Perdue Trial Opens, Oil Industry Sues Over Disclosure Regs, Supreme Court Rejects Chevron Ecuador Challenge, Macalester Visit (by Bob Percival)

On Tuesday October 9 I attended the opening of the long-awaited trial of the Waterkeepers’ lawsuit against the poultry industry (Perdue Incorporated) for polluting the Chesapeake Bay with chicken waste. The Waterkeepers are represented by the University of Maryland’s Environmental Law Clinic and the lawsuit has spawned outrageous attacks on the clinic by politicians close to the poultry industry, including Maryland’s Governor Matin O’Malley. Clinic Director Professor Jane Barrett gave a spectacular opening argument that explained the importance of the lawsuit and responded to the defendants’ false assertions that the suit seeks to destroy family farmers. It is anticipated that the trial, which is being held in federal district court in Baltimore, will take several weeks.

Last week the oil industry sued the U.S. Securities & Exchange Commission for issuing a regulation mandated by the Dodd/Frank Wall Street Financial Reform legislation to require oil companies to disclose their payments to foreign governments. The disclosure is designed to expose corruption, but it has been fiercely opposed by business groups, including the U.S. Chamber of Commerce and the American Petroleum Institute, who are two of the four plaintiffs in the lawsuit. Represented by Eugene Scalia, son of Justice Antonin Scalia, the groups argue that the disclosures would violate their First Amendment rights to freedom of speech, and that the SEC was arbitrary and capricious by rejecting their request for a “dictator’s veto” that would bar disclosure when the foreign government prohibit it. The importance of these rules was outlined in an op-ed by Libya’s former oil minister who claims that it would have prevented much of the former Libyan dictator’s corruption. See Najwa al-Beshti, “A LIbyan’s Plea to the SEC,” Washington Post, Aug. 17, 2012.

Last week the U.S. Supreme Court declined to review a decision by the U.S. Court of Appeals for the Second Circuit that lifted an injunction barring enforcement in any country of an Ecuadoran court’s $18 billion judgment against Chevron for oil pollution in Ecuador. Chevron Corporation v. Naranjo, No. 11-1428. The Halliburton Company, the National Association of Manufacturers, and the U.S. Chamber of Commerce had filed amicus briefs supporting Chevron. The judgment that they asked the Court to review had declared that a federal district court in New York had no power to “declare a foreign judgment null and void for all purposes in all countries.” Perhaps the irony was not lost on the Court that the very business groups seeking to bar foreigners from suing corporations in U.S. courts under the Alien Tort Statute (ATS) in the Kiobel case (see October 2, 2012 blog post) are asking the same Court for relief when foreign courts rule gainst them in lawsuits, like the one against Chevron, that initially were filed in the U.S. under the ATS, but later refiled abroad after the U.S. courts declined to hear them. Brent Kendall, Court Turns Away Chevron, Wall St. Journal, Oct. 10, 2012, at B2.

The Baltimore/Washington area is mourning the defeat of the Baltimore Orioles and Washington Nationals in the final Game 5 of the Major League Baseball Division Series. On Monday I was in Camden Yards to watch the Orioles beat the Yankees in Game 2 of the ALDS and on Wednesday I watched the St. Louis Cardinals beat the Nationals in Game 3 of the NLDS. I did not attend any other games because I flew to Minneapolis on Thursday to visit my alma mater Macalester College in St. Paul. On Thursday I attended an International Roundtable followed dinner with Mac’s terrific Environmental Studies faculty. On Friday I gave a guest lecture on environmental litigation in Professor Patrick Schmidt’s seminar on Litigation and Public Policy and then I attended a poster session highlighting research by Mac’s Environmental Studies students.