Monday, February 10, 2014

Confessions of an industry lacky

When I practiced law at a firm that defended companies and corporations, my particular department specialized in coal industry matters.  We were the go-to guys for arguing that coal companies should face minimal responsibility for accidents or explosions that maim or kill, impoundment dams that flood, or dust and waste water that pollute.  We specialized in arguing that miners who develop coal workers pneumonconiosis should not receive the black lung benefits authorized for them or their surviving widows and children by Congress.

The lawyers in our firm worked closely with the local trade associations to draft state laws favorable to mining interests.  The original drafts for such laws typically originated either with the local trade group, or in the form of a template obtained from a larger, national entity. Our job was to massage the wording in the template to reflect local conditions, and to assure that the wording in the proposed legislation, if it could not specifically benefit the coal industry, remain as ambiguous as possible.

Yes, you read that right.  Our clients often wanted us to deliver a deliberately ambiguous document, for when it comes to laws and regulations, ambiguity is the mother of litigation.  And the next best thing to having a law worded in a way that furthers an industry's goal, is having the law worded so ambiguously that it cannot be used against an industry -- at least, not until it is tied up in litigation before trial and appellate courts for years and years, while judges struggle to determine the intent and meaning of law.

Which brings us to Senate Bill 417, the new legislation passed by the West Virginia State Senate, and forwarded for consideration and debate by the West Virginia House of Delegates.  The proposed law is a response to the pollution of the Elk River by a leaking chemical tank, and the resulting deprivation of potable water to 300,000 residents in a nine-county area.

In on-camera interviews and during public meetings, law makers state that the purpose of the new law is to assure that the rivers, springs, and wells that provide water to the state's residents are protected from any pollution like that which occurred during the Elk River disaster.  However, when the very first words of the proposed law state that  "The Legislature recognizes that industrial businesses are vital to our economy, create good-paying jobs with benefits for our citizens, and ensure that commerce will continue to flourish in West Virginia(,)" law makers have essentially told judges that they may place the needs of industry above those of human residents when attempting to interpret and resolve ambiguities in the law and regulations promulgated to enforce that law.

Furthermore, when the law goes on to state that "The Legislature also recognizes that many factors go into an industrial facility's selection of a site to do business, including, but not limited to ... a state's regulatory environment ... (,)" lawmakers have provided industry with a strong basis for arguing that courts may interpret the law and apply regulations in a manner that places the health of industries' bottom line over the health of individual citizens.

All of which is a long way of saying that passing a new law, by itself, will not prevent future incidents like the Elk River disaster.  Nor will passing a law that has a feel-good -- but misleading -- name that is at odds with the legislative findings or history set forth at the beginning of the law.  Every word, clause, paragraph, and section of a law must support its publicized purpose.  And once the law is passed, there must be individuals in the executive branch with the political guts to assure that the law is implemented and penalties enforced. 

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