Our Litigation Department may not be the largest division within CBF, but it has earned a nationwide reputation for taking on the intractable issues which impede the effort to restore the Chesapeake Bay and its rivers and ensure a pollution-free environment for every community in the watershed. As we hear from CBF's Vice President of Litigation Jon Mueller, it takes inter-departmental teamwork and support, along with dedication, creative thinking, and hard work to hold government and polluters accountable. We sat down with Mueller to learn more.
What are the origins of CBF’s Litigation Department?
I first arrived at CBF in December of 2004 as the first Director of CBF’s Litigation Department. The organization had a history of participating in environmental litigation, including several landmark cases, but never using in-house trial counsel. Our Board recognized the need to augment its education, restoration, and advocacy programs with what, in many ways, is a means of last resort to resolve difficult problems.
I had spent 17 years at United States Department of Justice (DOJ) prior to coming to CBF, first as a trial attorney spending over three-quarters of my time prosecuting environmental contamination cases developed as a result of EPA’s Superfund program. In the late ‘90s, I became a Senior Attorney and tried cases involving Natural Resources Damages, the Resource Conservation Act, and the Clean Air Act.
In 2004, the opportunity to lead CBF's new litigation department presented itself. It sounded like exactly what I wanted to do. I always wanted to work where I lived. At DOJ, I was in North Carolina, in Florida, in Hawaii, and California, but nothing in Maryland or Virginia (where I was living at the time).
As the new department was forming, how did you determine which cases to pursue?
I drew in large part on how things worked at Justice. EPA develops the cases, and they refer them to the Justice Department. The attorney assigned to the case has to make a recommendation to the Attorney General in a memo form explaining why this is the right path, along with any pitfalls, and the legal theories. CBF's Board had similarly developed a careful method by which the director would make lawsuit recommendations to the Board’s Litigation Committee. With guidance from President Will Baker, the first Chair of the Litigation Committee Simon Sidamon-Eristoff, and former Vice President for Environmental Protection and Restoration Roy Hoagland, we all worked together to develop a plan for cases. These internal operating procedures require CBF's attorneys to evaluate the facts, law, as well as the practical and political implications of each prospective lawsuit.
How has the litigation team evolved over time?
As the cases started to mount up, and recognizing that I was only licensed in Virginia, we needed people who could do more in other states, and that’s when we hired Amy McDonnell as a Staff Litigation Attorney.
Going through the hiring process, I realized that there were a lot of attorneys out there who really wanted to do this kind of work but maybe didn’t have the necessary experience … needed for them to jump in and pick up some difficult cases, [yet] not need as much mentoring as somebody straight out of school. With that recognition, the Litigation Fellowship program was created and funded by generous donor support. Our first fellow, Ariel Solaski, stayed on as a second Staff Litigation Attorney. Another fellow, Brittany Wright, came to CBF with extensive experience and knowledge of climate change issues. She continues to work at CBF as a Staff Litigation Attorney.
Each Litigation Fellow arrives with particular interests and skills. Fellow Alayna Chuney had experience in community outreach that allowed CBF to pursue environmental law cases involving equity and environmental justice issues. These included the modification of the structured sewer overflow consent decree in Baltimore City, and the application of more stringent emission requirements to the BRESCO municipal waste incinerator, also located in Baltimore. Alayna remained on staff as CBF's first dedicated Environmental Justice Staff Attorney. Taylor Lilley assumed that role in September. And the fellowship continues to this day with Miranda Jensen serving as the current Litigation Fellow. Prior to joining CBF, Miranda served as a judicial clerk in the Massachusetts Land Court in Boston. Like Ariel and Brittany, she is a graduate of the Vermont Law School.
What's been your proudest accomplishment for the department?
There were a number of people here who encouraged me to no end. They came to the oral argument in the Phillip Morris case in front of the Virginia Supreme Court . . . and it was me against this phalanx of lawyers from the government and Hunton and Williams that Will [Baker, CBF President] loves to tell. But the part that I felt so supported in is that Will came, Fay Nance our Director of Finance, Roy, [former CBF Virginia Office Executive Director] Ann Jennings, and others came and watched the argument and supported me so much afterwards. They were the ones who directed me to take these cases. They were the ones who gave me the background and facts that I needed to develop the case and put on the Bay Story. They were the people who exposed me to Tangier Island Mayor James "Ooker" Eskridge and other watermen . . . And so it can’t be just about me—it’s been about this dynamic, amazing team of people at CBF.
Right now we're working on a lot of big cases, and they involve a lot of work and compassion—hard work, really digging into some areas of law you’re not going to find in a textbook, you’re not going to find in cases. These are unique in a lot of ways . . . and I’m impressed every day by the work that everybody here does.
Our first really big case was the suit against EPA to get it to comply with the Clean Water Act and develop a Total Maximum Daily Load [for the Chesapeake Bay]. While we did bring the lawsuit that ultimately resulted in it, there were a lot of other backs that we climbed on to get there. There were some earlier cases that were filed by the American Canoe and American Littoral Societies that developed and followed on the theory of constructive non-submission of impairments and TMDLs that was driving Virginia and EPA simultaneously to this deadline of 2010. The people who developed the Bay Agreements recognized that 2010 was a critical date to try and get the Bay off the impaired waters list. This case resulted in the Chesapeake Clean Water Blueprint, which was challenged by a consortium led by the American Farm Bureau in 2010, and ultimately upheld by the United States Third Circuit Court of Appeals.
CBF intervened in this litigation in support of the Blueprint. This is where I feel that CBF contributed in a very strong way by delivering a message and theory of the case that resonated with the court. I will never forget after the oral argument before Judge Rambo in the Middle District of Pennsylvania, the opposing counsel coming up to me after my argument and saying, ‘That’s why people intervene in cases.’
What does the future hold for the litigation team?
Looking ahead, I want to pursue cases that make the biggest difference to CBF's supporters and communities in the watershed. One of the cases that most excited me about working here was one involving mercury pollution in the Bay. I had to make a recommendation to CBF's Board and establish standing to bring the lawsuit. The best way to do that was to show that the people either working for the Bay Foundation or our members had been exposed to high levels of mercury from eating fish.
I’ll never forget . . . we got members of staff and the Board to sit in one of our meeting rooms and have a little bit of their hair snipped, put in a vial, and sent off to a laboratory to be analyzed for mercury . . . and to find that some members of the Board were greatly exposed, some of their family members who were women of child bearing years and staff members of child bearing years had been exposed to high levels of mercury from eating local fish.
I think that's where I realized that CBF's place in all of this is to focus on those things that are uniquely Bay oriented and have an impact on those people who live within the Bay watershed. So that’s where I think CBF belongs—whether that's going after an individual polluter, or a developer that's run off the rails, or government, I think it's our job to present the Bay Story.
This is the first in a series of stories about CBF's critical, litigation work. Stay tuned for next month's Watershed Watchdogs blog post!
Paul Smail, Staff Litigation Attorney