Oil contamination in Ecuador. Photo by Lawrence Hurley

Today it was the turn of the U.S. Court of Appeals for the District of Columbia Circuit to host the traveling roadshow known as Chevron Corp.’s fight to avoid paying up to $18 billion dollars for environmental damage in Ecuador.

The case has famously gone on for almost two decades now. Last year, a judge in Ecuador ruled that Chevron was liable for up to $18 billion for contamination caused by Texaco Petroleum Corp. Chevron acquired Texaco in 2001 (see my 2011 Greenwire series on the litigation for the full background). Even before that judgment came down, Chevron made it clear that it thought the claims against it were fraudulent and to that end commenced a federal racketeering case against the plaintiffs and their American lawyers. The oil giant’s attorneys at Gibson, Dunn & Crutcher and their adversaries at Patton Boggs have been in and out of courts all over the country fighting over discovery in both the racketeering case and other actions both sides have brought in relation to the litigation in Ecuador.

That’s what bought Theodore Boutrous of Gibson Dunn and James Tyrrell of Patton Boggs before a three-judge panel of the D.C. Circuit today, a development that prompted Chief Judge David Sentelle to remark that the case “has been argued in more courts than any other.”

The argument provided an insight into the frosty relations between the parties in what has become notoriously fractious litigation. Sentelle was keen to steer clear of the colorful rhetoric both sides have been known to use. “We have heard the vitriol that both sides want to spill on each other,” he noted at one point.

Even more revealing, in the hall outside just after the argument, Tyrrell was talking to me when Boutrous walked past. Boutrous greeted me but didn’t say a word to Tyrrell, who remarked that it’s the only case he’s ever worked on in which the attorneys don’t speak to each other.

As for the meat of today’s argument, here’s what I reported in Greenwire:

A federal appeals court today seemed inclined to rule that a lower court judge acted too hastily in allowing Chevron Corp. access to documents prepared by a consulting firm working for Ecuadorean plaintiffs in a high-profile case that has dragged on for almost 20 years.

The oil giant wants documents from the Weinberg Group, a scientific consulting firm that the plaintiffs had hired to prepare a report on the alleged environmental damages in the eastern part of Ecuador.

Blackbeard, before his head was chopped off

The question, Justice Stephen Breyer said, is not whether Blackbeard himself could be sued, but whether the holding company that oversaw the whole operation, Pirates, Incorporated, was liable for various nefarious acts on the high seas.

Once again, Breyer had unleashed one of his famous hypothetical question (and, no, in raising pirate-related corporate entities, he wasn’t referring to either Johnny Depp or a now sadly departed local hostelry). He brought up the issue during today’s argument in Kiobel v. Shell over whether oil company Royal Dutch Shell PLC (and other corporations) could be held liable in U.S. courts for aiding and abetting human rights abuses overseas.

The statute under the microscope is the Alien Tort Statute, which Congress enacted in 1789 at a time when piracy was a major issue, hence Breyer’s question to Kathleen Sullivan, Shell’s attorney:

Do you think in the 18th century if they’d brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn’t me; it’s the corporation — do you think that they would have then said: Oh, I see, it’s a corporation.Good-bye. Go home.

Sullivan wasn’t budging:

You could seize the ship with which the piracy was committed, as you could later slave trading ships. But you could not seize another ship, and you could not seize the assets of the corporation.

If only Blackbeard had such lawyers, perhaps he could have avoided his ultimate fate at the hands of the Royal Navy: He was shot at least five times and stabbed 20 times before his head was hacked off, according to his Wikipedia entry.

The first was by Judge William Fletcher of the 9th U.S. Circuit Court of Appeals in a decision ordering the U.S. Forest Service to carry out a new environmental study on the impact of a forest management plan. Fletcher, like me, appears to have had it up to here with bureaucratic gobbledygook. He used a series of six footnotes to tear apart some of the agency’s prose. Among his complaints: the Forest Service referred to Resource Conservation Areas when it really meant Riparian Conservation Areas1.

Fletcher concluded with this footnote:

We remind the Forest Service: “Environmental impact statements shall be written in plain language . . . so that decisionmakers and the public can readily understand them. Agencies should employ writers of clear prose or editors to write, review, or edit statements.”

Take that, Forest Service!

The second footnote that got my attention was quite different in tone. In a decision invalidating a Bush administration-era rule concerning the Endangered Species Act, U.S. District Judge Gladys Kessler apologized for taking so long to issue her ruling (more than five years), showing a humility that federal judges aren’t often known for:

The court is well aware of how old plaintiffs’ motion is, and deeply regrets the delay in deciding it. Excuses always ring hollow and particularly so when given by federal judges. I hope the parties will accept the court’s apologies.

Kudos to both judges for speaking their minds.

1 I’d like to use this footnote to point out that it’s not just federal agencies (and reporters) that can get acronyms wrong. Take, for example, Judge Charles Wilson of the 11th U.S. Circuit Court of Appeals, who in this ruling refers to the National Environmental Protection Act, when I think he meant the National Environmental Policy Act.

It’s now the subject of a feature I’ve written for California Lawyer magazine that is out this month. You can read it here:

Prometheus

Prometheus is best known for being the titan who, against the wishes of Zeus, gave mankind the gift of fire. Prometheus is also the name of a company that comes up with new diagnostic and therapeutic products. Today, the Supreme Court heard arguments in a patent dispute between Prometheus (the company) and Mayo Collaborative Services about whether one of its products can be patented.

The echoes of ancient Greek mythology in the case name may have inspired Chief Justice John G. Roberts Jr. In one of his hypothetical questions to the Obama administration’s lawyer about what processes can be patented, he referred back to one of man’s earliest “discoveries”:

So I have a great idea. You take wood, you put it on a grate, you light it, and you get heat. That .. recites a series of acts performed in the physical world that transforms the subject of the process, the wood, to achieve a useful result, which is heat. So I can get a patent for that?

The answer is no. “It’s not novel, and it’s obvious,” said Solicitor General Donald Verrilli.

Of course, Prometheus (the titan) didn’t get a patent for “discovering” fire because he didn’t discover it. He simply grabbed some fire from the flaming chariot of Helios, the sun god, and gave it to mankind when Zeus wasn’t looking.

Zeus wasn’t best pleased. Prometheus’ punishment was to be chained to a rock for eternity, where a vulture would peck out his liver every day in an endless cycle of pain.

Prometheus could not immediately be reached for comment.

Some are gimmes, as they say in golf, such as Question 28: What is the name of the President of the United States now? Others might require a little extra work for those who aren’t political and/or legal junkies, like Question 7: How many amendments does the Constitution have?

For me, as someone who has worked as a legal reporter in the U.S. since 2002 (although I have no formal legal training), the potential traps arise in various questions about the Constitution. Perhaps most problematic are the open-ended questions. If asked “what does the Constitution do?” (Question 2) by someone in the street, my most likely answer would be: “where do I start?” That isn’t what U.S. Citizenship and Immigration Services wants to hear, obviously. Instead, it’s the simple phrase “defines the government,” which kind of makes sense. I have memorized it, just in case.

Here are some other questions that threw me a little:

Question 35: What does the President’s Cabinet do?

My answer to this would be that the cabinet members run government departments. But what CIS wants to here is “advises the president,” which is correct but doesn’t convey all that cabinet members do.

Question 48: There are four amendments to the Constitution about who can vote. Describe one of them.

What I find puzzling here is that the obvious answers would be “women can vote” and “African-Americans can vote” but these are not among the official answers. Instead, there’s “any citizen can vote. (Women and men can vote.)” or “a male citizen of any race (can vote).” Both seem strangely phrased to me.

Question 49: What is one responsibility that is only for United States citizens?

The correct answers are serving on a jury and voting, but the use of the word “responsibility” is what baffles me here, mostly in relation to voting. As I understand it, people are under no obligation to vote. It is a right to vote (Question 50 deals with that), sure, but is it a responsibility?

Question 51: What are two rights of everyone living in the United States?

Now this is the one I found most confusing. Before looking at the answers, my response, without thinking, as “the right to due process.” But that isn’t among the list of answers, which — in full, is:

freedom of expression
freedom of speech
freedom of assembly
freedom to petition the government
freedom of worship
the right to bear arms

Where is due process? Where is the Fourth Amendment right to be free of “unreasonable searches and seizures?” Weird.

And, finally, Question 55: What are two ways that Americans can participate in their democracy?

What struck me here is that, in a post-Citizens United age in which, more than ever, political speech = money, none of the possible answers involve “donating to a candidate and/or political party,” which seems an odd omission. Especially when they include “write to a newspaper” among the possible answers. Like that’s going to help.

In his remarks, Watford focused mainly on criminal cases, showing an enthusiasm for that subject area that you might expect from a former federal prosecutor.

Here are some excerpts:

Daily Journal: How will the arrival of Justice Sonia Sotomayor as a replacement for Justice David H. Souter change the dynamic of the court?

Watford: I have reviewed a number of her criminal opinions and I would tend to agree with the commentators who said that she may well turn out to be more conservative than Justice Souter on criminal law issues.

(snip)

Daily Journal: In the criminal law area, the court has granted two petitions to explore how to define “honest services” fraud as it applies to public officials and private figures. The private figure in question is media tycoon Conrad Black. Weyhrauch v. U.S., 08-1196 and Black v U.S., 08-876.

Watford: I certainly have an interest in it. There’s been a lot of uncertainty about the scope of what crimes can be prosecuted under the honest services statute. I don’t think I ever even had a case where that statute came up. But I know the lower courts have been in disarray on this issue and hopefully the Supreme Court will provide some definitive guidance. It had been well established in the context of public officials who had taken bribes. I think the Conrad Black case is interesting because it’s in a purely private context. It’s certainly a timely opportunity for the court to step in.

(snip)

Daily Journal: Prosecutorial abuse is the subject up for discussion in Pottawattamie County v. McGhee, 08-1065. The question is whether prosecutors have absolute immunity for conduct that occurred outside the courtroom. In this instance, a prosecutor obtained false testimony during the investigation and then presented it at trial.

Watford: The entire conviction was based on this coerced testimony. It’s very clear that the prosecutors are absolutely immune for anything they did in court. But there’s a big question about what about everything that occurs before you get into the courtroom, which is the key twist in this case. I find the issue fascinating as a former prosecutor.

Retired Supreme Court Justice John Paul Stevens highlights a high-profile Endangered Species Act case about a tiny fish that delayed a reservoir project in his new memoir.

The case in question is Tennessee Valley Authority v. Hill, a 1978 ruling in which the court ruled that a project to build the Tellico Dam on the Little Tennessee River had to be halted because it would likely lead to the extinction of the snail darter.

The opinion was not one of Stevens’ own from his 35-year tenure on the court, which came to an end when he retired in 2010. But it is one of Stevens’ favorites from the pen of Warren Burger, who served as chief justice from 1969 to 1984.

 

The mention of the case is in keeping with the theme of the book, “Five Chiefs,” in which Stevens focuses on the five chief justices he either worked alongside or came into contact during his long legal career.