
swright@waterdefense.org www.waterdefense.org
April 22, 2016: (Annapolis, MD) – The issue of clean water for drinking, bathing, cooking, and showering and lack of standards is a matter of critical, national concern. The tragedy of Flint, MI, has shone a powerful spotlight on what happens when our supply of clean water is seriously compromised, and this crisis has brought to the forefront a systemic vulnerability that threatens the safety of cities and towns all across North America.
Water Defense and the United Association of Plumbers, Pipefitters, Sprinklerfitters and Service Technicians (UA) have joined together to focus attention on the water crisis in the United States today, and to determine what can be done to address this growing problem. Water Defense is a non-profit organization founded by actor Mark Ruffalo and dedicated to ensuring clean water for our citizens and to support the belief that access to safe water is a fundamental right. The UA is the leading organization of piping professionals in North America and has been providing the skilled workforce responsible for the installation of water treatment systems and plumbing for more than 125 years.
Mark McManus, General Secretary-Treasurer of the UA, stated, “Our partnership with Water Defense ensures that our members of 343,000 strong and growing will have access to the best available water testing technology which enables us to better protect the communities we serve, detect problems before they become irreversible, and work in a collaborative way with Water Defense for solutions.”
Scott Smith, Chief Technology Officer and Investigator of Water Defense, stated, “Our partnership with the UA ensures that all communities will have immediate and scalable access to the best available and most comprehensive water testing technology. Furthermore, with this partnership we will be able to deliver solutions via the UA and work to prevent future Flint disasters. We are humbled and honored to be working side by side on the ground in Flint with the UA and directly with the Flint community. We will never forget the lessons learned from Flint and he inspiration from great community leaders of Flint that are setting the new standards for uniting a community to protect itself.”
Both Water Defense and the UA have been deeply involved in providing relief and assistance to the citizens of Flint, MI. The water crisis in Flint started when officials began drawing water from a different source than previously relied on, which later caused the presence of high lead levels and other chemicals of concern in the water used by city residents for drinking, showering, bathing and cooking.
The partnership between Water Defense and the UA will keep the focus on the need to ensure the integrity and safety of America’s water infrastructure, even as the two organizations continue to provide support to Flint residents. The struggle to protect our vulnerable water systems is just beginning, but these two organizations bring individuals’ strengths to the fight that will have a major impact in the months and years to come.
###
About Water Defense: Water Defense is a 501(c)(3) non-profit organization dedicated to clean water, rooted in the belief that access to clean water is a fundamental human right. Water Defense’s mission is to use technology and public engagement to inform people about what is in their water, hold water polluters accountable, and keep America’s waterways and drinking water sources free from contamination and industrial degradation.
About the UA: Founded in 1889, the United Association of Union Plumbers, Pipefitters, Sprinklerfitters, Welders and HVAC Technicians (UA) is a multi-craft union whose members are engaged in the fabrication, installation and servicing of piping systems. There are over 410,000 members affiliated with the UA throughout North America, Australia, and Ireland, including over 340,000 UA members belonging to more than 300 local unions in the United States and Canada.
Water Defense and the United Association of Plumbers, Pipefitters, Sprinklerfitters and Service Technicians (UA) have joined together to focus attention on the water crisis in the United States today, and to determine what can be done to address this growing problem. Water Defense is a non-profit organization founded by actor Mark Ruffalo and dedicated to ensuring clean water for our citizens and to support the belief that access to safe water is a fundamental right. The UA is the leading organization of piping professionals in North America and has been providing the skilled workforce responsible for the installation of water treatment systems and plumbing for more than 125 years.
Mark McManus, General Secretary-Treasurer of the UA, stated, “Our partnership with Water Defense ensures that our members of 343,000 strong and growing will have access to the best available water testing technology which enables us to better protect the communities we serve, detect problems before they become irreversible, and work in a collaborative way with Water Defense for solutions.”
Scott Smith, Chief Technology Officer and Investigator of Water Defense, stated, “Our partnership with the UA ensures that all communities will have immediate and scalable access to the best available and most comprehensive water testing technology. Furthermore, with this partnership we will be able to deliver solutions via the UA and work to prevent future Flint disasters. We are humbled and honored to be working side by side on the ground in Flint with the UA and directly with the Flint community. We will never forget the lessons learned from Flint and he inspiration from great community leaders of Flint that are setting the new standards for uniting a community to protect itself.”
Both Water Defense and the UA have been deeply involved in providing relief and assistance to the citizens of Flint, MI. The water crisis in Flint started when officials began drawing water from a different source than previously relied on, which later caused the presence of high lead levels and other chemicals of concern in the water used by city residents for drinking, showering, bathing and cooking.
The partnership between Water Defense and the UA will keep the focus on the need to ensure the integrity and safety of America’s water infrastructure, even as the two organizations continue to provide support to Flint residents. The struggle to protect our vulnerable water systems is just beginning, but these two organizations bring individuals’ strengths to the fight that will have a major impact in the months and years to come.
###
About Water Defense: Water Defense is a 501(c)(3) non-profit organization dedicated to clean water, rooted in the belief that access to clean water is a fundamental human right. Water Defense’s mission is to use technology and public engagement to inform people about what is in their water, hold water polluters accountable, and keep America’s waterways and drinking water sources free from contamination and industrial degradation.
About the UA: Founded in 1889, the United Association of Union Plumbers, Pipefitters, Sprinklerfitters, Welders and HVAC Technicians (UA) is a multi-craft union whose members are engaged in the fabrication, installation and servicing of piping systems. There are over 410,000 members affiliated with the UA throughout North America, Australia, and Ireland, including over 340,000 UA members belonging to more than 300 local unions in the United States and Canada.
Flint residents seek $220M in damages from EPA
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Jim Lynch, The Detroit News 8:50 a.m. EDT April 26, 2016
This article first appeared in the Detroit News The U.S. Environmental Protection Agency is now the latest governmental entity targeted for damages in a class action lawsuit stemming from the Flint water crisis.
On Monday, attorneys for more than 500 current and former city residents filed claims for personal injury and property damage. Those claims, which fall under the Federal Tort Claims Act, total more than $220 million in potential damages. In a statement released with the lawsuit Monday, plaintiffs’ attorney Michael Pitt wrote: “The EPA heard the alarm bell loud and clear but chose to ignore the profound environmental and public health issues brought to its attention in the early stages of this disaster. This agency attitude of ‘public be damned’ amounts to a cruel and unspeakable act of environmental injustice for which damages will have to be paid to the thousands of injured water users.” Pitt said a second filing representing another group of roughly 250 residents will be filed in the coming weeks. The lead plaintiff in the lawsuit is former Flint resident Jan Burgess, who first contact the EPA via the agency’s website in October 2014. While living in the city, she noticed the smell and taste issues that began as soon as Flint began drawing its drinking water from the river in April 2014. City and state officials failed to treat the river water with proper corrosion controls to prevent lead contamination between April 2014 and October 2015. The system, which still produces water samples with high lead concentrations, has been slow to recover after being switched to the Great Lakes Water Authority six months ago. Filling out an electronic form for reporting violations of environmental law and regulations, Burgess wrote: “The water is not safe to drink, cook or wash dishes with, or even give to pets. We worry every time we shower. The City of Flint is still very economically depressed and most citizens cannot afford to do anything other than use the river water.” Within in a week, Burgess received and email response confirming that state officials were investigating the problem. It was not until 18 months later that EPA officials would meet with Burgess about her concerns. That apparent lack of urgency has been noted by attorneys representing Burgess and others in the case against the EPA. In February 2015, EPA officials had become aware of problems — extremely high lead readings — at the home of Flint resident Lee-Anne Walters. In legal filings Monday, attorneys singled out EPA official Jennifer Crooks, who oversees water issues in Michigan. “Crooks... was aware that the Flint River was highly corrosive and that Flint had older, corroded lead service pipes which required corrosion control treatments,” the lawsuit reads. “She knew in February 2015, that (EPA water expert Miguel Del Toral) had observed lead-based ‘black sediment’ in the Waters’ water and that Jan Burgess reported in October 2014 (of) floating particles in her water.” Plaintiffs attorneys call out the EPA as a whole for failing to act month after month as the pieces of the Flint water crisis puzzle fell into place. |
Attorney Michael Pitt (Photo: Detroit News File Photo)
"By April 2015, the EPA was positive that corrosion control was not being used, yet failed to suggest, direct or counsel the (Michigan Department of Environmental Quality) and Flint to implement a corrosion control program until July 2015,” the complaint reads.
EPA officials could not be reached for comment Monday evening. But in recent months, as criticism of all government agencies involved in Flint’s water crisis has ratcheted up, federal officials have defended their actions. In March, EPA Administrator Gina McCarthy said her agency was partially obstructed in fulfilling its oversight role by Michigan officials. Testifying before a congressional committee, she said her agency was misled by Michigan environmental officials for months, leaving her agency with “insufficient” information to indicate a systemic lead problem in Flint until last summer. “Looking back on Flint, from Day One, the state provided our regional office with confusing, incomplete and incorrect information,” McCarthy said. “Their interactions with us were intransigent, misleading and contentious.” She later added, “up until today, they continue to drag their feet.” JLynch@detroitnews.com (313) 222-2034 |
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