Environmental Change We Can Believe In?
May 15, 2009 6:07 PM   Subscribe

Today was a troubling day for environmentalists. First, the Obama administration announced its decision to nominate a Superfund polluter lawyer to run the DOJ Environment Division, sparking serious concern among environmentalists, and then its was announced that the EPA has confirmed 42 of 48 permits for mountaintop removal in the coal country of Appalachia, sparking criticism from environmental groups.
posted by ornate insect (85 comments total) 5 users marked this as a favorite

 
You know, I'm willing to put up with some BS to get jam. But we also need to get the jam.
posted by DU at 6:09 PM on May 15, 2009 [2 favorites]


I am this close to taking the Obama sticker off my car.
posted by Faint of Butt at 6:16 PM on May 15, 2009 [5 favorites]


A "superfund polluter lawyer?" A lawyer who polluted, creating a superfund site? Of course not. A lawyer who has represented clients in superfund cases. What on Earth is wrong with nominating someone to run the DOJ Environment Division who has extensive experience litigating superfund cases?
posted by The World Famous at 6:17 PM on May 15, 2009 [2 favorites]


The World Famous--

Maybe Ignacia S. Moreno (more on her bio here) is the best person for the job. I don't really know enough to have a strong opinion; but if environmental groups are concerned that she represented GE during their battle against Superfund, then I want to know more. Believe me when I say I hope that you are right, and this is much ado about nothing. We shall see.
posted by ornate insect at 6:24 PM on May 15, 2009 [1 favorite]


Environmental groups don't like her because they wish that one of their own was the nominee. The fact is, an attorney who has represented clients in superfund litigation extensively is uniquely and extremely qualified for the job for which she was nominated. Furthermore, an attorney's job is advocacy for her client. By these groups' logic, the only proper nominee would be either a) someone who has no experience in environmental litigation or b) someone who was already a DOJ or EPA environmental lawyer and who has no non-government environmental litigation experience.
posted by The World Famous at 6:31 PM on May 15, 2009 [3 favorites]


The World Famous: "What on Earth is wrong with nominating someone to run the DOJ Environment Division who has extensive experience litigating superfund cases?"

"What is wrong with nominating this fox to run the Henhouse Division, when he has extensive experience with henhouse security?"
posted by mullingitover at 6:34 PM on May 15, 2009 [8 favorites]


Yeah, the lawyer is not the fox. She's the fox' former lawyer.
posted by The World Famous at 6:37 PM on May 15, 2009 [1 favorite]


Think of it this way: Would you object to the nomination of a former public defender to a position in the Criminal Division of DOJ? Would that be the "fox [running] the Henhouse Division?" Is a criminal defense lawyer the same thing as a criminal?
posted by The World Famous at 6:38 PM on May 15, 2009


TWF: well you've given your opinion that the first news item in my diary is nothing for environmentalists to be concerned about (although calling GE's fight to have Superfund declared unconstitutional merely "superfund litigation" seems a bit of an understatement), but what about the second news item?
posted by ornate insect at 6:38 PM on May 15, 2009


what about the second news item?

It's troubling. I don't know enough about the relevant regs to have a nuanced opinion about whether they were properly applied, though.
posted by The World Famous at 6:43 PM on May 15, 2009


...saying EPA was “expressing serious concerns about the need to reduce the potential harmful impacts on water quality.”

Potential? What color does the water have to run before we move on to admitting the actual harmful effects of filling valley streams full of mountaintop slag? *Rrrrrr.*
posted by Devils Rancher at 6:53 PM on May 15, 2009 [1 favorite]


OTOH - it's hard to imagine the fallout if those mountains were halted - where will the energy come from in the very short term, like, in the term of his Presidency? We hope they are working on longer term solutions so 8 years from now not another 40 mountains will be blow up. Perhaps there are some side deals being made..
posted by stbalbach at 7:12 PM on May 15, 2009


Faint of Butt: "I am this close to taking the Obama sticker off my car."

If that's the case, you might as well go ahead now, because this nothing.. politics is the art of compromise. It can take generations to enact real change, in small seemingly insignificant steps.
posted by stbalbach at 7:15 PM on May 15, 2009 [1 favorite]


Faint of Butt: "I am this close to taking the Obama sticker off my car."

It's a dispiriting moment. But you get over it.
posted by Joe Beese at 7:16 PM on May 15, 2009


although calling GE's fight to have Superfund declared unconstitutional merely "superfund litigation" seems a bit of an understatement

Yeah about that, the arguments were that there needed to be more due process and that the government's issuing of a cleanup order amounted to taking private land. How you get from that to "declaring Superfund unconstitutional" is a bit of a stretch.
posted by Big_B at 7:22 PM on May 15, 2009


Big_b, here's the text from the FindLaw link I linked to upthread:

After eight years of fighting to prove that parts of the Superfund law are unconstitutional, General Electric Co. once again has failed to lay a glove on the statute.

The unilateral administrative order process the Environmental Protection Agency applies to Section 106 of the Comprehensive Environmental Response, Compensation and Liability Act does not constitute an unfair property taking in violation of the due-process clause of the U.S. Constitution, U.S. District Judge John D. Bates ruled.

The Washington, D.C., federal court case has been long and contentious. The one remaining issue was the Section 106 process.

General Electric filed the constitutional challenge in 2000 in the U.S. District Court for the District of Columbia related to three sites where GE faces hazardous-waste cleanup actions. The sites include a 40-mile stretch of New York's Hudson River, where it is spending $600 million for dredging to remove 1.3 million pounds of PCBs.

However, rather than contest any particular EPA order concerning those sites, GE's lawsuit involved a facial challenge to CERCLA on the ground the statute generally deprives parties like GE of their constitutional due-process rights and adequate procedural safeguards.


Perhaps your argument should be with FindLaw, as I am neither lawyer nor an expert on this matter.
posted by ornate insect at 7:34 PM on May 15, 2009


"I am this close to taking the Obama sticker off my car."

If that's the case, you might as well go ahead now, because this nothing.. politics is the art of compromise. It can take generations to enact real change, in small seemingly insignificant steps.


Mine is off, as of the military tribunal thing yesterday.

Wtf, "politics is the art of compromise??" What kind of lowest-common-denominator crap rationale is that? Obama doesn't need to compromise- he has sky-high approval ratings, 60 dmeocrats in congress, huge advantage in the house, the Republican party is finished, and yet he just can't seem to resist the most craven path to the middle on every single goddamn thing. I see no evidence of any sort of principle on anything, just pure politics, and not even very good politics. Bush was the worst president in history, and remains among the least popular. he destroyed his party. Outside of the Mormon belt and the Deep South, it is as dead as Vaudville. He is bending over backwards at every opportunity to appease people, and there is no one even there to appease. Bill Clinton never made compromises like this until he was forced into it by the most hostile, unprincipled Republican congress in history.

Based on what's happened so far, I would vote for Al Gore, Hillary Clinton, or just about anyone else who doesn't "worship an awesome God in the blue states" in a 2012 democratic primary.

(I was a 2008 Obama volunteer)

posted by drjimmy11 at 7:53 PM on May 15, 2009 [10 favorites]


It can take generations to enact real change, in small seemingly insignificant steps.

Oh, he's enacting real change. By abetting and continuing Bush's tearing up of the Constitution, he's helping one of two things to happen:

a) the loss of the ideals our country was founded on and a descent into semi-facism
or
b) an eventual rebellion by liberals and civil libertarians that will irreparably fracture the democratic party and return Bush and friends to power.
posted by drjimmy11 at 7:56 PM on May 15, 2009 [1 favorite]


Summary of those two comments:

The Republican party at the national level is finished permanently. The only thing that could possibly bring it back is a schism in the democratic party between liberals and conservatives (I can't really call Obama a moderate in good conscience).

If Obama was working to intentionally create this schism, he couldn't possibly do any better than he is doing now,
posted by drjimmy11 at 7:58 PM on May 15, 2009


Based on what's happened so far, I would vote for Al Gore, Hillary Clinton, or just about anyone else who doesn't "worship an awesome God in the blue states" in a 2012 democratic primary.

And this is an example of why the Republicans will probably take back Congress in 2010, and then the White House in 2012. The Left in America is usually more concerned with arguing ideology, the Right, with winning elections. When the Right does get tangled up in arguing ideology, then it loses elections, like last year. But the Right can pretty much depend on the Left to splinter apart, once whoever they elected has to actually govern in response to reality, and not according to ideological purity.

And of course someone's going to come back with how they would prefer to have a Republican in the White House than someone who betrays their ideals. Which is again why te Republicans will probably win in 2012.
posted by happyroach at 8:03 PM on May 15, 2009 [4 favorites]


The problem with government is that it is run by people.
posted by kldickson at 8:05 PM on May 15, 2009 [2 favorites]


happyroach, as I said, let's not give a vote to Republicans. I'm a liberal; I don't want my back against the wall.

Anyway, the Democratic Party has to grow some balls.
posted by kldickson at 8:08 PM on May 15, 2009 [1 favorite]


I was trying to point out the baby with the bathwater issue. The parts they were trying to find unconstitutional are small parts IMO, but it's a semantics issue I guess. I am not a lawyer but I do work in the environmental industry and have some experience with CERCLA.
posted by Big_B at 8:12 PM on May 15, 2009


Jeez, people, I took my Obama sticker off my car the day after the election. After he's elected, you're not a supporter, you're a constituent.

Plus, if you leave it on there too long, you end up with a "bumper sticker tan" and lower your car's resale value.
posted by dirigibleman at 8:16 PM on May 15, 2009 [1 favorite]


Rather than turning this thread into a referendum on Obama, I have some specific questions:

1) is it likely environmental groups will rally against the nomination of Ignacia S. Moreno for Assistant Attorney General, Environment and Natural Resources Division, Department of Justice?

2) if the answer to my first question is yes, might they be able to derail her nomination (seems more likely than it would have been under Bush)?

3) if the answer to my first question is no, is it b/c her work for GE, etc. does not in fact compromise her potential for this position (an argument made up-thread)?

4) is it likely environmental groups will agree w/the Sierra Club and strongly come out against the mountaintop removal decision?

5) is it possible the mountaintop removal decision is beyond Obama's control?

6) a larger question: presumably the environmental movement, and particularly a figure like Al Gore, could create PR problems for Obama if Obama turns out to be less green than was anticipated. Am I the only one surprised that this particular area of issues (i.e. the environment) is a problem area, or is this (the news items in the FPP) just a fluke that says nothing about Obama's environmental policies?

7) does anyone with specific information related to the news items in the FPP have anything to contribute?
posted by ornate insect at 8:22 PM on May 15, 2009


The parts they were trying to find unconstitutional are small parts IMO

Without cleanup, there's no point to CERCLA. And if liability for cleanup is a taking, then the constitution requires that the US Government pay for it, even though it was GE who did the polluting. Liability for cleanup is not a small thing. It's the whole thing. especially now that Superfund is going broke.

When you say you work in an 'environmental industry' do you mean you work in an 'industry that profits from destroying the environment'? Because that's what your arguments sound like.
posted by anotherpanacea at 9:00 PM on May 15, 2009 [3 favorites]


I'm not sure what to make of all this, ornate insect. And I don't have a whole lot to offer. I've also heard that the cap and trade carbon legislation has been all but neutered as it's made its way through the house, with something like 75 percent of the pollution credits being given away for nothing to various industries (which doesn't create a whole lot of "market incentive" to keep carbon emissions low). Worse still, I think the reduction goals have been significantly scaled back, which is also disappointing. But that's not, strictly speaking, Obama's doing. Henry Waxman was the Democrat shepherding that legislation through the process. It's still an improvement over nothing (which is which is what we've got now), but not nearly what's needed.

The common pattern in a lot of these recent policy shifts seems to be a desire to minimize negative economic impacts. It may be that Obama's considering capitulating to the polluters in the short term to try to avoid negative economic consequences, given the tremendous stress the economy's already under. There does seem to be a sort of economic tipping point we may be getting dangerously near. But I don't know enough of the details.

Would denying the strip mining permits result in significant job losses in Virginia? If so, then I can imagine President Obama not wanting to take any steps that might worsen the situation in that state, a state that's seen more than its share of economic hardship in recent history, and one that's probably been disproportionately feeling the pain of the recession/depression, too.

As for Moreno's appointment, I don't know what it signals. It may be a little unfair to assume he's got a bad stance on environmental issues only on the basis of a sampling of his legal practice, as some suggested up-thread. But it makes me nervous, too. It might be more evidence that Obama's considering putting his environmental agenda on the back-burner for a while out of a desire to minimize further job losses and other negative economic impacts, but that's sheer speculation. I haven't been following this appointment, so I've got nothing. Still, my hunch is if he is capitulating, it's out of short-term expediency.

But then, on the other hand, maybe somebody just finally slipped one of those mind-controlling, parasitic flies that AIPAC, Big Oil, the CIA, Goldman Sachs, GE and the Rand Corporation use to control everybody else in Washington into his ear. Only time will tell.
posted by saulgoodman at 9:16 PM on May 15, 2009


may be a little unfair to assume he's

I believe Moreno is a she.

Also, no offense, but the problem w/metafilter sometimes is we're not getting a lot of input from people who might actually know about the particular relevant facts and players involved in these issues.
posted by ornate insect at 9:35 PM on May 15, 2009


"We're tearing up the Appalachian Mountains because of our dependence on fossil fuels."
- Barack Obama

Unfortunately, Obama didn't bother to let us know that what he said during the campaign wasn't a criticism, so much as a policy statement.

In all honesty, though... it's very early into Obama's administration, and he doesn't have all of his people -- and his people's people -- in place yet, so its hard to say exactly how much of this decision is essentially legacy.
posted by markkraft at 9:36 PM on May 15, 2009


Based on what's happened so far, I would vote for Al Gore, Hillary Clinton, or just about anyone else who doesn't "worship an awesome God in the blue states" in a 2012 democratic primary.

Al Gore, accepting the Nobel Prize: "I have a purpose here today. It is a purpose I have tried to serve for many years. I have prayed that God would show me a way to accomplish it."
posted by l33tpolicywonk at 9:51 PM on May 15, 2009


I represented pimps because that was my job, not because I'm in favor of hooking.
posted by 1adam12 at 10:15 PM on May 15, 2009


Who needs mountaintops? You won't be able to see them anyway, with all the smog.
posted by hermitosis at 10:23 PM on May 15, 2009


Wtf, "politics is the art of compromise??" What kind of lowest-common-denominator crap rationale is that? Obama doesn't need to compromise- he has sky-high approval ratings, 60 dmeocrats in congress, huge advantage in the house, the Republican party is finished, and yet he just can't seem to resist the most craven path to the middle on every single goddamn thing. I see no evidence of any sort of principle on anything, just pure politics, and not even very good politics.

Dude, Obama is a PRAGMATIST in fact he's looking for Ruthless Pragmatist!!!11//1. Apparently all that "Hope" and "Change" B.S. was just the most ruthlessly pragmatic way to get elected.
posted by delmoi at 10:30 PM on May 15, 2009


Anyway, who knows if Obama is even involved with this stuff, it may not even be on the radar of the upper level administration. On the other hand I'm obviously pretty disappointed with some of the other crap.
posted by delmoi at 10:31 PM on May 15, 2009


Here's an article from today's NYT entitled "Dredging of Pollutants Begins in Hudson" that's about the superfund cleanup (beginning now) of the Hudson River that the EPA is holding GE responsible for.

Ironically, the article does not appear to mention Ignacia Moreno at all, even though it it would seem she worked as legal counsel for GE as the company fought (for eight years) to not have to do this cleanup at all.

The relevant quotes from this article are thus:

Even as it embarks on the cleanup, G.E. has a lawsuit challenging the constitutionality of the Superfund law working its way through federal court. (The company is a responsible party in 52 active Superfund sites across the country, according to the Environmental Protection Agency.)

[...]

Edward O. Sullivan, who from 1987 to 1995 wrestled with General Electric lawyers and scientists as New York State’s deputy commissioner of environmental conservation and ran the state’s hazardous-waste cleanup program, said that by pursuing the court challenge to the Superfund law and reserving the right to reject the second phase of the cleanup, General Electric had constructed two potential “escape hatches.”

“Clearly, G.E. has the capability to do it right,” said Mr. Sullivan, who now runs the private group Scenic Hudson and witnessed the start of the dredging on Friday. “But the question remains, is the commitment there? So far, the company has been masterful at instigating delay.”

posted by ornate insect at 10:52 PM on May 15, 2009


Ok, read the story. She was already at EPA before. Then she switched to the private sector. Now she's back.

Obama's a lawyer, folks. He's looking for the best lawyer to do the job.

Christ, do we always, always have to try to eat our own? WTF, does Rove have a microchip in your brain? Instead of attacking the GOP and polluters, you attack Obama. Instead of attacking Dick-fucking-Cheney, you attack our strong ally, Nancy Pelosi.

All of this in the first fucking 120 days. What did you think Obama was going to do, install the People's Republic? Jesus, its getting like Free Republic in here.

Obama isn't going to do everything you want him to do. Accept that because he needs our support. There's nobody else who will come near to giving the country what it needs.

Apparently people are mad about the slow pace of creating the collective farms and People's Mobile Tribunal/Execution squads.

Clearly Obama has sold out. He's no better than Bush.
posted by Ironmouth at 11:05 PM on May 15, 2009 [3 favorites]


Ironmouth--which article did you read?

Here's her bio from the WH press release I linked to upthread:

Ignacia S. Moreno, Nominee for Assistant Attorney General, Environment and Natural Resources Division, Department of Justice

Ignacia S. Moreno is a leading practitioner in the field of environmental and natural resources law, with over 18 years of experience in the federal government and in private and corporate practice. She is currently Counsel, Corporate Environmental Programs at the General Electric Company, and serves pro bono as General Counsel to the Hispanic National Bar Association. President Clinton appointed Moreno to the Department of Justice, where she served first as Special Assistant (1994-95) and then as Principal Counsel (1996-2001) to the Assistant Attorney General for the Environment and Natural Resources Division. In these positions she provided advice and counsel to the Assistant Attorney General on a wide variety of matters, participated in management of the Division, led significant environmental enforcement initiatives, expanded and managed the Division’s international program, and represented the United States in international negotiations and litigation. While at the Department of Justice, Moreno received Special Commendations for Outstanding Service from the Environment and Natural Resources Division, two Bronze Medals from the Environmental Protection Agency for Outstanding Service, and a federal award for excellence in partnership-building. Moreno then joined Spriggs & Hollingsworth in Washington, D.C. where she specialized in environmental and mass tort litigation with an emphasis on science-based advocacy. Moreno began her career at Hogan & Hartson LLP in Washington, D.C. where she practiced with the firm’s environmental and litigation groups after graduating from the New York University School of Law. She currently serves on the Board of Advisors for the Center for International Environmental Law, the Board of Trustees for the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the Advisory Board for BNA’s Environmental Due Diligence Guide.


Now read or re-read the article in my most recent post on this thread from today's NYT about the Hudson cleanup. Ms. Romero would appear to have been providing GE legal counsel (since 2006) while they fought tooth and nail not to have to clean up the Hudson.

Here's a bit from the other NYT article (also from today) that's linked to in my FPP:

Prior to joining GE in 2006, Moreno worked at the Washington law firm Spriggs & Hollingsworth, where she specialized in environmental and mass tort litigation. She also worked for DOJ during the Clinton administration, serving as special assistant and principal counsel to the assistant attorney general for the environment division. She began her career at Hogan & Hartson LLP, where she practiced with the firm's environmental and litigation groups.

"There's a huge amount of concern circulating through the environmental community" about Moreno's nomination, said Alex Matthiessen, president of the New York-based environmental group Riverkeeper.

"She's essentially moving to the opposite side of the issue with very little experience as an environmental law enforcer," he said. Although she worked in DOJ's environment division from 1994 until 2001, "she seemed to have a fairly minor role in the division," he added.

Matthiessen, whose group focuses on cleaning up pollution in the Hudson River, said he was particularly troubled by Moreno's tenure as counsel to GE, whose plants discharged as much as 1.3 million pounds of polychlorinated biphenyls (PCBs) into the Hudson River in New York between 1947 and 1977. GE is accused of dragging its feet for years to avoid the costly cleanup.


Do we not deserve a more thorough look at this? She was counseling GE for the last three years while they fought tooth and nail not to clean up the Hudson. That may be nothing, but it sure don't smell right.
posted by ornate insect at 11:27 PM on May 15, 2009


Christ, do we always, always have to try to eat our own? WTF, does Rove have a microchip in your brain? Instead of attacking the GOP and polluters, you attack Obama. Instead of attacking Dick-fucking-Cheney, you attack our strong ally, Nancy Pelosi.

I don't know if you've noticed or not, but Dick Cheney can't actually do anything. What good would it do to attack him?

If you want to change things, you have to go after the people who actually have power, which are the democrats.
posted by delmoi at 11:28 PM on May 15, 2009 [2 favorites]


Romero: meant Moreno

[Oh and yes I know that she was a Clinton person. I get that. ]
posted by ornate insect at 11:28 PM on May 15, 2009


"Obama isn't going to do everything you want him to do."

It's not that. It's that Obama has repeatedly made it pretty clear that he won't do what he promised to do... which is pretty demoralizing, considering how little time he's spent in office.

I understand that some of these decisions are tactical. I understand that change is difficult, and that he might eventually shift his policies towards where he said he would at some distant time in the future. The thing is, though... he is showing himself to not be a man of his word... and worse, one who doesn't adequately explain his repeated "about faces".

If he honestly told people that his priorities were big things like passing healthcare, and that it would be politically easier to do so without starting unpopular wars or or provoking fight over the demons of the past, that, at least, would be somewhat understandable. But to make unexplained, amoral reverses, only to leave it to Gibbs to inadequately address? That's distinctly unhelpful.
posted by markkraft at 11:33 PM on May 15, 2009 [2 favorites]


So far, I have not been impressed with Obama's DOJ picks. Let's not forget packing it with ex-RIAA lawyers, too. Now, if the strategy is to pick people who understand the tactics of the polluters and the Intellectual Property Oppression League, he's doing good so far.

The question that comes to mind, though, is if these hires have first received instruction to say, "You know how these guys work. Take 'em down," and then second, will follow through on that directive. Both are required for this hypothetical strategy to succeed.

The first relies upon Obama; the second upon the integrity of the people hired.

Make of that what you will.
posted by adipocere at 1:55 AM on May 16, 2009


Yeah. Also Obama / Salazar declined to let the polar bear be protected from global warming using the Endangered Species Act, even though Congress passed special legislation to make this possible, and separate support letters were sent by 1300 scientists and 40+ law professors. Also, the gray wolf got delisted, opening the way to its hunting. Also, Obama's fuel efficiency standards were worse than Bush's proposed standards (though who knows where those would have gone before getting finalized).

I still have hope, but I don't follow the papers very closely, so this general air of dispiritedness is making me think I'm missing a lot. Are people already pretty discouraged?
posted by salvia at 1:56 AM on May 16, 2009 [3 favorites]


Ya know, it is possible to post without profanity and vitriol.

Sure the line's been around for some time, "I don't belong to an organized party; I'm a Democrat."

That said, my thought is that it is Democrats' job to push and criticize their leaders. The opposition's out there, lobbyists are out there and Democrats are supposed to think, say, "It's all good; s/he is a Democrat so all praise and glory to him/her?"

(I've long thought Obama is way too slippery, inclined to give himself an eyelash of room--"That's not exactly what I said.")

"Ya know, I may have said steel-belted radials are good tires and Honda's known for putting good tires on their cars, but I didn't say this here Honda--and it really is a good deal, so good that someone will be here in 20 minutes to look at it--has steel-belted radials."

I would not buy a (new or) used car from this man.
posted by ambient2 at 6:40 AM on May 16, 2009


It's a dispiriting moment. But you get over it.

There's nobody else who will come near to giving the country what it needs.


Must... suspend... critical... judgment...
posted by Rykey at 8:19 AM on May 16, 2009


I don't know if you've noticed or not, but Dick Cheney can't actually do anything. What good would it do to attack him? If you want to change things, you have to go after the people who actually have power, which are the democrats.

Pride cometh before the fall.

Dick Cheney can do things. Politics is war. If Cheney gets people to agree with him then it is bad.

Everytime Obama is attacked from the left he is weakened relative to his right. That means you are helping Dick Cheney. That means that the wise thing to do is to pick your battles--don't oppose Obama on every little thing, especially on thin facts. Major battles, yes, but minor appointments and individual permitting decisions? No.

Don't believe me? Why are the Republicans so weak? Because right-wingers opposed moderates on ideological grounds, forcing them away from the great mass of the independent centrists, who are the largest and most powerful political group in the country. The battle for their votes has motivated every political battle for the last 40 years.

Now we have a chance to totally remake the political dynamic in this country. Last time we had all the power in this country we alienated the independents and they capitalized.

I've been watching the political game for a long time. I watch C-SPAN floor debates for fun. I can't remember a time when we've been so strong. We are at the beginning of a chance to move this country's political map in ways that have never happened before. But we have to avoid the mistake the Republicans made and attack anyone and anything who someone tells us isn't ideologically pure enough. It will be our doom.
posted by Ironmouth at 8:19 AM on May 16, 2009 [4 favorites]


You cannot judge lawyers on who they represent. The system requires that lawyers be able to set aside their own personal prejudices and work for a client. Without that, any of the legal guarantees we have would be worthless because no matter what your rights are, without a lawyer, they aren't going to get enforced.

So Obama went for the most able lawyer he could find. I see that as a positive. It means she can win! That means less pollution! That's good for the US. Would you rather a well-qualified lawyer work for the other side?

Once she's in there, she's going to fight to win for our side. I want that.
posted by Ironmouth at 8:27 AM on May 16, 2009 [1 favorite]


mullingitover: "What is wrong with nominating this fox to run the Henhouse Division, when he has extensive experience with henhouse security?""

QFT. If The World Famous still doesn't get it, I suggest they ask Goldman Sachs whether they're happy with the job Tim Geithner has been doing.

This is will be an amusing time, actually, as we get to watch Obama's own "20%-ers" twist themselves into ever more complicated knots of self-delusion and intellectual hypocrisy to justify the actions of their Wise Leader.
posted by Joe Beese at 8:57 AM on May 16, 2009


Change you can believe in.
posted by Zambrano at 9:29 AM on May 16, 2009


That means that the wise thing to do is to pick your battles--don't oppose Obama on every little thing, especially on thin facts. Major battles, yes, but minor appointments and individual permitting decisions? No.

You know, I think he got more slack on the first few that people didn't agree with, but now that those people are making bad decisions, there's less willingness to just take it on faith.

Once she's in there, she's going to fight to win for our side. I want that.

Wow. So you think that once people enter into office, they automatically start doing what most of us would consider the right thing? There are so many counter-examples (e.g., the entire Bush era). Since she could do the right thing, but also doesn't have to, to see things from your point of view, I'd need to see additional evidence that she isn't someone who spent her career developing a political power base among polluting industries and intends to keep it that way.

I also disagree public opposition is necessarily weakening to Obama. Politics is not a multi-front war; it's a negotiation. Sometimes having a bad cop or having a boss that's not in the room are useful tools in negotiation. To the extent that the general public says "this appointee is not okay" he can push back against people saying he has to stop being liberal and pick someone more "balanced."
posted by salvia at 9:46 AM on May 16, 2009


Because right-wingers opposed moderates on ideological grounds, forcing them away from the great mass of the independent centrists, who are the largest and most powerful political group in the country.

One last thought: Obama didn't alienate the centrists with a good pick for NOAA. He could have picked someone better here.
posted by salvia at 9:51 AM on May 16, 2009


If The World Famous still doesn't get it, I suggest they ask Goldman Sachs whether they're happy with the job Tim Geithner has been doing.

Was Tim Geithner an attorney who represented Goldman Sachs as a client? No?
posted by The World Famous at 9:53 AM on May 16, 2009


When you say you work in an 'environmental industry' do you mean you work in an 'industry that profits from destroying the environment'? Because that's what your arguments sound like.

I missed a lot of the discussion in here and don't have time to read it right now, but I wanted to address this. I work on the cleanup side - i.e. I spend polluters money and help them clean up their mess (physically, not public opinion!). I've worked at government sites (DOD, etc) and private industry sites and the take away for me is that the people who really drag their feet and would rather argue for 20 years rather than get in there and clean it up are the government agencies. In my experience most private companies realize that the faster you get in there and clean it up the cheaper it is.
posted by Big_B at 10:47 AM on May 16, 2009


The system requires that lawyers be able to set aside their own personal prejudices and work for a client.

Fwiw, she chose to go work for GE as environmental counsel while they were in the middle of a protracted battle with the government to avoid having to clean up the mess they made.

I also want to say something else: nowhere in my FPP or in my comments did I imply that this was meant as an attack on Obama: that is why in the FPP and all my comments I was careful to point out that some environmentalists have concerns, and that part of my motivation here was to educate myself and others about whether or not these concerns were warranted.

Ironmouth: you have not offered anything substantive; just a lot of hyperbolic nonsense about how we're arming Dick Cheney and the Republicans by even daring to question Obama's decisions. This is a free country; if our system is really so weak that one measured blog post that asks whether or not Obama's environmental policy is a good as it could be, amounts to "arming the enemy," then our system is not worth preserving.

The educational aspect of my post is being overlooked. I'm very suspicious of both those who are ready to throw Obama under the bus and those who are unwilling to even differentiate between mild potential criticism and outright dismissal.

In short, stop being so afraid. The notion that every potential criticism or honest inquiry of Obama represents an attack on him is just patently ridiculous.

the people who really drag their feet and would rather argue for 20 years rather than get in there and clean it up are the government agencies.

That may be your experience, but it sounds really totally unbelievable in this particular case: everything I've linked to indicate it was GE who wanted to avoid the clean up and spent years tying it up in the courts.
posted by ornate insect at 11:04 AM on May 16, 2009


Fwiw, she chose to go work for GE as environmental counsel while they were in the middle of a protracted battle with the government to avoid having to clean up the mess they made.

Yes. She chose to go to work in the position that would, arguably, make her the highest-qualified environmental litigator in the world. Again, to say that her representation of a non-government party to Superfund litigation hurts her qualifications to head up that part of DOJ is exactly the same as saying that a former public defender is, by virtue of her former representation of criminal defendants, unqualified to head up DOJ's criminal division - that only a prosecutor is qualified for the job, because anyone who would choose to represent criminal defendants while they are in the middle of a protracted battle with the government to avoid having to go to prison for the crimes they committed cannot be trusted to turn around a prosecute criminals.

There is a valid point, however, that there may be un-waivable conflicts of interest where litigation against GE and any other former client of hers is concerned. There are mechanisms set up for lawyers to be able to wall themselves off from such conflicts. But it is conceivable that, if DOJ had continuing or even new dealings with GE, she might be required to take specific steps in order to make sure that she did not violate her various duties to current and former clients. Fortunately, this is not a situation like that of a former or current shareholder of a company who is suddenly in a regulatory position. The legal profession has well-established mechanisms for dealing completely with conflicts of interest and ongoing attorney-client privilege issues, and those mechanisms are in play here already.

everything I've linked to indicate it was GE who wanted to avoid the clean up and spent years tying it up in the courts.

Of course they did. Why wouldn't they? It would be preposterous for GE or any other company to not want to avoid joint and several liability for environmental cleanups of Superfund sites. And it would be a breach of an attorney's duties to not zealously and ethically represent their client in that regard.
posted by The World Famous at 11:45 AM on May 16, 2009


The World Famous: " to say that her representation of a non-government party to Superfund litigation hurts her qualifications to head up that part of DOJ is exactly the same as saying that a former public defender is, by virtue of her former representation of criminal defendants, unqualified to head up DOJ's criminal division - that only a prosecutor is qualified for the job, because anyone who would choose to represent criminal defendants while they are in the middle of a protracted battle with the government to avoid having to go to prison for the crimes they committed cannot be trusted to turn around a prosecute criminals."

Not only not "exactly the same", exactly the opposite.

Public defenders work for far less money than they could earn elsewhere to make sure that possibly innocent parties without resources have protection against a government looking to prosecute them.

Moreno was working for far more money than she could earn elsewhere to make sure that a certainly guilty party with billions of dollars had protection against a government (that it virtually owns through lobbying to begin with) looking to regulate its behavior.
posted by Joe Beese at 12:20 PM on May 16, 2009 [1 favorite]


to add insult to injury, obama has also chosen dr. thomas frieden to head the CDC. a dismal choice for those in favor of privacy. he 's the top nanny in NYC and will bring his uncompromising beliefs to this very important position nationwide.
posted by brandz at 12:43 PM on May 16, 2009 [1 favorite]


Public defenders work for far less money than they could earn elsewhere to make sure that possibly innocent parties without resources have protection against a government looking to prosecute them.

Moreno was working for far more money than she could earn elsewhere to make sure that a certainly guilty party with billions of dollars had protection against a government (that it virtually owns through lobbying to begin with) looking to regulate its behavior.


Sorry. I thought the objection was that she had been a lawyer for a party with interests directly contrary to those of the DOJ division that she has been nominated to head up. Am I now to understand that you have some reason to believe that the reason that she took a job representing GE was that she had a personal interest in making sure that GE had protection against the Government? Or is it that you think that only true believers to the environmental cause are worthy to represent the Government? That the only people qualified to head up the Criminal Division of DOJ are those who believe that guilty criminal defendants are not entitled to a legal defense?

Imagine if your favorite basketball team (not the Lakers, for the sake of argument) had an opportunity to get Kobe on the team. Would you be the fan opposing it on the grounds that Kobe has been a Laker for years, working for far more money than he could make for another team, to make sure that the Lakers, who have billions of dollars, have protection against losses to teams like yours who are looking to keep the Lakers from winning the NBA Championship?

The problem seems to be that the environmental movement is apparently (and maybe this perception is wrong) full of true believer zealots who are convinced that everyone who is not working full-time on their side is also a true believer zealot against them, and that only true believer zealots should be allowed to work on environmental law issues - that top-notch legal representation by a lawyer ethically bound to represent her client is just not enough for The Cause. But that's not reality.

Being a true believer regarding an aspect of legal representation can sometimes be helpful - like if a lawyer is working out of personal interest for a non-profit they believe in. But it can also be very dangerous in the legal profession. It can very easily prevent an attorney from fulfilling their ethical obligations to their client. In my opinion, we should not want the head of a DOJ division to be a true believer zealot on one side or the other of the legal issues that they are hired to deal with. They should be an attorney, an advocate for their client and not for a legal issue. The DOJ's client is the Government, and not the environmentalist lobby. And its legal judgment should not be clouded by personal bias or allegiance to a political cause. Nor should it make legal decisions based on political biases. We saw more than enough of that in the Bush DOJ and it would be nice to keep political motivations out of the Obama DOJ, frankly. And don't give me the whole "but our political motivations are the right ones!" routine. Just as the Conservative political movement was not supposed to be the client of the Bush DOJ, the Liberal political movement, including the environmental movement, is not supposed to be the client of the Obama DOJ.

That is not, apparently, what environmental groups want, though. They apparently want every lawyer working in government, especially the head of the division, to be a biased zealot on their side - not the Government's attorney, but their attorney with a government badge. This may be because they believe that the Government is their side of the issue. And that attitude represents the very danger that I think should be avoided in legal representation. Indeed, it is the very attitude that led to myriad abuses in the Bush DOJ.
posted by The World Famous at 1:38 PM on May 16, 2009


To say that her representation of a non-government party to Superfund litigation hurts her qualifications to head up that part of DOJ is exactly the same as saying that a former public defender is, by virtue of her former representation of criminal defendants, unqualified to head up DOJ's criminal division

Only if you believe that people represented by public defenders have the same standing in the public sphere as a Fortune 500 5 company. Public defenders appear - to non-laywers - as people deeply concerned with justice, with leveling the playing field. Lawyers working for mega-corporations appear - to non-laywers - as people deeply concerned with making a buck, with no particular interest in justice for average citizens. You are presenting lawyers as a class above other human beings, able to divorce their own biases from their actions. The reason I assume you're separating them from average human beings is that you have repeatedly ignored references to Timothy Geithner. But ever since the most qualified lawyers in the entire United States over the past 25 years decided to put their own political preferences over their supposedly un-biased jurisprudence (Bush v. Gore), it's been hard to take that argument seriously. Human beings do not, can not, act without bias. To suggest otherwise shows your own willful blindness. At least environmentalists are being honest: we want somebody serving with the appropriate political viewpoint for which the position was created in the first place.

Also, if she's the best-qualified, most awesome environmental lawyer ever in the whole world, why did her client just lose their case?
posted by one_bean at 2:40 PM on May 16, 2009


They apparently want every lawyer working in government, especially the head of the division, to be a biased zealot on their side

A public defender may well demand that her clients' crimes be held to equitable standards of evidence. She may even hold that some laws are unconstitutional. But it would be strange to put a public defender who has argued in favor of drug legalization in charge of prosecuting drug crimes. We expect district attorneys to find rape, murder, theft, and illegal drug use wrong, and to zealously prosecute perpetrators. We demand that they breath life into the dusty prohibitions ensconced in statute.

We would be outraged if a public defender chose to argue not that there was insufficient evidence that domestic violence occurred in a particular case, but that all domestic violence is constitutionally protected or that the spousal privilege ought to allow an abusive husband to bar his wife from testifying against him. Those arguments are absurd, and if they were upheld at the appellate level they would impact the criminal justice system as a whole. It's not unreasonable to protest putting a lawyer who had made a living on those kinds of arguments in charge of prosecuting domestic violence. This is not simply a matter of appearances: no matter how much you love the President, he won't be overseeing the day-to-day operations of the DOJ. There's plenty of room for a couple of well-placed zealots (or dullards) to have a big impact on the efficacy of the DOJ. -That's- what we learned from the Bush administration.
posted by anotherpanacea at 2:41 PM on May 16, 2009


someone tells us isn't ideologically pure enough.

Clearly you aren't getting it. It's not that he "isn't ideologically pure enough". It's that most of his decision on things we really care about are completely on the wrong side.

Obama is very pro-military and pro-war. We wanted someone who might think just a little before starting the next war. Obama seemed to be that man; he is not.

Obama is against the rule of law - extraordinary rendition, special courts with no protection in law, wiretaps, time and again he's come down on the side of the Bush government.

Obama is against punishing American leadership for their warcrimes. We're talking torturing people to death in concentration camps here...

Obama is very pro-Wall St. Note how he gave a trillion dollars to them, and we couldn't not pay the billions in bonuses to these millionaires because, hey, we have a contract! Now, the fact that the car companies (who are in the hole for a handful of percent of the total Wall St debacle) took back pension money from their workers - upon the instruction of the government. Those workers had a contract too - but those sort of contracts, with the average people, are not worth keeping if you're President Obama.

So what do we get? Stem cells. Man, I'm sick of hearing about stem cells. You know, there are other countries that do research that aren't America, you know. Stem cell technology would advance whether or not the US did the research, it would perhaps advance a little slower (but perhaps not as other countries forged ahead seeing an opportunity).

Some more money for technology. Some easing on reproductive choice. All good things, absolutely. But tiny, tiny things, things any government should do, things that actually have little or nothing to do with the Red and Blue puppets they keep dangling in our face.

Before, we were running towards the edge of the cliff as fast as we could. With Obama, we're simply walking there at a brisk pace.

It is not ideological purity when we want someone who will actually turn fix the damage done, rather than simply cause less new damage.

There needs to be a new social contract with Wall Street where bankers become actually "conservative" again - just like after the Crash of 29. There needs to be a new social contract with the world where the US admits that it does not have some special virtue that allows it to invade countries and kill countless people on a whim (and face it, when it comes down to it, we invaded Iraq exactly and precisely on a whim of George W. Bush). There needs to be a new social contract with the citizens to end the horrible system that has one percent of Americans incarcerated in vile dungeons while their jailers rake in the profits. There needs to be a new social contract with the planet where we recognize that humanity hopes to be around for millennia and act accordingly, which means selflessly giving up some profit now in the hopes that our grandchildren will be able survive to take profit later.

Now, I'm realistic. I don't expect to see any of these in my lifetime. But it's not "ideological purity" when I despair of Obama who is actively moving us away from these goals.
posted by lupus_yonderboy at 3:22 PM on May 16, 2009 [1 favorite]


I think I've come up with a solution to this intractable problem: I suggest we evaluate her qualifications on their merits and not their politics, give her the job if she meets the standard, and then give her a chance to do her job. Radical, I know, but I think it can work.
posted by effwerd at 3:27 PM on May 16, 2009


And there need to be fucking clawbacks of the trillions of dollars of our fucking money that have been siphoned out of the treasury by Wall Street and war contractors! Where did all the fucking money go? The billions in reconstruction money! And look at Iraq! Look at New Orleans! Look at the new "World Trade Center"!

This stuff isn't even mentioned. But, Republican or Democrat, don't you ever stop and think for a second... where did all these trillions go? Between the end of 2000 and the end of 2008, during a time that was almost all boom period and good tax collections despite the tax cuts, the US government managed to go into debt over $5 trillion - that's more or less the cost of the entire Second World War in 2009 dollars.

And what do you have to show for it? In fact, the government's been using the money to dismantle the government itself - using private contractors, "mercenaries" who for example replace soldiers but are paid many times as much as soldiers and are beyond justice, revolving door "contractors" up to and including Mr. Dick Fucking Cheney himself.

They spent as much money as World War II AND they broke your government. And a lot of that money was stolen and I mean was taken from us the people by criminal means, fraud, fraudulent conveyance, one of a myriad of securities offenses, and even out-and-out criminal theft in many cases.

And can you imagine how popular it would be if they had trials for all these contractors and took back all their money? It would play amazingly well all over America. Left or right, people love a good trial. Rich contractors just aren't popular anywhere. Seeing them sweat on TV, thinking that their taxes will be less because of the money they're getting back - people would eat that shit up. IF there were thousands of trials of people for financial malfeasance - and the only thing they'd need to do that is to fully enforce the laws that are already on the books - if the government passed laws to recover the money stolen from us which they have every right to do - 90% of the population would love it if they could prove their cases beyond a shadow of a doubt.

I fully expected something of the sort from Obama. He's a smart guy. He must understand that the government has been looted. All that money didn't just vanish.

But no. He's acted like nothing happened. Now of course, that's the going story - nothing happened. What $5 trillion? Let's move forward now. Look, is that the dawn of a new economy over the horizon?

The point is that Obama feels that rich people have every right to manipulate the system to steal money from we the people. I'm sure he doesn't use exactly those terms in his head but when it comes down to it, that's exactly the result. And again, this is not a minor idealogical difference but a complete polar opposite from what I believe and a lot of other people who supported Obama believe.
posted by lupus_yonderboy at 3:53 PM on May 16, 2009


(sorry for the derail. I'll be good. I was just sick of that whole "you're too idealogically picky" meme...)
posted by lupus_yonderboy at 3:55 PM on May 16, 2009


Dammit. And I had just come across this more optimistic piece: The Razing of Appalachia: Mountaintop Removal Revisited.

WTF Obama.
posted by homunculus at 4:16 PM on May 16, 2009


Mountaintop removal update: EPA responds to Rahall
posted by homunculus at 4:20 PM on May 16, 2009


So what do we get? Stem cells.

Or not: Obama’s Stem Cell Guidelines Threaten Research
posted by homunculus at 4:23 PM on May 16, 2009


You say "true believer" like it's some weird and radical subset. Personally, I kind of want the person who is supposed to prosecute corporate pollution to be a true believer in the need to clean up pollution.

Imagine if working for a polluting industry seemed radical and made people suspect you were biased and perhaps unqualified to defend the public against industry pollution.
posted by salvia at 7:45 PM on May 16, 2009


That last link, homunculus, is much ado about nothing. The NIH will sort it out. It's basically just a minor technical issue that needs to be sorted out (that previously stem cell lines weren't governed by new informed consent standards that everybody agrees are a good thing), not an intentional roadblock on ideological grounds.

There's been a near constant stream of stories that take small issues and blow them out of proportion like this lately. Given that the administration is in the middle of a lot of steps that are unpopular with the people that own the press, a lot of these stories need to be treated with an extra dose of skepticism.

That said, I have my misgivings about this appointment and the mining issue, and I'm also really disappointed in the congress for watering down the environmental legislation moving through the process right now.

(And ornate insect--oops about calling Moreno 'he'. Made a mental note while reading the article that the nominee was a she, but still got it wrong a second later. Guess that reveals a latent sexist bias or something. Anyway, admittedly, I don't know anything about this appointment or the mining issue, but it is worth repeating, the economy is a lot more crucial issue for Obama now than it seemed during campaign time, and that can't help but influence some of the decision making.)

Obama is very pro-Wall St. Note how he gave a trillion dollars to them, and we couldn't not pay the billions in bonuses to these millionaires because, hey, we have a contract!

I don't think this is fair. He hasn't given trillions of dollars to Wall Street. The treasury has, with most of it going under Bush on Paulson's watch. Please don't completely overlook that. Yes, a lot more money still has gone out the door since, but I think a big part of this is that Obama has been actually trying to do what so many criticized the Bush administration for not doing: deferring to the experts on policy.

President Obama's not an expert on Wall Street himself. His financial history makes that plain. And he's not supposed to be the expert. That's supposed to be what the Treasury Department's for. So of course he's going to defer to guys with a long history in the field and solid reputations as experts in finance and economics like Larry Johnson, Geithner, Volcker, etc.

I think he lets these guys have a lot of leeway and gives them the benefit of the doubt on a lot of matters even under political pressure, because he probably doesn't want to make Bush's rightly-criticized mistake of frequently second-guessing and/or overruling experts on the basis of his own political or ideological commitments.

There is absolutely no chance that Obama is "in bed with Wall Street," regardless of what you might think of some of the Treasury's actions. I think Obama, as he campaigned, sincerely believes in respecting the separations of powers and letting the experts drive policy in their respective policy areas.

But maybe where finance is concerned, the whole stinking mess is so corrupt there just aren't any experts who can be relied upon to make judgments that are truly in the public interest. Or maybe the Treasury and federal reserve do know exactly what they're doing, but we've just been left in an impossibly difficult situation (possibly deliberately) by the previous administration.

And as clawbacks go, what do you think the administration's recent announcements about a policy shift toward more aggressive anti-trust law enforcement and a push for broad new regulations on the derivatives industry are all about? But most everything you seem to want can't just be wished into law. Obama has to have the political support needed to get them through congress (meaning, people have to pressure congress to support his agenda). Obama can't just take money from Goldman Sachs with a flick of his pen, and give it back to taxpayers. He has no legal authority to do that.

Whatever you'd like to see happen, it still has to go through congress. The only area in which the president has any exceptional degree of power is in waging war. Otherwise, apart from the matters congress has explicitly deferred to the executive, all the president can do is try to steer the direction of the policy debate and either sign or veto bills.

I'm not saying Obama should be above criticism. No one in public service should be. But a lot of the outrage being spread around lately seems deliberately meant to derail a lot of big policy initiatives that really need to get through the process, with less focus and heat on Obama and a lot more focus and heat on the people in congress on both sides who are actually defining what is and isn't possible in terms of policy on healthcare reform, education reform, energy policy, financial sector reform, etc., etc.
posted by saulgoodman at 8:09 PM on May 16, 2009


We would be outraged if a public defender chose to argue not that there was insufficient evidence that domestic violence occurred in a particular case, but that all domestic violence is constitutionally protected or that the spousal privilege ought to allow an abusive husband to bar his wife from testifying against him. Those arguments are absurd, and if they were upheld at the appellate level they would impact the criminal justice system as a whole. It's not unreasonable to protest putting a lawyer who had made a living on those kinds of arguments in charge of prosecuting domestic violence. This is not simply a matter of appearances: no matter how much you love the President, he won't be overseeing the day-to-day operations of the DOJ. There's plenty of room for a couple of well-placed zealots (or dullards) to have a big impact on the efficacy of the DOJ. -That's- what we learned from the Bush administration.

I'm sorry - are you arguing that some specific legal argument advanced by Ms. Moreno during her legal career to date is an "absurd" or frivolous argument that, on its own, speaks to her unfitness for the position?
posted by The World Famous at 9:24 PM on May 16, 2009


Ironmouth, I agree with a few of your points, but it's fine to criticism a sitting president you approve of. Part of making sure a representative government works is providing feedback and staying informed for the next election. I voted for and approve strongly of Obama and I have generally positive feelings about Pelosi, but I find this news a bit upsetting. However, I do feel like his first 120 days have been a step in the general right direction.

It's important we let our leaders know how we feel, as we are essentially their bosses. It's also important that we remember to push for candidates we full-heartedly support, rather than on a "not-the-other-guy" platform. That was the platform Kerry ran on, and it's understandable in retrospect that he didn't get enough votes to win, as it's not an inspiring message. It's also more or less the platform McCain ran on.
posted by mccarty.tim at 10:15 PM on May 16, 2009


I'm sorry - are you arguing that some specific legal argument advanced by Ms. Moreno during her legal career to date is an "absurd" or frivolous argument that, on its own, speaks to her unfitness for the position?

Yes, I am: the argument that liability for cleanup is a taking.
posted by anotherpanacea at 4:23 AM on May 17, 2009


Yes, I am: the argument that liability for cleanup is a taking.

As I understand it, that's not exactly the argument. And, as I understand it, no judge has ruled that the argument is absurd or frivolous. But maybe you know more about legal arguments than I or they do.
posted by The World Famous at 6:46 PM on May 17, 2009


But maybe you know more about legal arguments than I or they do.

As we've seen the judges -do- agree that this is an absurd argument. As early as 1998 there have been repeated attempts to assert that CERCLA's liability provisions can be challenged under the decision in Eastern Enterprises v. Apfel. In United States v. Vertac Chemical, the court asserted that "there is no basis to warrant reconsideration of the constitutionality of CERCLA."

Then there's Justice Kennedy:

The law simply imposes an obligation to perform an act, the payment of benefits. The statute is indifferent as to how the regulated entity elects to comply or the property it uses to do so. To the extent it affects property interests, it does so in a manner similar to many laws; but until today, none were thought to constitute takings. To call this sort of governmental action a taking as a matter of constitutional interpretation is both imprecise and, with all due respect, unwise.

So I've got that going for me. I'm not a lawyer, but I guess I do know more about it than you do.
posted by anotherpanacea at 5:37 AM on May 18, 2009


I'm not a lawyer, but I guess I do know more about it than you do.

In law, certain words have fixed meanings. "Absurd" and "frivolous" are among those words. The fact that an argument is not a winning argument does not mean that it is "absurd" or "frivolous." Nor does the fact that an attorney advances an argument that ultimately does not sway the court mean that that lawyer is incompetent, unethical, or unfit to practice in a given area of law. You and Justice Kennedy clearly do not like the regulatory taking argument re: Superfund. And that's fine. But when you argue that, by making the regulatory taking argument, Ms. Moreno has demonstrated unfitness for a DOJ position or that she has acted equivalently to a criminal defense lawyer who argues that domestic violence is constitutionally protected, you are so incredibly wrong that it is painful.
posted by The World Famous at 9:45 AM on May 18, 2009


I never said that it was frivolous, just absurd. See: "unwise." And there's a difference between an analogy and an equivalence. Kennedy's opinion is the holding on this issue. It's well settled and it was only a delaying tactic to use it to defend GE.

Can I ask: this vitriolic "so incredibly wrong that it is painful"? Does that advance an argument of some sort? Is it just because you're embarrassed to have been shown up by a non-lawyer? I imagine it must be difficult, but why do you take it so personally? You started this argument with an appeal to authority: "But maybe you know more about legal arguments than I or they do." I countered with an appeal to the actual legal authority. And you retreat to acrimony rather than evidence. Does that work in the courts where you practice law?
posted by anotherpanacea at 9:52 AM on May 18, 2009 [1 favorite]


Can I ask: this vitriolic "so incredibly wrong that it is painful"? Does that advance an argument of some sort?

No, it's just an observation.

Is it just because you're embarrassed to have been shown up by a non-lawyer?

No. I have not, to my knowledge, been "shown up." I believe that you are advancing an absurd argument and attempting to base it on an incorrectly applied citation. And I think that your argument is so severely flawed as to prevent further useful discourse on the subject.

I imagine it must be difficult, but why do you take it so personally?

Here's what I'm embarrassed by: That I apparently allowed your insulting tone and attempt to "show me up," which you are still using, to get under my skin and that I began to respond in kind. I apologize for that. I don't think you're an idiot in any sense. But I do think you're trying to argue and "show me up," rather than trying to discuss. And I think that your arguments, notwithstanding your general intelligence and your apparent training in argument generally, reflect a lack of understanding of the legal profession (or perhaps an understanding outweighed by a desire to fight and "show me up," rather than to actually discuss issues in good faith.) But I won't rule out the possibility that you genuinely believe that the advancement of the takings argument was a legal strategy so absurd as to disqualify someone from a DOJ position. I strongly disagree with that position. Either way, I want to stop the "you're stupid! no, you're stupid!" thing, because you're not stupid, and I suspect that I'm not, either. I get the impression that you really enjoy trying to "show up" people. But I am not on Metafilter for that type of discourse.
posted by The World Famous at 10:20 AM on May 18, 2009


I don't think everything in your last paragraph is fair assessment. I'm not here to show people up. I simply believe that when experts use their presumed authority to disqualify counterargument rather than responding substantively, they open themselves to disproof which ought to be understood as puncturing the cloud of presumption. I believe that you have several times opened yourself to this kind of puncturing in this thread.

You started the personal attack portion of this discussion with your a little dig about "understanding legal argument" rather than offering a substantive response. I don't believe it makes you a bad person: your most recent comments indicate you also prefer to deal with issues, to respond to arguments rather than attack persons, and that's all the good faith I need. Yet you also use your comment to draw invidious conclusions about my motives and personality, and that's exactly what got you into trouble the first time. I wish you hadn't done that, but I recognize an awkward call for truce when I see one.

I won't rule out the possibility that you genuinely believe that the advancement of the takings argument was a legal strategy so absurd as to disqualify someone from a DOJ position.

I'm of two minds on the matter. Because you have cast this as a question of legal expertise, I have tried to respond in kind. But ultimately, this isn't a legal question, it's a political one. Do you know the term 'agency capture'? I think it's a serious risk with Moreno. There's nothing legally insufficient with wanting those who enforce our laws to be true believers. If the laws themselves are just (and I believe CERCLA is) than environmentalists are entitled to their view that believers will do a better job than mere mercenaries. They may miss out on some great lawyers this way, but they're hoping thereby to defend against the constant efforts of industries that are always trying to gain control of their regulators.

Moreno advanced a position that, if it was successful, would have undermined her capacity to do her new job at the DOJ. I am fairly sure she did so in bad faith: knowing it would fail, but serving GE's interests in delaying cleanup. But what if it had succeeded? The Court's membership has shifted since Eastern was decided. A reversal would render CERCLA/Superfund moot, as well as hamstringing the EPA in its other enforcement activities, and frankly the scope of potential 'adminstrative takings' is very much broader than just environmental issues. As Justice Kennedy points out, this would set off a shock-wave through the agencies that engage in both fact finding and regulation. But mostly, the American taxpayer would be left to foot the bill for cleaning the Hudson. That's the situation that Moreno was paid to try to bring about: externalizing GE's costs.

Moreno was not a firm lawyer, working on various accounts: she was GE's corporate counsel. I know that many lawyers can easily separate their professional advocacy from their personal views, but there are also many lawyers who prefer to work at jobs that do not set the two at odds in the first place. She may well be a fine lawyer, and I'd be happy to see her practice in some other division of the DOJ: the Bush administration decimated the Civil Rights division, perhaps she could work there?
posted by anotherpanacea at 11:22 AM on May 18, 2009


I just made it back to this thread. TWF, I wasn't trying to take a cheap shot but I was pressed for time and my previous one-liner encapsulated my thoughts on her resume with regard to this position. The term 'agency capture' that anotherpanacea brings up is exactly why it seems counterintuitive to put her in this role. TWF, you made an analogy with a public defender, but I think that's flawed. A closer fit would be Johnnie Cochran getting nominated to be the head of the criminal justice division.
posted by mullingitover at 7:48 PM on May 18, 2009


Then, on the other hand:

U.S. to propose most aggressive auto fuel standards

...So at least there's that.
posted by saulgoodman at 8:20 PM on May 18, 2009


While campaigning, Obama spoke out against mountain top removal.

Recently, the EPA greenlighted 42 out of 48 mountain top removal permits.
posted by salvia at 12:32 AM on May 22, 2009


salvia, I know that seems like a slam dunk, but here's the other side of it. Those permits were approved years ago by the Army Corps of Engineers. They've been held up because of litigation. They've been reviewed, and now EPA is exercising its discretion to re-review them.

EPA has the option to veto them. For perspective, realize that EPA has only vetoed 12 such permits since the 1970s. So this is actually a lot of activity on EPA's part.

Look: mountain top removal is troublesome, but it's legal. The only reason we're chopping the tops off these mountains and dumping them in nearby streams in the first place is that we need the coal there. It's cleaner than coal from the West, and the effort to prevent acid rain (remember the last environmental catastrophe?) has led to companies returning to the Appalachian coal fields. If you want to prevent mountain top removal, you've got to be -for- something else, something that will reduce our energy needs or replace our supply.
posted by anotherpanacea at 4:18 AM on May 22, 2009


mountain top removal is troublesome, but it's legal

That's arguable enough to provoke lawsuits and conflicting rulings ("legal", overturnng an earlier ruling of "illegal"). More practices are legal now only due to Bush-era rule changes. And it gets practiced even more illegally. What was most interesting to me was that people quoted in that article I linked (both pro- and anti-coal) were saying they couldn't tell how the EPA had decided which to object to.

If you want to prevent mountain top removal, you've got to be -for- something else, something that will reduce our energy needs or replace our supply.

I don't understand this comment. (a) Who says I don't, and even if I didn't, (b) nobody says "you have to have a comprehensive plan for stopping terrorism if you want to be against torture. Otherwise, it's the best we've got!" That seems to me to be the argument you're making here.

I do agree with you that reviewing these and stopping any of them is a step in the right direction.

Also, I can't believe I didn't remember that MTR was mentioned in the original post. Duh!
posted by salvia at 8:49 AM on May 22, 2009


Salvia, there's definitely a tension between the stream buffer rule and mountain-topping. Thankfully, Ken Salazar is working to revoke the Bush-era rule-that's-not-a-rule. At that point, we'll be back to the unenforced status quo, and hopefully then they can actually get down to the business of getting it right. However, no stream buffer rule is going to prevent mountain-topping: once you chop the top off a mountain, you can't put it back, as the dirt's been aerated and won't stick. So the only place to put it is in valley, i.e. the stream.

they couldn't tell how the EPA had decided which to object to.

Yeah, I too am interested in this question.

"you have to have a comprehensive plan for stopping terrorism if you want to be against torture. Otherwise, it's the best we've got!"

Stopping torture doesn't turn off the lights. I'm typing this right now on a laptop powered by a coal plant down the street. Odds are, you're in the same boat.
posted by anotherpanacea at 5:17 AM on May 26, 2009


West Virginians Step Up Protests as EPA OKs New Mountaintop Removal
posted by homunculus at 5:30 PM on May 29, 2009


Mountaintop Mining Opponents Say Obama's Scrutiny Promise Is Not Enough: 'You Can't Regulate An Abomination'
posted by homunculus at 11:49 AM on June 13, 2009


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