The international corporate law firm formerly known as Jones, Day, Reavis, Pogue bragged three months ago about "winning" a federal pollution case involving the coal-to-gas plant in St. Augustine, Florida. This "victory" has apparently not yet been discussed at any City of St. Augustine city meeting, nor has the Jones, Day press release led to any local news coverage. Are you reading it here first?
St. Augustine, Florida's former manufactured gas plant (MGP) site -- like other such coal-to-gas sites around the country -- was a toxic site. It was supposedly cleaned up (was it and where were the contaminated soils really deposited -- EPA says it has no records and our City was told the cleanup would be cheaper because of lack of EPA supervision).
The supposedly cleaned up St. Augustine, Florida MGP site is now a construction site for the $70 million Sebastian Inland Harbor, locus of "upscale" condos, hotels and shopping.
Sebastian Inland Harbor construction (and sequelae) could not begin without 4.1 acres of artificial wetlands, whose botched construction under smug ST. AUGUSTINE CITY MANAGER WILLIAM B. HARRISS and EX-MAYOR GEORGE GARDNER led our Nation's Oldest City to take the entire contents of the old city dump and place it in the Old City Reservoir, leading to $47,248 in proposed fines for "serious" pollution and "lack of good faith," including lack of Army Corps of Engineers and St. Johns River Water Management District permits.
Jones, Day and CenterPoint Energy brag about how they "won" before Judge Harvey Schlesinger and a three-judge panel of the 11th Circuit Court of Appeals in Atlanta, Georgia.
Note how Jones, Jones, Day approaches environmental litigation -- not unlike P.T. Barnum, with none of the charm. Reliance on corporate "norms" to escape paying for corporate cleanup -- does it remind you of the book/film "A Civil Action?"
CenterPoint Energy's and Jones, Day's victory lap is reminiscent of the late New Orleans, Louisiana District Attorney Jim Garrison's bon mot -- "What do you expect from a pig but a grunt?" Check out Jones, Day's tacking, chest-thumping, nose-thumbing press release:
Eleventh Circuit Unanimously Affirms Summary Judgment for Jones Day in CERCLA Contribution Action
September 2006
The 11th Circuit recently decided that a variety of arrangements between a parent corporation represented by Jones Day and a former subsidiary with overlapping officers and directors were not enough to hold the parent directly responsible for the subsidiary's environmental cleanup liabilities. On September 6, 2006, the United States Court of Appeals for the Eleventh Circuit issued a unanimous opinion in Atlanta Gas Light Company v. UGI Utilities Inc., CenterPoint Energy Resources Corp. and Century Indemnity Company, __ F.3d __, (11th Cir., 2006), 2006 WL 254706 C.A. 11 (Fla), determining that CenterPoint, as a successor to American Gas & Power Company, was not liable as the operator of a former manufactured gas plant ("MGP") in St. Augustine Florida under the provisions of Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA" or "Superfund"), 42 U.S.C. § 9607(a). The 11th Circuit affirmed a decision issued in March 2005 by the United States District Court for the Middle District of Florida (J. Schlesinger). Atlanta Gas Light had sought contribution under CERCLA from CenterPoint, among others, alleging that it was the operator of the St. Augustine MGP facility at a time when its predecessor, American Gas & Power – an early-20th Century holding company with sponsorship obligations over 40 manufactured gas facilities throughout the United States –was the sole shareholder and parent corporation of the St. Augustine Gas and Electric Company which owned the facility. The 11th Circuit found that Atlanta Gas' allegations against CenterPoint were insufficient as a matter of law to find such liability.
The 11th Circuit opinion followed the reasoning set forth in United States v. Bestfoods, 524 U.S. 51 (1998), the seminal decision controlling a parent corporation's potential environmental liability under Superfund for contamination at a facility owned by a subsidiary. There, the Supreme Court confirmed that involvement by parent corporations in a subsidiary's affairs do not create Superfund liability if such involvement is consistent with the norms (sic) of such parent-subsidiary relationships. The Supreme Court held that to impose liability under § 107 of CERCLA upon a parent as a direct "operator" of a subsidiary's facility, a plaintiff must show the parent "manage[d], direct[ed], or conduct[ed] operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations." Id.at 66-67.
Jones Day successfully defended CenterPoint against Atlanta Gas Light's claims by pointing out that any involvement by CenterPoint's predecessor with its former subsidiary was consistent with those corporate norms and that Atlanta Gas had failed to provide evidence that CenterPoint's predecessor exercised day-to-day control over the St. Augustine MGP facility, much less any connection to the pollution at the site. The 11th Circuit Court of Appeals "looking at the facts through the prism of corporate norms (sic) as required by Bestfoods" agreed. The 11th Circuit determined that evidence of 1) overlapping officers and directors between CenterPoint and St. Augustine was not inconsistent with corporate norms; 2) service contracts between CenterPoint and St. Augustine did not demonstrate the level of control required by Bestfoods; and 3) allegations regarding the allegiances of certain company employees were unsupported in the record. In the words of the Court, "[W]e agree with the district court and conclude that a reasonable jury could not find from this record that CenterPoint managed, directed or conducted operations from the St. Augustine facility specifically related to pollution, leakage, or disposal of hazardous waste." Opinion at p. 16.
The Jones Day team (sic) representing CenterPoint in the appeal (and in the trial)[sic] were Jack Grady, Emily Baker, and Ryan Reavis.
Ed's Note: With summary judgment granted, how could there possibly have been a "trial?" Jones, Day's press release brags that its lawyers got the case dismissed on summary judgment. Whomever wrote the press release did not care enough to get their facts straight -- a motion for summary judgment being granted eliminates the need for a trial. Either there was a trial, or motion for summary judgment was granted. Jones, Day, Reavis, Pogue evidently believes that its press release will be read by corporations needing defense lawyers, who let lugubrious goobers decide whom to hire who don't know the difference between a trial and a motion for summary judgment.
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