Professor William H. Rodgers, Jr.
Interview with Rachael Paschal Osborn, May 21, 2016
The Center for Environmental Law & Policy honored Professor Rodgers with the 2016 Ralph W. Johnson Award, recognizing and celebrating a lifetime of achievement in protecting the environment and the public’s waters. Johnson and Rodgers were colleagues and friends. This interview was completed in advance of CELP’s Celebrate Water! event held on June 8, 2016 at Ivar’s Salmon House in Seattle, and as part of CELP’s Voices for Water project.
Additional links as backdrop to this interview:
- The Puyallup Indian Tribes’ Tribute to Professor Bill Rodgers (June 8, 2016)
- Environmental Law Institute interview (2015)
- The Personal Impact of the Boldt Case: A Tribute to Professor William H. Rodgers, Jr. (2007)
- The Si’lailo Way: Indians, Salmon and Law on the Columbia River (2006)
- Book claims Copper Producers deceiving State on Pollution (1973)
- Congressional testimony during the founding days of Environmental Law (1970 – 1974)
- Banning DDT – Washington State (1969-1970)
- UW School of Law: Profile of William H. Rodgers
Rachael Paschal Osborn: You love the law and you love to teach. Tell us about your childhood and especially what influenced you to become interested in environmental and Indian law.
Professor Rodgers: When I was 10 or 11 my dad got a job in Scarsdale, New York. Those summers I lived at our 19-acre family farm in Massachusetts. There were swamps and woods without end. Then came Route 24 – our farm was taken by Route 24. To this day I can hear the anger in my mother’s voice as she talked about the “John J. Volpe Construction Company.”
Family Farm, Highway Survey Stakes
Rachael: That is very ironic. John Volpe was the named defendant in Citizens to Preserve Overton Park v. Volpe, the first modern administrative law case.
Professor Rodgers: Yes, Volpe was the builder who later became the Secretary of Transportation in the Nixon Administration.
During those summers I raised ducks and chickens. I remember how they imprinted on me. Konrad Lorenz would get the Nobel Prize for what every kid knew: if you were around when they hatched, those chicks would latch onto you. Of the many hens, I especially remember Peewee. She was so very gentle. When spring came I used to go the 20 miles from Randolph to Brockton, Massachusetts, to buy the chicks. I remember buying some seventy day-old chicks. We had no running water. No electricity. You had to heat the water for 70 baby chicks – that’s a lot of hot water. Peewee was nominated to be the mother of the chicks. Peewee was a hen version of nervous breakdown – she stayed with them heroically without a single mortality.
Rachael: So you grew up around nature.
Professor Rodgers: Yes. There on our family farm in Massachusetts is where I bonded to the environment. I remember all those survey stakes when Route 24 came through our farm. You’ve been through it in one degree or another. As a little kid I remember pulling up the survey stakes. Since then I’ve come to find out that someone made a career of it.
Rachael: You and Edward Abbey. What did you study in college?
Professor Rodgers: I guess you would call it economics.
We still had the draft. Before I went to law school I was in the Marine Corps. As a recruit I was at Parris Island. The Marine Corps has two basic training facilities: Parris Island and San Diego. We called the San Diego Marines the “Hollywood Marines.” By the way you know they poisoned the groundwater at Parris Island?
In college I do remember Game Theory. One of my professors was Thomas Schelling, the great game theorist. His first lecture was on Hitler – very relevant today. When Hitler said, “This is my last conquest in Europe,” people were thinking he’s crazy but maybe we should go along because he is crazy.
Rachael: You went to law school at Columbia?
Love of litigation
Professor Rodgers: Yes and then I clerked for two years in the Southern District of New York — that was a big litigating place. I just loved it, loved it. I was around litigation at a very impressionable age.
One litigation story involved the owner of the Oakland A’s, Charlie Finley. Charlie was being sued by his attorney over counsel fees. Charlie hated lawyers. It was a non-jury trial so I got to talk to him quite a bit. The funniest thing that happened in the trial happened when they brought in a dignitary, Simon Rifkind. Rifkind later was the hearing examiner in the California v. Arizona water cases. Counsel asked Rifkind how much was this legal service worth that Charlie Finley was suing over. Rifkind responded, “I value the legal services at $1 million.” On cross-examination Finley’s attorney, a former police commissioner for New York, asked Rifkin, “Judge Rifkin (he’s formally a judge) how many questions did this lawyer ask to earn the 1 million dollars you say he’s entitled to?” Rifkin responds, “Some of the best lawyers don’t ask any questions at all.” At this point I’m telling Charlie that was a big screw-up, you’re going to lose this case. And he did.
So I spent those two years in litigation heaven. Then I would start teaching at the University of Washington — so I was very young.
Rachael: Who recruited you to the University of Washington? How did you get that job?
Professor Rodgers: I was looking for a law school and a great place to live and that was the University of Washington, but I don’t have many memories of how I got that job.
Rachael: I know Ralph Johnson must have been there by then. He started in 1955.
Professor Rodgers: Yes Ralph was definitely there by then. The first course I taught was not environmental law. I taught Equitable Remedies. Back then, the chancellor used to have to sort out these things. When the court issued an order, if you didn’t comply, the chancellor could put you on a “rack and pile on stones” until you signed the order. I’ve often thought how today the court orders the legislature to do something and they don’t respond. The old chancellor would have taken care of that.
Rachael: Equitable remedies are interesting: all the things that judges can do instead of ordering that you pay money.
Professor Rodgers: Injunctions. These were powerful. You can look back and see the cases brought on nuisance law and the injunctions. This quickly became environmental law.
Rachael: So did you develop the environmental law program at the University of Washington?
Professor Rodgers: Oh, yes. I left pretty quickly for Georgetown. I do recall that while teaching at the law school during those years I did start bringing lawsuits. In one case, Rodgers vs Ramon. I challenged the Seattle Chief of Police over issuing gun permits basically upon request. My lawyer was [former UW Law School Dean] Alfred Schweppe, one of Seattle’s prominent lawyers during that time. That was essentially a lawsuit over gun control – and we won.
The Smelter Cases
Rachael: So you go to Georgetown in Washington D.C. during the early 1970s and that is where you start working on environmental legislation.
Professor Rodgers: My book, Corporate Country, was published in 1973 just about the time I started at Georgetown. Ralph Johnson would later pull me into Indian law. For pollution I was immediately pulled into the copper smelter cases.
I was involved in the one case in Tacoma but there were actually four smelter cases: Tacoma, ASARCO; Montana, Anaconda; Phelps Dodge in New Mexico; and Kennecott in Utah. I either testified or was a lawyer in all of those cases simultaneously.
I remember very explicitly the case in El Paso. This was a case involving kids. Smeltertown was built around the smelter stack right on the Rio Grande River. The smelter workers are mostly Hispanic. Their kids end up in the hospital with lead poisoning: 90 kids, that was a big deal. At some point I met all of the people who did the lead studies at ASARCO. The one thing I remember about the case was the kid — we were all kids back then — who brought the case was the city attorney and also the grandson of the chairman of the board of Phelps Dodge.
For these cases I just went to the University of Washington and recruited all the best people – Bob Charleson (he became a leading scientist on climate change), all the economists. My instructions were to tell the people what they need to know.
Rachael: It’s valuable to have the resources of the University of Washington at hand.
Professor Rodgers: These were really great guys. Mike Pilat was there as was our engineer. Clancy Gordon, a great botanist, was at Montana. A lot of experts were young and their careers would grow.
From the point of view of practicing law I was indifferent: go ahead, bring on your cross-examination. I was on the righteous side as those four smelter cases proceeded.
My chief adversary was an attorney named Richard Stewart who was the lawyer for Covington & Burling. Stewart is my contemporary. I got to know him very well during this litigation, including his strategies. When we were departing Stewart said he was going to teach environmental law at Harvard.
I remember one of the Montana hearings was really a populist hearing. John Place was an investment banker and chairman of the board for Anaconda. Mr. Place had made his first trip to Montana. At the hearing everyone got 5 minutes. So you had one of the workers from the plant, a student, prof, somebody else. Then John Place testified: “I’m John Place. I’m Chairman of the Board . . . .”
“Mr. Place, your five minutes are up.”
“Wait a minute. Wait a minute . . . .”
So I had a lot of that going on during these four smelter cases.
Takeover of the BIA office, Indian Policy Review Commission, Wounded Knee
Rachael: tell us how you became involved in Indian law and in the struggles by the tribes.
Professor Rodgers: Mostly through Ralph initially but also through Hank Adams. Hank was raised a Quinault. Hank was really phenomenal. I know the same thing happened to Ralph: Hank would actually file the papers and then show up in your office:
“Hey Bill, I got a lawsuit.”
“Well, tell me about it.”
“It’s in court tomorrow.”
I do remember this one case in which Hank had these writs of habeas corpus. I was his attorney before the Washington State Supreme Court. One of the Justices asks: “Does Mr. Adams have treaty fishing rights?” I’m thinking Jesus, that’s a good question. I knew he was raised a Quinault. But he’s actually Sioux. Red Cloud is his great-grandfather.
Hank was involved in the takeover of the Bureau of Indian Affairs office in 1972 by a group of Native Americans with the American Indian Movement (AIM) after the Trail of Broken Treaties. I was at Georgetown. I was their lawyer. I’m thinking, “I’m just barely a member of the bar.” (By the way, after my first class, I had to take the bar with all my students – that could have turned out really badly.)
So they take over the BIA building. They were there for a week or ten days. We are all wondering, “Are they going to shoot the place up?” During this time Hank is the White House eyes and ears. When they end the takeover, they walk off with all the documents. This is a purge of documents. When they return them, they walk them back to Jack Anderson, a syndicated columnist running in about 600 newspapers. So I’m Hank’s lawyer. The FBI arrests Hank, along with Jack Andersen’s right-hand guy, Les Whitten. There was also a third arrest, I don’t recall her name, an activist from one of the Southwest tribes. They’re all charged with possessing stolen documents.
I recruited John Kramer who was one of my colleagues at Georgetown and also general counsel to the House Agriculture Committee, and Jack Miller, Nixon’s lawyer.
The Grand Jury refused to indict because the case had become this first amendment crusade of all time. As an attorney in this situation, you have absolutely nothing to do because you can’t go into the Grand Jury. All you can do is chit chat with all the newspapers. So the Grand Jury refused to indict and that was a great first amendment victory.
Hank was a great tactical thinker. Hank figured out that the government would either shoot a bunch of Indians or create an Indian Policy Review Commission — which is what they did. So Hank had me draft the language. Sen. Magnuson had just finished a presidential study on consumer products safety. It contained boilerplate language on how to set up a presidential committee. I copied that. I never went back to read the language – I was thinking I knew I had left something in there on refrigerators. But that became the Indian Policy Review Commission. Hank had thought that through.
Wounded Knee was right after the takeover of BIA. That was an armed standoff, shootouts, and eventually two FBI agents got shot and killed. That becomes really huge.
Rachael: That involves Leonard Peltier. He is still in prison for that. People are hoping that President Obama will commute his sentence.
Professor Rodgers: Hank writes a series of documents to Vine Deloria to bring him up to date. He’s basically the inside guy for the White House. But that puts me at Georgetown in 1972. I must have immediately made connections with the Muskie people. I testified a lot before Congress.
Rachael: Right. There’s a long list of your Congressional testimony.
Professor Rodgers: So that was what was happening in the early 1970s.
The Nation’s Environmental Laws
Rachael: looking back in at what was going on in 1973: Clean Water Act, Energy and Environmental Standards, Clean Air Act oversight . . . .
Professor Rodgers: There were good guys in Congress then. One of them was Lee Metcalf. In 1972 Metcalf held hearings on the Federal Advisory Committee Act (FACA). I know I testified on that. Nixon had set up the National Industrial Pollution Control Council (NIPCC): these were all the thugs, including the ones I knew personally because of the smelter cases. So all those things were happening.
Rachael: the number of Congressional hearings that you were testifying in is just phenomenal. Were you testifying as the law professor, the expert?
Professor Rodgers: This gets to the question of who do you speak for. I always knew I didn’t have a constituency. They got my personal opinion. But often I could provide deliverables. For example I had made a FOIA request for the NIPCC minutes – FOIA was extant then. So I have these minutes and that’s a find for Lee Metcalf’s committee. The federal Clean Water Act happens in October of 1972, so the hearings must have preceded that by a lot. I started at the University of Washington in 1967 so I must have been back in Georgetown immediately in 1971. I don’t think I had tenure, although it didn’t matter then.
Rachael: I heard it said that you were involved with developing NEPA, is that right?
Professor Rodgers: I must have testified on that too. Remember that [Sen. Henry] Jackson is our guy. One thing about Jackson, he was indefatigable. You talk about staying up all night. He would work all day, fly out to the West Coast, then come to the law school – he would be so happy to meet eight students at a time when he should have been asleep. So Jackson was our guy, but we had Maggie [Sen. Warren Magnuson) too. This was a huge benefit for the University of Washington and academic connections. Ralph’s students and my students – I remember Bud Walsh was a student that I had very early. Walsh wrote the Magnuson Act and that comes in 1975. A lot of our students were either working for Jackson or Magnuson.
Rachael: There were the something “bees,” hand-picked students, that would buzz out to Washington DC.
Professor Rodgers: That was a huge uplift for the University of Washington.
The Boldt Decision and the Salmon Cases
Rachael: So Hank Adams was the person who drew you in to Indian law. And then you got involved representing the Puyallup Tribe. How did that happen?
Professor Rodgers: By that time I had been absorbed by the whole crowd. Remember U.S. v. Washington was filed in 1970. So Ralph was there . . . .
Rachael: Ralph started with the Sohappy v. Smith case which then became U.S. v. Oregon and then the Washington case was filed.
Professor Rodgers: Ralph was there. There were great litigators. David Getches was on the complaint. What had become distinguished regional lawyers, OEO lawyers – Office of Economic Opportunity, poverty lawyers, Alan Stay, Phil Katzen: the whole gang. Then they switched over to different tribes.
Rachael: Also involved was Columbia Legal Services. And of course there was NARF.
Professor Rodgers: I don’t remember how I made the Puyallup connection but it was pretty early. I remember we were already arguing Phase 2 – that’s now the “culvert case.”
Rachael: Yes, that’s the environmental case.
Professor Rodgers: We almost had it in 1980. First the Boldt Decision, and then we were going to try Phase 2. We were going to try Elwha, and then Elwha got preempted legislatively. Then it became culverts.
But there was one part of that where I really needed help. When Puyallup II was remanded, I was the trial lawyer for the Puyallups. That was when they were trying the hatchery fish issue: whether a hatchery fish is a fish for the purposes of the treaty.
Rachael: Yes, one of the many imponderable questions spun off from the Boldt decision.
Professor Rodgers: That’s how they were going to defeat Boldt. They were already collaterally attacking Boldt. The way they were going to do it was to take the hatchery fish away from them. These fish were “invented by the white man.” No one knew what a hatchery was in 1854 [when the treaties were signed].
One thing we found during discovery was that one of the biologists was evaluating Hatchery fish. He writes, “Gees, I can’t tell you.” In those days you had to look at one of the fins to see if there was damage from scraping along the bottom. He writes, “Damned if I can tell the difference. It’s like flipping a coin.”
So on cross-examination:
“Did you say it was like flipping a coin?”
“Do you know what your attorneys are asking for?”
“Yup, 50 percent.”
“What would 50 percent be if you did flip a coin?”
“Well, it would be 50 percent.”
So we went around. The Boldt decision now had a lot of momentum. This is around 1977 or ’78.
Rachael: 1974 when Boldt ruled.
Professor Rodgers: Yes. In 1977 they had me trapped in Puyallup III – can you issue an injunction to the Puyallup Tribe, whether a Hatchery fish is a fish. The best move I ever made with much advice and encouragement by my friends came because it would have been crazy to take that case to the Supreme Court. So they basically said “if you get a ruling against you, don’t appeal it.” We then got the whole gang to take all the tribes to Judge Bolt on hatchery fish.
Rachael: So that’s how that happened.
Professor Rodgers: Yes, so that’s how that happened. I had 90 days to petition for certification. I didn’t petition.
Rachael: That’s a scary moment.
Professor Rodgers: But I don’t petition on hatchery fish because of the advice of all my colleagues. They were really good — and they were right. So they took it to Judge Boldt.
We’ve always joked about my fee, which has to be approved by the BIA. For these years of litigation it was $1 per year, which they never paid. So they owe me about ten or twelve dollars.
Rachael: Accumulating interest.
Prof. Ralph W. Johnson, Native American Law Center, Supreme Court reviews
Professor Rodgers: Now, Ralph. Can I talk about Ralph? The thing about Ralph, which I’ve learned through the years: senior colleagues can be an enormous pain. They’re jealous. They like doing it their way. They were celebrated for doing it that way. There are so many things that you can put in the way of this new guy. Never saw a breath of it from Ralph.
I was probably in Ralph’s office when Hank came in or Billy Frank for these cases – they were just seamless.
Rachael: I’m sure that Ralph did seamlessly delegate. He was very good at that.
Professor Rodgers: Well, you know him. And that is certainly true of his personality. He’s perfect that way. You know how it is. For most of your career you have no experience. You’re too young. Then at a certain point, you’re too old. When was that sweet spot? You were never properly qualified as far as we can tell.
Ralph was very easy and comfortable on that. With Ralph there was never, “Did you see a lot of Indians in the building? I’m not going to my office. I’ll hide here.” So all the things Ralph did in founding Indian Law, as you know, are so true.
One last story about Ralph. When Ron Hjorth was [law school] Dean, Ralph had that bad hip surgery. He was a disaster. I was old enough. I remember we go hobbling over. We were trying to get a grant from the University of Washington for the Indian program.
Rachael: To start the Native American Law Center.
Professor Rodgers: Yes. And the Provost is a female. She looks at this wreckage – this non-Indian wreckage – stumbling into her office wanting to set up an Indian Law Center. I can just see her thinking, “I’m not going to bite on this one.”
So Ralph was perfect as a colleague.
Rachael: Do you remember anything in particular where you collaborated with Ralph?
Professor Rodgers: Sort of all the time. Ralph knew water law, and that meant I didn’t have to know that. He also knew Indian law, which meant I didn’t have to know that either. The measure of the man that I admire him most for: Ralph wrote that article about Justice Rehnquist that is not complimentary. That always struck a note with me.
Rachael: Ralph had a little fire in his belly on that one. He got mad.
Professor Rodgers: That’s right, and you can see the destruction.
Rachael: Rehnquist and the Indian cases. Ralph went to look for some kind of unifying theory of all the cases that Rehnquist had written in the Supreme Court and found that the unifying theory was: Indians lose
Professor Rodgers: That’s right. That’s pretty good analysis.
Rachael: I was around as a student when he was writing that.
Professor Rodgers: By the way, I remember you as a student. It’s one fond memory I have of your work. You did a great study of the fines that were imposed by the Department of Ecology on enforcement. They didn’t collect anything. They negotiated and forgave and forgot.
The other part that I remember that you may not even remember. I know that was such a great study – do another one. You remember that? You did another one. Basically we updated that somewhere along the way, and it was the same thing. How you could empirically repeat the same scandal after you had a hypothesis to work with . . . .
Rachael: Ecology now puts out a quarterly report of the enforcement penalties they’ve levied. That non-enforcement study kind of got their goat. I think they got the message on that.
You saw the birth of all these major environmental laws, NEPA, Clean Air, Clean Water, ESA. These incredible laws have done some good in helping out the environment. But there sure are a lot of loopholes. What do you see as the problems? Part of it goes back to this question of enforcement. How can we make these laws work better now? We’re talking about laws that were enacted 40 years ago.
Professor Rodgers: That’s one of the mistakes. When you say 40 years and it hasn’t happened: that’s bad drafting. Bad conception. Poor definition, or whatever. I think more than that, what’s changed is the international-national economy. Let me give you a couple of examples.
We had a bottle and can initiative, drafted in 1970 drafted by . . . (I actually did some of the drafting).
Professor Rodgers: Recycling. Bring the bottles back. A guy up at Western had his students working on that. Well they killed that. We had that licked and the [opponents] came in at the last minute. They brought in PepsiCo, Coca-Cola, Weyerhauser – and big bucks. What they finally did, they walked into the supermarkets and they put up their stickers: “Don’t vote for this. The price of a 6-pack will go up $0.48” or something. They bury us at the last minute and they win the initiative vote 51 – 49.
We’ve always had doubts (or I’ve had doubts) that these giant conspiracy/corporations have a free speech right. Who says they have a free speech right? This isn’t free speech. This is collusion and conspiracy.
What we had then was a Noerr-Pennington Doctrine. So I file a petition with the Federal Trade Commission saying this is price fixing: when they said they’re going to raise the price of a six-pack $0.48. It’s obviously price-fixing. It’s like a collusive threat to raise the price – and you can’t do that. And remember, we had won the whole Clean Air Act in 1970 driven by the conspiracy of the big three: that the fix was in. They were condemned under the antitrust laws. Nixon had a great assistant AG at the time. Nixon immediately put this guy on the Chicago federal court to get him out of circulation.
Rachael: Not practicing.
Professor Rodgers: We got the Clean Air Act because of the smog conspiracy. So we were fighting this stuff, these corporate battles, very early; that’s what we were faced with at the time. So that’s a loss. If you look at what happens today, fast forward, that authority that they have to appear collusively is now universal.
They do every damn thing through a trade association. The biggest schemers of all are the trade associations. The Home Builders Association actually has a Supreme Court case or two to its credit. Are you kidding: with home builders, they actually hate squirrels? [Need to figure out which case he is referring to.] They’re the [self-interested] experts on environmental laws.
Collusion and then control of the dialogue: both of these issues to me are huge. And they’ve gone south with Citizens United which gives the mouthpiece to all of them. The collusion is everywhere, all you have to do is see it. But they’re blind to it. So that not only do they collude, the collusive groups will collude with each other. They have a combination of liars and fixers in their trade associations. So when I look back and ask, is the Clean Water Act poorly drafted? It wasn’t drafted to be invulnerable to that.
Another example is trade secrecy. Trade secrets are mentioned once in the Clean Water Act – and maybe twice. Once certainly, and what it says is you can’t make a secret of what you propose to throw in the water.
All the tech firms appear after the Clean Water Act. These are monsters of commerce with all their Stanford lawyers. No one takes environmental law anymore, they take trade secrecy law. You can laugh about it, but there it is. Everything is wrapped in trade secrets, wrapped in intellectual property. Intellectual property is wrapped into the international law. And now, for other reasons, wrapped into fracking. So here we are: we have some 15 articles on whether you have to disclose what’s going to kill you in fracking. Come on. Some of that got into the Safe Drinking Water Act by way of the Cheney Energy Policy Act. That’s another huge development that you cannot hold Muskie responsible for.
Rachael: We’ve been talking about why the federal environmental statues are not fully effective: deference to courts, statutory ambiguities, and so forth.
Professor Rodgers: So this is huge and it happened historically. For example for Ralph Johnson – when they marched the soldiers up and just exposed them to radiation, Ralph was in that class. They lost. Then the uranium miners: Navajo uranium miners actually knew what was happening to them. They said, “If we tell them, they will leave the mines.” Well, that’s committed to agency discretion.
Recently we’ve had three cases. One is at Parris Island. This is not just exposure to bad water. There were kids born with birth defects. The judge ruled that — well the only standard was don’t dump refuse — and that’s not clear enough to say it was useful for torts. That’s one.
Then there was 9/11. Right after 9/11, President Bush said everything is fine: breathe deeply.
Rachael: I think Christie Whitman said that.
Professor Rodgers: That was the Administration’s message. Now they’ve done all the toxicology. And they bring a lawsuit under the Federal Tort Claims Act. They lose: not clear enough what the rule was.
And then Katrina. This judge said, “Well, they violated the law, NEPA. And they killed 900 people. This is a tort claim that you can sue the U.S. for.” They reversed that decision in the fifth Circuit Court of Appeals.
For the Navajo uranium miners, they finally got them a “compensation system,” but it’s pretty corrupt that way.
Rachael: The courts are barring access. And then there is the problem of court deference.
You mentioned a few things that relate to the problem of the statutes of the environmental revolution not reaching their full potential: enforcement, corporate issues, private interests, trade secrets issues and influence, and antitrust – the collusion. Anything else that you would add to that as you look back? What can we do now if we had a Congress willing to fix these problems?
Professor Rodgers: The deference problem goes all the way back to the smelters. What they proposed originally (this is the leading case that says you have to defer to what the agency said), there was a copper smelter that invented this idea. At ASARCO Tacoma they said, “Tell you what we’ll do. If the weather turns bad and our plume is really going in the wrong direction, then we will shut down operations. We’ll have a ‘telemetering system’ to keep us up with which way the wind is blowing.” The courts bought it. [See Ecology website for map of smelter plume: https://fortress.wa.gov/ecy/smeltersearch/]
You should have heard the steelworkers on that one. The loss of the Unions is a huge loss; those people have credibility. They knew every scandal, every trick. At Tacoma, the company produced all the arsenic that was commercially sold. So they sent the high-arsenic ores there. One of the guys brought home the stuff for his daughter. “Looks pretty.”
And that’s where all the Chevron deference comes from. But of course they’re so corrupt. The agencies get deference – and then they just abuse that until we get right to the end of Scalia. We’re now talking very recent times. Suddenly the Court has to drop the deference; they decided to read the statute, the Clean Air Act, very carefully. And two cases happened.
In one, Scalia actually mis-remembers American Trucking, where they read the statute saying it doesn’t consider economics. But when he writes it up, “As we ruled numerous times . . . .” That was a heck of a problem. I don’t know how far it got buried in the reports, but they had to remove everything. That is an awful mistake.
In the second case, they had to read the Clean Air Act to forbid all the climate change stuff. And they were ready to do that, and the last deed they did was to enjoin the attack on the Obama climate plan.
Also at that time, Justice Thomas writes a decision that says, “The courts must be given freedom under Article II – they have this power to interpret laws.” Ironically, this is what environmentalists have been arguing for forty years. It was the same argument that David Bricklin and Mickey Gendler lost in the kill-all-the-deer case.
Rachael: Methow Valley Citizens Council v. Robinson.
Professor Rodgers: You see they have to rehabilitate this Article II power so they can drop the deference and read the Clean Air Act as forbidding this “intrusive” regulation.
Rachael: What were your thoughts when you learned that Antonin Scalia had died?
Professor Rodgers: I had already written on these cases, and volume 1 [Wm. H. Rodgers Jr., Environmental Law Treatise, Air and Water, Thomson West] had already been sent to the publisher. My thoughts were: Justice Scalia did a lot of damage. But he did only what he was expected to do when he was appointed.
Did you read the book, The 10 Worst Supreme Court Indian Law Decisions?
Rachael: By Walter Echo-Hawk? Yes.
Professor Rodgers: I’m adapting that for environmental law, but I’m already up to 40 worst decisions. The fact that they were able to stack the Supreme Court for 50 years. The pretext of John Roberts . . . it’s tough for the legal profession. The profession is supposed to fall in line – which is what they did in a corrupt way.
Scalia was asked, “What do you remember most about your career?” Scalia modestly says he invented textualism and originalism.
He eliminated legislative history. Scalia loved to go back to the Founding Fathers.
Rachael. The “Original Intentionalists.” Right.
Professor Rodgers: “We’re going to go back to the Founding Fathers. We won’t listen to what the legislature told us.” The hypocrisy of it. And then it’s multiplied many times when you get into the academics, who just do kissing-up on one version or another.
Rachael: Let me turn the question around. Who would you consider to be a great jurist on environmental issues?
Professor Rodgers: We’ve had a lot and where the hope rests is with the judges. I always believed in the judges – federal district judges in particular. They are what made environmental law.
Rachael: They are the most powerful people in the country.
Professor Rodgers: They really are, they are independent . . . we are really lucky, it’s like the last breath we have of real authority and everybody believes in them.
Rachael: Unlike the circuit courts or the Supreme Court, federal district judges don’t have to negotiate with a panel. Each judge can do what he or she decides best.
Professor Rodgers: So to me, keeping that alive is what is so crucial. So many times you can see how they haven’t been able to kill that flame. Even while they take every step to kill it.[Laughing] Trump has a list of acceptable candidates.
Rachael: I don’t know any of them.
Professor Rodgers: Neither do I. That’s a search I’d love to do: environmental opinions of these “acceptable” candidates.
It’s pretty amazing on the climate change stuff, on the “dead” doctrine – the Public Trust Doctrine. Have you heard about the Massachusetts case?
The big story, the insiders knew you would have to push ahead in the face of prevailing thinking: the Public Trust is “so flaky,” it’s just “silly to try.” The “real lifting” will be done over the Clean Air Act. This was the gist of the conference at Lewis and Clark about a year ago when Mims [Mary Wood] was brought to tears by Richard Lazarus and all the experts. They said, “you shouldn’t even think about this. It’s just childlike to think that the courts will seize upon the Public Trust Doctrine.”
And then to see the Great Theory . . . . The fix is so strong, and the Public Trust is the one they buried. ?? But then, up comes this flaky case . . . and then another. Oops, Washington State. Oops, that Oregon case. Oops, there’s one in Massachusetts. “We’ve got to stamp these out.”
Rachael: And there was a great decision by the Supreme Court in Pennsylvania on fracking and the Public Trust Doctrine. You’re anticipating my question: so here we are faced with climate change. It’s discouraging to look at a lifetime of work and to think what our kids and grandkids will be facing. What is the rule of law? Can it help us to make real change?
Professor Rodgers: Here’s the thing: you have to just keep trying. It’s like Brown v. Board of Education. What was the earlier one? In 1896?
Rachael: Plessy v. Ferguson
Professor Rodgers: You can’t quit. Look at the Indian cases. In my lifetime the Puyallups and all the others were fugitives, absolute fugitives. The Muckleshoots – their homes in the 1960s were hovels. These people had nothing. And what they finally did, when they built the 520 Bridge across Lake Washington they condemned a bunch of homes. They just basically went over there with trucks and took those homes over to the Muckleshoot Reservation.
When I look back — and the history is even deeper in the Celilo book — when you go back, the Tribes had nothing. They had constant warfare. Now they have the casinos. The Puyallup Tribe is the largest employer in Pierce County. Their shellfish are polluted like hell, but they may do something about it. To see that enormous change – and it’s not all positive — but they’re in a better position than they were 50 years ago.
Rachael: Your message ‘never give up’ is a message that we also heard from other Ralph Johnson Heroes, such as Russ Busch and Harriet Bullitt.
Professor Rodgers: I’m so glad you talked to Russ. When he was in law school he did a paper on the Elwha Dam as a public nuisance. That was all that existed in environmental law. I remember being with a fisheries biologist at Elwha, and seeing those incredible fish bumping into the wall. Russ did that – brought those dams down.
Rachael: That was a lifetime project for Russ.
Professor Rodgers: Right. And it is hard. All you can do is keep it going. I think of something like NEPA. The Supreme Court has deliberately and systematically destroyed it. But, that’s one that I really think can be revived again.
Rachael: On that point, have you read the new Columbia River Bi-Op decision by Judge Simon?
Professor Rodgers: No I haven’t, but I set that aside to read. That’s a great example.
Rachael: The judge puts a great store of faith in NEPA – he says ‘this is where you’re going to evaluate the real impacts and costs of what you are doing, including breaching the four lower Snake dams.’
Professor Rodgers: That’s a great point. You don’t celebrate the Great Moments, you always look ahead. And looking ahead, that’s how you should live your life.
Rachael: What do you see as the role of academics and your role as a law professor?
Professor Rodgers: That’s a great question, and I don’t want to be critical of academics today. I guess you just have to define that for yourself.
Academics, especially in the law, you’ve pointed out how problematical it is when you attack the courts and their authority because, on the one hand, the legal profession is supposed to uphold the authority of the legal system. That’s a hard thing for a lot of people.
Academics, for me, has been the greatest position – they actually pay you to work on these important issues. But, how many environmental programs have been destroyed at universities everywhere?
And certainly there was an attempt to do that with me. Can you imagine a worse conflict? When I came back to the University of Washington, it must have been 1979, and the name of the case is United States vs Washington. So I was hired by Washington, at the same time suing Washington. Actually, I went and got some legal opinions on whether I was able to continue representing the Puyallup Tribe. Cam Hall was one of the people I got an opinion from. The opinion said that I was required to continue. This was a real test of the administrators, when the letters came in saying “fire this guy.”
And I think it’s worse now than it was then. You can be more vulnerable: where you are in your life, with hungry children, you need a job. You talk about the changes in the role of academics, but that question about how that would affect your scholarship – that’s a great question. I guess I feel that when you look around, the bad part of it – I would call it more theoretical (not empirical) — there are some really good studies done — very empirical – in which they look at all the habitat conservation agreements actually look at them. Is it enforced?
Rachael: Yes, you actually did that study didn’t you?
Professor Rodgers: No, I didn’t, but others have. I sit on a committee in which we review the best articles of the year. We get a selection – they send the top 20 and we each pick the top 5. This is why you feel good. Oliver Houck has written an article on all the channels through Louisiana. In the title, the first words are “The Reckoning.” [Oliver Houck, The Reckoning: Oil and Gas Development in the Louisiana Coastal Plain, 28 Tulane Env’tal Law Journal 185 (2015)]
This case is actually brought by young kids, it’s tremendous. They sue a hundred and twenty oil companies. It’s very bold, and a tough situation. ?? – need citation.
Then J.B. Ruhl wrote one, responding to Richard Epstein – he’s the big property theorist at University of Chicago. [Eric Biber and J.B. Ruhl, The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, 65 Duke Law Journal 133 (2014)] They end up applauding Epstein for criticizing EPA’s NPDES permit program as very inefficient. And they end up saying: “Now to answer Epstein’s objections . . . what we really like are these very efficient industry-wide permits.” What are they called?
Rachael: General permits.
Professor Rodgers: General permits. That’s where all the action is. Anyone who knows anything knows that these type of permits are the biggest scam on the face of the Earth. ?? So to buy into that, to get peace with Epstein, you’re out of your mind. I guess his scholarship – it is what it is.
Rachael: There can be running conversations going on. Have you ever done one of those, when you’re conversing with another professor through your articles that you’re writing?
Dexter Lehtinen, the Everglades, and the Miccosukee Cases
Professor Rodgers: Yes, you do tend to gravitate. Let me tell you another story. Dick Stewart was the head of the lands division in Bush I – that’s the top environmental lawyer in the U.S. He’s sued by what is now my great pal, Dexter Lehtinen. He was the prosecutor of Noriega, a Republican, and married to a Cuban member of Congress.
Dexter’s nickname was “machine gun Lehtinen” because his picture was taken on the front page of the Miami Herald with a machine gun. What he told me was all the drug people said a machine gun isn’t going to work. The mob will not kill you. They will not kill a federal judge or a federal prosecutor because that brings out the damned Army against you. The ones who will kill you are guys who are looking for a job. And they will kill you with a sidearm, and therefore you should have a sidearm, because they will be shooting at you from three feet away and it may misfire.
When I was teaching at Miami I invited him to my class. He brought all the Everglades litigation. When I told my class that Dexter was coming, a female student said, “He could have that scar fixed if he wanted to.” Dexter had been in Vietnam, and had stepped on a mine or something. But he has this great scar [on this cheek]. Every man will want one.
Dexter is the one who brought the lawsuit by, or for, the National Park and the Wildlife Refuge, because he was the US attorney. He sued the state and the sugar people – he filed his nuisance action. This is where Stewart comes in. Dexter is the US attorney. But he can’t do this without getting approval of the Undersecretary or whatever Stewart’s title was. So what Dexter did was he filed the lawsuit on Friday afternoon and gets all the environmental groups to intervene. By the time Dick Stewart is back at his desk on Monday, the lawsuit has been filed. It’s everywhere. There are seven groups who have intervened. He’s then faced with, “Am I going to drop it?”
A little aside: when Bill Clinton was with Monica, at one of these interludes, he got a call from Fanjul who is one of the sugar guys in the Everglades, about relaxing the Everglades standards.
That litigation has gone on. Dexter nominated me to be a special master down there, which would have been anathema to the sugar people. The federal judge down there (like they did with Judge Boldt), the best federal judges get removed for a conflict of interest or something and that happened down there. Dexter led that litigation for many years. He was the Miccosukee Tribe’s lawyer.
Rachael: Yes, the saga of the Miccosukee cases. Are they done yet?
Professor Rodgers: No. There are about 60 cases involving the Everglades that Dexter was responsible for in one degree or another. He stepped down as the Miccosukee’s lawyer several years ago, there must have been an election in the Tribe and a change or something. But Dexter really did a lot down there. He’s a hero.
Who Holds the Judicial System Accountable? Role of Academics
Rachael – You are openly critical of Justice Scalia. In your book on Celilo you are also openly critical of some of the judges that have ruled over time. Those of us who do environmental advocacy find ourselves before judges. When we receive rulings that seem totally out of line, we’re stuck. We may find ourselves back again in front of those judges. Who is in a position (to the extent that anyone can) to hold judges accountable for their rulings?
Professor Rodgers: That’s a great question, and the answer is obvious. If academics don’t do it, who will? Talk about difficulty that the lawyers have. Obviously the bureaucracy can’t do it. Someone has to speak that language. Courage disappears from the system very quickly.
We worked on a student project, the Reopener. When they settled the Exxon Valdez oil spill disaster in 1991, Stewart was the AG doing it. The settlement said, “Come back in 15 years. We’ll have a reopener. If there is still damage up there, you can get up to $100 million to fix that damage.”
The Reopener was a perfect student project because it had a deadline: we had to ask by 2006. But the only ones who could ask were the US and State of Alaska. So the student project was to get them to ask. The amazing thing about it is that we got the Bush Administration to ask. They asked for $92 million. Bush! Very long story short, the Obama Administration just decided last September not to pursue this.
Someone needs to write that up. This is a great story. No courage at all. Priorities change, personnel changes. These are subtle things.
Rachael: Sometimes that works for you and sometimes that works against you.
Professor Rodgers: When we were pushing for it, you couldn’t say “no” in Alaska: a $100 million, who would leave that on the table? Senator Murkowski – Lisa herself -asked Exxon to voluntarily pay $100 million.
Rachael: Which would be a drop for Exxon.
Professor Rodgers: Then to have them push back, and undercut. That’s a great example that needs to be written up. And this is when they’re filing the bathroom case in North Carolina – come on. Because those people in Alaska really got destroyed. What happened is, they won this great victory – a $5 billion dollar judgment. Just tremendous. Then they divided it up. They knew who was going to get how much: $32,000 depending on your gear and experience you maybe get $30,000 out of the settlement. And then they could borrow on what they were going to get, which made it worse.
As the years go by, the Supreme Court destroys that whole thing. Basically they get nothing. So now not only are they in debt and completely impoverished, the investment they have in their own boat is about to go. If ever they needed a share of a few dollars, this reopener would just loom at you. Of course you would do that.
We made the demand for the reopener in 2006, and Bush met that deadline. Then in 2008, the Supreme Court takes away all the money. Now 2009, ’10, ‘11 — they really need it. And then the government walks away from it. Policies change.
But you’re right. Academics are so important there.
Here’s another example, though. With climate change you have all the big boys are bailing out, declaring bankruptcy.
Who did they bring in to fight to the death for Peabody Coal? A Harvard law professor. This is another thing that Covington & Burling has a role in. They’re all going into bankruptcy, basically fossil fuel is not what it used to be. And many of the environmental laws that we have – coal is a great example — they’re under all these obligations to clean up their wreckage. Many of these bonds are just bonds – personal pledges or whatever. They can be wiped out in bankruptcy
And then the big one that came recently, I think was just last year, Kerr-McGee. Kerr-McGee had some 200 Superfund sites. Remember they made a movie about Karen Silkwood in Oklahoma. Kerr-McGee and says we have a lot of good assets here. And then we have these billion-dollar liabilities at some 200 contaminated sites. Tell you what, we’re going to do. We’ll have a merger and assign these properties. Oil and gas properties go to Anadarko. All this other crap goes to Tronox.
Tronox goes into bankruptcy and blows up. They won’t clean up anything; they have huge, enormous liabilities. And the law firm? Covington & Burling, Dick Stewart’s old law firm. These are issues that we’re facing everywhere now: any legal way that these corporations can get out of their liabilities.
What made this case Covington & Burling: kept their hours. And somehow we got access to their hours. I didn’t know you could do that. In their filings it shows they bill 800 hours studying bankruptcy fraud.
Rachael: So they would know how to avoid it . . .
Professor Rodgers: The court, female, says, “This is bankruptcy fraud.” That’s huge. That’s what we’ll try to do in all these cases. You’re not going to be so lucky to have that.
Rachael: John Osborn worked on Silver Valley issues in Idaho, where Gulf Resources walked away, leaving a shell company that then declared bankruptcy. Corporate leadership had transferred assets out of the country, into real estate markets and evening buying a Scottish Castle. The company left behind unfunded pension funds and a massive environmental cleanup.
Professor Rodgers: Yes it’s just incredible. I saw the other day in the New York Times that the academic retirement fund TIAA CREF (they have my money) was buying land in the Amazon to be exploited. It’s like your worst nightmare. “Where is your money invested, you so-called environmentalist. Your money is plundering native people and wetlands in the Amazon.”
I want to mention a couple of other things. One thing about scholarship that I don’t see enough of. I sued the National Academy of Sciences (this is when they put me on their committees after I lost this case). I had run into the Academy with some of its stacked committees, and you have that. But less so I think in the Academies than a lot of other places. Where I was after them was that the original Clean Air Act says: we will suspend the requirements it the Academy says you could do that. So the Academy is actually incorporated into the substantive rules on auto emissions.
I knew a guy EPA so we sued the Academy: Lou Lombardo vs Academy. It was argued all day before the Watergate judge, John Sirica. That was a really important case. The Academy actually was set up by Abe Lincoln by executive order. The question has always been — are you the United States, or are you not? I lost the case so they are not the United States. But on the other hand, they are not, as they argued the case, just like the Rand Corporation.
Rachael: They’re not just a private think tank either.
Professor Rodgers: That’s the point. But that’s how they argued it: “we’re just another Rand Corporation.” The Academy is very ambiguous.
You learn a lot empirically. I also had the case where they built the nuclear power plant on a seismic fault. This was the North Anna nuclear generating station in Virginia. What they did there was hire Stone and Webster, Dames and Moore, the geotechnical consulting firm. As you walk down the excavation units 3 and 4, you can see this huge fault line. It was perfect. All the high school geology teachers would bring their classes to see this fault. It cuts right through.
The discovery process was just great. Dames and Moore brought in one of their old professors, he writes his report saying, “I’m glad I’m not living next to North Anna.” So I have all this stuff. Hunton & Williams is the law firm, which is Lewis Powell’s law firm, and they basically cover up the evidence of the fault. They got a very substantial fine. These hearings are pretty well set up – normally you can’t upset these guys. They submitted to the Board a geotechnical map of the site. So you have this one picture, and then you have an identical map with the North Anna fault on it.
Rachael: Oh, so the first map was scrubbed?
Professor Rodgers: They had scratched it. Then they gunited over it, but you could still see it in units 3 & 4. They quickly gunited that over so no one could physically see it. This was what the teachers were bringing all their geology classes to see. So this was a real catastrophe. The Board, you could just see the steam coming up. That was an incredible case.
Another story is the Blue Plains sewage treatment plant, which at the time was the largest in the world. It serves Washington DC, on the Potomac River. I remember the expert I had there. The guy came in with a handkerchief, reaches down, digs the dirt, sits up, “At least Louis Pasteur was clean.” ?? That again was a catastrophe.
They had all those combined sewer overflows (CSOs) into the river: 62 release points, or whatever it was, into the Potomac. Sixty-two of them, but the permit is only applied where they had the technology. So realistically, you had a permit to clean up CSOs 1 & 2, but 3 through 62 have no permit requirements at all. The legal argument I lost: at the time, secondary treatment was coming in. I argued that you have to at least apply secondary treatment to these raw sewage overflow points. But they said, “No, it was the best practical treatment.” It turned out to be no treatment at all. So much for the Clean Water Act forcing technology.
Rachael: So you put your time into the courtroom.
Professor Rodgers: Yeah and I wasn’t very good at it. But I learned and I met many people who knew a lot. There’s always an academic who really does know a lot. ??
Rachael: You were writing and maintaining a very large treatise, a four-volume West Company treatise on Environmental Law. Are you still doing that?
Professor Rodgers: Yes, it’s now West Thomsen, and I’m redoing it. They have the original volumes, and they perpetuate it. So I have pocket parts. They did keep that alive, and I do try to read as much as I can of all the recent developments.
Rachael: I wonder how do you ever keep that all in your head when there is just so much?
Professor Rodgers: Yes there is so much. I probably don’t, but if you keep reading the contemporary stuff, then I know something you don’t know. That’s where you probably feel better about it. Along with all the catastrophes, you can see “uh oh, they’re not going to like this one.” It’s like, how many times do you have to lose on the Columbia River?
Rachael: Or how many times do you have to win?
Professor Rodgers: Or maybe you have to keep winning until this generation of losers, who exercise complete control, moves on. So you always do look ahead.
Climate Change, Judges, Public Trust Doctrine
Rachael: So what do you think about the recent developments around the Public Trust Doctrine?
Professor Rodgers: Well I love what I see.
The sad part of the story, what really moved me, is a book by George Woodwell. He’s an ecologist at Woods Hole Research Institute. Woodwell testified with Jim Hansen at the 1988 hearings before Senator Wirth of Colorado. The next day, the New York Times reported that “climate change has arrived.”
Along comes Woodwell, who testified alongside Hansen, and he then writes, “Here’s how we felt. We had been fighting all these years. We knew this was happening, we really put it out there in 1988. We all knew we were right. The debate had already gone on for 20 years.”
And therefore when we look at it, when I look at it and my daughter Andrea looks at it, 1988 was the date when science said, “There’s no question.” 1988. No question.
Then you ask, “What about the next thirty years?” That’s the courts. That is the law responsible for that. All the years of fakery and flummery and all the rest of it. That’s significant. By 30 years ago, 1988, the courts had the science. Massachusetts vs EPA is a sham. They should be held accountable for what they’ve done. We shouldn’t have to wait.
I have a book which is a criticism of the Supreme Court about how the court always stands up for the wealthy and crushes the little guy. It is a long and convincing history that goes into child labor and all that. My thought is, do you really have to wait? Can it only be done a few generations from now? Where it’s very clear. It’s clear that this living generation has really disserved Society on climate change.
Rachael: And the future and the next Generations.
Professor Rodgers: And the false claim that no one knew. There was an article not too long ago in the New York Times in which they were reporting on one of these numerous events, included one of the standard climate deniers. I thought, this is really, really stretching it. It just shows how cowardly they are. They still feel, at this date, that they had to put in some b.s., “but not everyone believes this.” But talk about the propaganda that has seized us. This is the age of information? Really?
Vice President Dick Cheney under the Federal Advisory Committee Act – you can get minutes of the advisory committee. When Cheney came in, he just pulled together all the big power companies. This was his Energy Policy Review Commission. Obviously they are covered by the FACA law. This is the same scam. But then Scalia at the Supreme Court: “Well, this business of whether the commission was actually being ‘utilized’ or whatever they used as one of the words, ‘organized’ or ‘controlled’ by the government – it isn’t quite clear. Plus, the vice president has some bit of executive privilege.” Remember the argument over vice-presidential privilege? Privilege enough to start a war and other things. So they basically cover that up.
But it’s imperfect. Who wants to write an article about narrow interpretation if you entrench upon the vice president’s privilege. What is much more reckless and daring than that, which is what they did: start every war and tell every lie and then tell the world, “It’s not clear what that language says. Look at the dictionary. Could go either way.”
Rachael: One of the greatest works that you have created is your daughter, Andrea Rodgers, who has had an almost meteoric career, even though she seems to be just getting started. What do you think about her work?
Professor Rodgers: I’m proud of her. It’s phenomenal! The whole business of the Public Trust and the climate with Mary Wood, it’s very special because it was not plausible. And then it became more plausible when the plausible routes were just shut down. Now momentum seems to be building.
Rachael: That’s a great way to put it: I need to hand a judge a precedent to work off of.
Professor Rodgers: That’s the other thing. You never will win if you don’t ask. So, what are you going to do? Are they going to say no? Giving the system a try is important. When you go through the tribal stuff: not only were they disappointed once, twice, thrice, four times. You can never stop asking. In many ways if you just build the record, they say ‘no’ seven times but each time it gets harder to explain. So I’m really happy to see all these things that have happened. I’m really happy to see Oliver Houck write The Reckoning, on a case in which they lost. It’s just different ways to raise, pursue, and frame the question and hope for a better outcome.
National environmental laws: states and corporate influence
Rachael: As Janette Brimmer with Earthjustice likes to say, “I have a pretty good record when you consider that my opposing counsel, the Attorney General, gets all the deference from the court.” What do you see as the next steps for the Public Trust Doctrine and climate change?
Professor Rodgers: As you’re looking at the wreckage of the Clean Water Act, and I’m writing about it, it’s considered one of the great governmental achievements in the last century. But it comes up short on the two things that you are working on: nonpoint source pollution or agriculture pollution, and then water supply.
Rachael: Water rights.
Professor Rodgers: Yes, and the 401 certification process. We almost lost that through Miccosukee. The certification was the one thing that breathes, but it dies because it’s the state that’s supposed to do the breathing.
Rachael: We have a state that, under former Governor Christine Gregoire, pressed the use of the 401 certification process to link water quantity and quality. Now this state doesn’t want that authority anymore.
Professor Rodgers: You have a better sense of this than I, but the states — talks about being owned and taken over, undercut, modified, and crushed. So if your legal strategy in 1972 is to give the states as much room as you can, then they can pile on wherever they want to. You don’t come back 50 years later and say, “These states . . . .” They piled onto the states with law modification exercises. New enterprises are advising the states. Every time they bring one of their big conspiracy actions they get all the state AG’s to sign on as flunkies, their co-conspirators. Larry Tribe at Harvard: the last gasp of his professional life is to sign on to Peabody Coal to be the great lawyer who would lead to the destruction of the climate. So that’s Larry Tribe – a great academic who wrote the book on con law.
DDT, Safe Food Supply
Rachael: Anything else you’d like to share?
Professor Rodgers: The story of the DDT. The way we broke DDT was the Delaney Amendment, which says that if a chemical causes cancer in test animals it shall not be allowed in the food supply. This was Representative Delaney from New York City in 1958. The Northwest was involved with cranberry sauce for Thanksgiving: aminotriazole contaminating the cranberry sauce. They seized a lot of cranberry sauce just before Thanksgiving.
So we got that Delaney Amendment. You can imagine the leverage you now have. The Delaney Amendment says that . . . you can’t let it in the food. That was the killer blow on DDT.
They repealed the Delaney Amendment or modified it – by the way, backed by EDF and NRDC. It is an interesting story. But of course what they would achieve is that “we will weigh the costs and benefits.”
I write from the West Coast and EDF writes from the East Coast and we basically say “you gotta take DDT, get rid of it.” And they write back and say “Jesus, we’re not going to condemn the whole food supply in the US. It’s in all the milk, it’s in all the dairy products, it’s in all the eggs, it’s in all the grains.” So that’s their response: “Our hands are tied.” And that became the whole DDT thing.
So they were under real legal stress. We then had judges, Bazelon . . . it explains who does what. First of all, they do nothing. Leventhal says, “When the agency does nothing for so many months or years, may we take that as a no?” The answer, “Yes.” EDF, they had pulled together some great guys. Joe Hickey was the world’s leading expert on the peregrine falcon. Bob Risebrough who is the world’s leading expert on the brown pelican. They had all these medical and biological experts and they had already testified in Wisconsin. They were already all lined up and in then they came on the DDT case. We then got a ruling from Bazilon, Wright, and Leventhal – they were all with us.
Skelly Wright was the most hated federal judge, because he integrated the schools in Louisiana. So, send this judge to . . . wherever. Well, they re-assigned him to the DC Circuit [laughing]. He was condemned, and then he becomes a great judge.
Leventhal was really great. When I published that first book, I was at Georgetown. This was the Hornbook that came out in 1977. Leventhal called me up to come down and see him, which was special. Of course, I’m praising him in the book, but he liked it.
That was a moment in time.
The legal leverage we lost when we lost that. They named it the so-called “Food Quality Protection Act.” That’s the one when President Bill Clinton signed it he was surrounded by the children. “These young bodies are vulnerable to these toxic pesticides, that’s why we want to poison them more.” It’s a great scam, isn’t it? The ones who write about it best are Cockburn and Jeffrey St. Clair. St.Clair was the one who wrote up the repeal of Delaney. These are very strong writers – St. Clair tells it like it is and spares no contempt. He writes it up: EDF wants this to happen. NRDC wants this to happen. Some flaky kid up in Maine with a rag-tag environmental group says “I don’t think this is a good idea.”
Scalia, Administrative Law Professors
When Scalia got appointed to the Supreme Court, I had gone to New Orleans for a conference of the administrative law professors. That’s the crowd that’s more sympathetic to Scalia, he’s an administrative law “genius.” One of the things that my daughter would hear – Scalia had been nominated but not yet selected to the Supreme Court, so he was at that moment in time a rising celebrity. You can’t get any more important than this guy, and the academics there were all kissing up to Tony. So it was, “Tony said this.” “I agree with that.” “And Tony points out that this.” I’m in the background and this makes me puke, listening to all these grand figures of administrative law.
Peter Strauss at Columbia, former general counsel of the NRC, “Tony says this.” All these great figures from Harvard, “Tony says that. “Tony is really going to get it right.” So I came home and reported on how I saw it.
And it was such a surprise when he passed, “we’ve got to appoint another man like Tony.” No women. Well, we can find a woman like Tony.
Female Judges, Environmental Rulings
Political scientists look at these decisions in all kinds of ways. They’ll describe who wins if you have a giant Corporation up against a nobody citizen group, and who wins if you’re suing the U.S.. And one of their theories, and I see a lot of this, who’s going to be more environmental: male or female? There are a lot of fairly good, female, I call them “explosive” decisions. I haven’t done a search, it’s just an impressionistic thing.
The two leading cases on waste and pollution, one I mentioned on the bankruptcy. But they also had a case involving Lockheed. Lockheed had been paid some five times over by the Defense Department for polluting this, that and the other thing. Lookheed sued the federal government for their cleanup costs, which had already been paid. What nerve of this. The court says, “What nerve of this?” She’s right there.
So maybe we have a breakout moment on the Columbia River. Keep trying, people.
Rachael: Andrea has certainly found a judge that struck a nerve: Judge Hill in King County. She’s not afraid to say it.
Professor Rodgers: It’s just remarkable – she was the luck of the draw. She could have been talked out of it. “Why waste your time?” “Come together with our better supported group.” That’s the other thing – you must see it all the time – now they want a collaborative arrangement. That’s why I think some of the history helps – like the people who are collaborating with ASARCO.
ASARCO, Arsenic, Tacoma and Puget Sound
The best example, we put this in the next book. There is a leaflet the mineworkers put out. It said, we’re in dispute over some mining enterprises. And they say, “We have a rifle for you to be picked up at the smelter. Our vision of the future is 10,000 well-armed miners.” That was the venomous populism; that was their working relationship.
And I do think the loss of the labor unions is sad, in so many ways. My experience with them at ASARCO: they hated the company. They knew the reality, they knew who was paying, but they also knew what cheating, lying frauds they were. And they saw it daily.
Already we were fielding all the international stuff – they were bringing into Tacoma the arsenic. Tacoma produced 100% of the arsenic trioxide, which is a pesticide. So what they wanted was the high arsenical ores which were somewhere in Chile. “Send us the arsenic.” And that wasn’t revealed until sometime later during the cases that were brought.
Rachael: I’m sure many of the secrets of ASARCO have never come to light.
Professor Rodgers: We should be reading a lot of law review articles on issues like the Coeur d’Alene mining district. It’s like the trade secrets stuff. They can do a law review article and cite the section on pollution is not a trade secret. But I haven’t seen a lot of that. The law schools are hurting, “Enrollment is down, what can we do to keep enrollment up?” And, business is always saying, “You need to listen more to us.” Who’s teaching climate change? Some folks started teaching in the days when denial was an acceptable policy.
Rachael: Over at Gonzaga I don’t think students are getting much exposure to climate change. I teach it as part of water law . . .
Professor Rodgers: I can’t even follow it at one law school, but it must be a pain. At our law school, we have one guy who left 25 million dollars – worked at the VA as a lawyer. So they’ll probably start a program in Trade Secrets.
Career highlights, on publishing
The highlights of my career? They don’t exist. I’m working on the new stuff. The whole idea of looking back and going fishing, it isn’t going to work for me.
I’m lucky to have this opportunity to keep publishing, but it gets harder. It’s very expensive. They don’t want me wasting my time on certain issues. They have to make it economically valuable for them. I’m lucky they haven’t asked someone else to do this. It’s funny, the contract with West would say “they won’t publish any competitive works,” which of course is all they publish. Every work is competitive. But the editors are good to work with.