National Environmental Policy Act (“NEPA”)
& Federal Power Act Case
In my first year of practice, I represented Friends of the River (“FOR”) challenging a decision by the Federal Energy Regulatory Commission approving the North Fork of the Stanislaus Hydroelectric Project. FOR attempted to protect an area of extraordinary beauty, containing one of the largest strands of cottonwood trees in the California. FOR argued that there was a viable alternative under NEPA to enlarge an existing reservoir that was not adequately discussed that would generate virtually an equivalent amount of electricity as the proposed project and not cause irreparable harm to the environment. I recall making about $600 in this case, through garage and bake sales. I travelled to Washington D.C. argued before Justices Bazelon, Scalia and Ginzburg at the D.C. Circuit Court of Appeals. While the Court found irregularities with NEPA, it did not remand. Friends of the River v. Federal Energy Regulatory Commission, 720 F.2d 93 (D.C. Circuit 1983). Justice Bazelon issued a strong dissenting opinion. Being entrusted with this high profile case at the beginning of my legal career and arguing before these Justices was a profound experience for me.
Recycling Cases
In a battle over whether the electorate would approve a large scale commitment to recycling or build an incinerator in west Berkeley, the court granted petitioner’s request for a Peremptory Writ of Mandate against the Alameda County Registrar of Voters finding that the Argument Against Measure D (advocating for the incinerator) and County Counsel’s Analysis of the ballot measure (the pro-incinerator position) was false and misleading. The court struck various language in Measure D. Measure D passed and the incinerator was never built. In a companion case, on behalf of Berkeleyans for Safe Waste Management, the court issued a Peremptory Writ of Mandate deleting language contained in the Berkeley City Attorney’s Analysis of Initiative Measure 7 as false and misleading. The analysis stated that “The City of Berkeley is under court order to stop dumping garbage in the Bay.” This statement was inserted to create the impression that the City was engaged in an environmentally destructive practice to make the proposal of burning garbage look better. In actuality, the City was not dumping garbage in the Bay, but rather transporting garbage to the Berkeley landfill which is situated adjacent to the Bay.
Nationwide Class Action Radiation Cases
I filed a series of class action lawsuits in Federal Court against manufacturers of camping mantles. These mantles contained thorium and when lit, emitted radiation including Thorium-232, Radium-228, Actinium-228, Thorium-228, Radium-224, Radon-220, Polonium-216, Lead-212, Bismuth-212, Polonium-212 and Thallium-208, capable of causing irreparable cellular damage. In the first case against The Coleman Company, the largest mantle manufacturer in the world, the company filed a motion to dismiss on the basis of the doctrines of preemption pursuant to the Atomic Energy Act, exhaustion of administrative remedies and primary jurisdiction. Despite an amicus by the U.S. Nuclear Regulatory Commission in support of Coleman, Chief Judge, United States District Court for the Eastern District of California, denied the motion, citing the recently decided United State Supreme Court case of Silkwood v. Kerr McGee Corp., 464 U.S. 238 (1984) which allowed for the recovery of damages pursuant to state tort remedies. This set the stage for the case to be settled and for other cases to be filed. In each case, the manufacturer was required to provide a warning attached to the mantle informing the consumer that the product contained radioactive material, that it was important to take precautions to avoid unnecessary exposure, and that exposure posed greater risks to children, pregnant women and nursing mothers. The warning also contained specific directions for safe use.
Protection of Native American Artifacts & Cultural Resources
I represented the National Parks and Conversation Association, the largest and oldest independent organization in the United States whose mission is to protect and enhance the National Park System. The case involved a proposed ski expansion in Lassen National Park that was adjacent to an Indian burial site. The case settled to provide for the protection of this valuable archeological and cultural resource.
Nuisance Cases
I represented numerous African-American and Hispanic plaintiffs against Zacky Farms, Peterson Manufacturing Company and Darling-Delaware in Fresno due to horrendous odors emanating from each facility that caused health symptoms and interfered with the community’s use and enjoyment of their homes and property. These odors entered people’s homes from open windows and swamp coolers. As a result of this litigation, the companies invested millions of dollars to upgrade industrial operations to control odors and provided money damages to compensate the plaintiffs. This was the ultimate environmental justice case where the city of Fresno did nothing to help this poor community for decades.
I represented Neighbors for Clean Air against Pacific Steel Casting Company, located at Second and Gilman Streets in west Berkeley due to odors from the company’s operations that caused health symptoms and affected the quality of life for many people in the neighborhood. Prior to this legal action, it was common for odor complaints to be lodged from Berkeley residents east of San Pablo Ave. and periodically as far away as the Berkeley hills. Neighbors for Clean Air was granted intervener status and participated in dozens of administrative hearings throughout the 1980’s at the Bay Area Air Quality Management District. While this was a long struggle, the Hearing Board issued both conditional and unconditional abatement orders requiring the company to install control technologies to reduce odors. Along with counsel from the Air District, I successfully defended the unconditional abatement order when the company sought a writ of mandate from the Alameda County Superior Court to overturn the agency’s order.
Endangered Species Act Case
I took on the first challenge in the country to amendments to the Endangered Species Act which allowed for the taking of endangered species pursuant to a Habitat Conservation Plan. The case sought to protect the habitat of the federally endangered Mission Blue butterfly from a large residential development on San Bruno Mountain. While the court held for the defendants, additional mitigation measures were taken to ensure the survival of the butterfly. See Friends of Endangered Species v. Jantzen, Director, U.S. Fish and Wildlife Service, County of San Mateo, City of Daly City, City of Brisbane, City of South San Francisco, Visitacion Associates, W.W. Dean & Associates, Presley of Northern California, & Fox Hall Investment Ltd., 760 F.2d 976 (9th Cir. 1985).
Land Use Cases: General Plans, Subdivision Map Act, Zoning, & California Environmental Quality Act (“CEQA”)
I represented the El Sobrante Valley Legal Defense Fund against the City of Richmond with the goal of protecting beautiful open space areas from excessive development. The court granted a Peremptory Writ of Mandate against the City to vacate and set aside its decision approving the tentative subdivision map for the Mosher Property project as constituting a violation of the City’s duty not to approve a subdivision in the absence of an adequate general plan and a prejudicial abuse of discretion in approving a subdivision that was inconsistent with the general plan in violation of state planning and zoning law.
I represented City Council member Stuart Flashman against the City of Emeryville for failing to conduct adequate environmental review under CEQA in regard to Chiron’s new biotech manufacturing facility and laboratories. The settlement required the City to prepare a focused EIR to evaluate environmental impacts of likely organisms and production conditions of the plant including accidental releases of biological, chemical or radiological hazards, air and water quality impacts, hazardous or radiological materials use, storage and disposal, sewage decontamination/treatment and traffic impacts. A full blown EIR was also required for the planned construction of office and administrative buildings. This was the first successful case in California in which a court required an environmental impact analysis pursuant to CEQA for a biotech facility.
Pesticide Case Against California Department of Pesticide Regulation
In 1918, Judge Winifred Smith of the Alameda County Superior Court granted Petitioners Ana Vasquez, Californians for Pesticide Reform and Pesticide Action Network North America’s Motion for Summary Judgment against the California Department of Pesticide Regulation (“DPR”) for the failure of the agency to go through the rulemaking process under the Administrative Procedure Act when DPR modified the Township Cap Program allowing an increase use of 1,3-Dichloropropene throughout California. 1,3-D is a listed Proposition 65 carcinogen. The victory allows the public the opportunity to provide review and comment on the draft regulation and hopefully shape the Township Cap Program so that the amount of pesticides applied in each township will adequately protect the health of farm workers, other nearby workers and residents to on-going pesticides applications. Dow Agrosciences, the manufacturer of 1,3-D has appealed the Judgment.
Pesticide Toxic Tort Cases
In the second largest pesticide exposure incident to occur in California, I represented 84 Hispanic children, their parents and the elderly who were exposed to metam sodium in Arvin, California. Metam sodium is used as a fumigant prior to planting various crops. It is a carcinogen and reproductive toxicant. This chemical was negligently applied at Kirschenman Farms, as the applicator failed to provide sufficient amounts of water in a timely manner in order to properly seal the chemical. Due to the negligent manner of application, the chemical drifted off-site and exposed the residential community situated across the street. As a result, many children and adults experienced burning/stinging eyes, irritation of the throat, coughing, difficulty breathing, headaches, dizziness, nausea, vomiting and skin irritations. After hundreds of days of depositions, this case settled on the day of trial, almost five years from the filing of the case. Plaintiffs were compensated for the health effects suffered from exposure to this dangerous chemical.
In other pesticide exposure cases in the San Joaquin Valley, I successfully represented a homeowner and teenage farm worker exposed to chemicals from different aerial pesticide applications. Both experienced severe breathing problems that led to asthma from inhalation of the pesticides. In another case, 12 farm workers suffered injuries when pesticides drifted from an adjacent farm to where they were working. In each case, I filed a legal action in the Central Valley and obtained a monetary settlement.
Chemical Exposure Toxic Tort Cases
Action for damages on behalf of 34 children and their families who suffered health effects from a toxic release of toluene and xylene from Cal-Tech Metal Finishing located at 841 31st Street in Oakland. The company was operating without a hazardous waste facilities permit or other grant of authorization from the Department of Toxic Substances Control. This environmental justice case settled and the residents were compensated for their injuries.
I represented residents living near the Chevron Refinery in Richmond when a release from the refinery caused health impacts. The case settled favorably to the residents on the day of trial resulting in monetary compensation to the plaintiffs.
Proposition 65 Cases
Since 1988, I have filed and settled hundreds of Proposition 65 cases involving toxic chemical exposures from air emissions from various industries all over California. I settled the first air toxic exposure case under Proposition 65. This case resulted in the elimination of two cancer causing chemicals - chloroform and methylene chloride. See Citizens for a Better Environment. v. Systron Donner Corp., No. C 90-04539 (Cal. Super. Ct. Contra Costa Co. October 18, 1990) (Consent Judgment). My work under Proposition 65 eliminated more toxic chemicals emitted into air than the work of the South Coast Air Quality Management District between 1988 and 2010. These chemicals were emitted from a variety of sources, including medical and biotechnology, foundries, battery manufacturing, recycling, metal plating, electroplating, aerospace, military, film production, dry cleaners, diesel engines, classroom portables and many different types of manufacturing facilities. The public health benefits that resulted were dramatic - the elimination of approximately 6,000 pounds of lead, 100,000 pounds of methylene chloride and 1.2 million pounds of perchloroethylene and the reduction of large amounts of methylene chloride, chloroform and hexavalent chromium emissions. Overall, these cases resulted in protecting the public health by eliminating toxic exposures to more than one million people throughout the State. An overview of many of these cases is set forth in published articles in the Tulane Environmental Law Journal and California State Bar Environmental Law publication.
Since 2010, I have been representing Environmental Research Center, Inc. in consumer cases pursuant to Proposition 65. These cases mainly involve the exposure to lead and cadmium from ingestion of nutritional supplements and food products. During this period, I have settled numerous cases that resulted in companies discontinuing sales to California, reducing or eliminating lead levels in the products, or providing a Proposition 65 warning on these products. Public health benefits reached over one million people.
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