Sustained Outrage

About Judge Goodwin’s chemical plant expert …

UPDATED: Here’s a link to a feature photo from Friday’s Gazette showing the pro-Bayer driving procession yesterday evening.

We broke a story in today’s Gazette detailing the long-standing views of Sam Mannan — the court-appointed expert in the Bayer MIC case — against government regulations to mandate chemical plants more closely consider “inherently safer technologies.”

As we explained:

A chemical engineer appointed to advise U.S. District Judge Joseph R. Goodwin about the safety of Bayer CropScience’s controversial methyl isocyanate unit has consistently opposed new rules that would push companies to reduce the use and storage of large amounts of toxic materials.

Sam Mannan of Texas A&M University has, for nearly a decade, been a critic of efforts by environmental and labor groups to force chemical companies to study and implement “inherently safer technologies” for their manufacturing plants.

Mannan has testified before Congress on the issue several times, warning lawmakers against adopting such language. At Texas A&M, he directs the Mary Kay O’Connor Process Safety Center, which published a 2002 report that industry often cites in criticizing proposals for such regulations.

Last month, Mannan cautioned a House subcommittee that requiring “inherently safer technologies” might sound good, but is more complex than it sounds and could create more problems than it solves. Mannan said there is no widely accepted way of determining what “inherently safer” means, and questioned whether government regulators should try to come up with one.

“There are dangers associated with mandating a specific assessment model, or requiring an overly burdensome assessment regime,” Mannan testified at a Feb. 11 hearing of a House homeland security subcommittee.

For those who want to read more about this, some of Mannan’s congressional testimony is available here and here. And this is a link to his “White Paper” on the topic. My story in our print edition also quoted this testimony from Greenpeace’s Rick Hind and this testimony from former U.S. Chemical Safety Board member Andrea Kidd Taylor.

Based on the White Paper, Mannan’s favorite analogy seems to be comparing implementation of safer technologies at chemical plants — such as storing less of extremely toxic chemicals — to whether you live in a one- or tw0-story house or whether you install stairs in your house:

One of the most common accidents at home is falling on the stairs. A home without stairs, i.e. a onestory bungalow, is inherently safer with regard to falling on stairs than a two-story house. Even if the stairs are equipped with handrails, non-slip surfaces, good lighting, and gates for children, the hazard is still present (Kletz, 1998). Obviously the choice of an inherently safer house implies positive and negative consequences, which may include aesthetics, cost, and other types of hazards. An elevator could reduce the use of stairs but requires a large capital expense. During construction there would be significant hazards to the residents and construction workers and the stairs would still be necessary for emergency egress. Few families would conclude that installing an elevator is the best use of their resources.

And judging from his congressional testimony, Mannan has some, well, interesting ideas about why chemical companies should be careful including their workers in finding ways to protect plants from terrorists:

While I think consultations of employees and involving employees is very important and should be done, but it should be done carefully. There is a two-edged sword there, and one of the issues we deal with in anti-terrorism issues is the insider threat. In my own testimony I provided some statements as to the threat from not only al-Qaida but mutations of the organization of al-Qaida and their associations with organizations that may have ideological or different view, but maybe anti-establishment and may develop a collaboration with al-Qaida type organizations. So insider threat is an issue that is something that we need to be aware of.

This just in from The Associated Press:

The Supreme Court ruled Tuesday that corporations have no right of personal privacy to prevent the disclosure of documents under the federal Freedom of Information Act.

Chief Justice John Roberts wrote the 8-0 opinion Tuesday that reversed an appeals court ruling in favor of AT&T. The outcome was notable for its unanimity, especially in view of recent criticism from liberal interest groups that the court tilts too far in favor of business.

“The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations,” Roberts wrote. “We trust that AT&T will not take it personally.”

You can read the ruling here.

Perhaps the ruling will be helpful in West Virginia, where the state’s open records law has a similar personal privacy exemption to that contained in the federal law.

Black lung cases headed back to Raleigh County

Three lawsuits filed against the Jackson Kelly law firm, alleging a pattern of fraud and deceit in the firm’s handling of black lung cases on behalf of coal companies, are headed back to Raleigh County Circuit Court after U.S. District Judge Thomas E. Johnston remanded them on Monday. Jackson Kelly had removed the cases to federal court, arguing that the cases belong there in part because the they hinge on whether the conduct in question was allowed under the rules governing the Black Lung Benefits Act, which is exclusively federal.

In his order, which provides a helpful summary of the allegations and the issues at hand, Johnston concluded that the plaintiffs could prove their allegations of fraudulent misrepresentation under state law without having to raise a substantial issue of federal law. Johnston wrote:

Jackson Kelly relies too heavily on the BLBA as setting the standard of conduct applicable in these cases, particularly when it argues that [this] Court has subject matter jurisdiction because one issue is “whether conduct is at odds with the . . . BLBA.” At oral argument, Jackson Kelly reiterated this point when it claimed that, in order to prove their prima facie case, Plaintiffs must demonstrate that Jackson Kelly violated the provisions of 29 C.F.R. § 18.14, concerning the scope of discovery in black lung proceedings before the Department of Labor. Not one element of Plaintiffs’ claims requires resolution of this, or any other, federal question. A court may well turn to the issue of compliance with the BLBA’s provisions as a proxy or indicator of whether Jackson Kelly perpetrated a fraud as alleged, but nothing in the laws of West Virginia requires illegal conduct to satisfy the elements of common law fraudulent misrepresentation. Even if Jackson Kelly’s conduct fully complied with all applicable BLBA standards, Plaintiffs could still establish every element of their fraud claims; conversely, if Jackson Kelly failed to comply with BLBA standards, Plaintiffs would not automatically establish fraudulent misrepresentation under West Virginia law.

Later in the opinion, Johnston concludes:

Although Jackson Kelly’s briefing adequately summarizes BLBA regulations concerning discovery and evidence, at no point does Jackson Kelly identify specific regulations that must be answered to establish one or more elements of Plaintiffs’ fraudulent misrepresentation or legal malpractice claims. Instead, Jackson Kelly argues in the abstract, stating that the BLBA is so comprehensive that any dispute approaching the BLBA process must turn on substantial questions of federal law. Such an argument is utterly insufficient to carry Jackson Kelly’s burden of demonstrating the suitability of federal jurisdiction.

Continue reading…

Hearing set for Thursday on MIC lawsuit

Word just in that U.S. District Judge Joseph R. Goodwin has scheduled a hearing for  tomorrow (Thursday) to consider whether Bayer CropScience should be temporarily blocked from restarting the methyl isocyanate unit at its Institute plant.

The hearing is set for 2 p.m. in U.S. District Court here in Charleston.

If you missed it, we had a story on today’s Gazette about the case, and posted a copy of the lawsuit here. As we reported:

Among other things, the suit asks for a court order to block Bayer from resuming production of MIC until comprehensive plant inspections are conducted by the U.S. Environmental Protection Agency and the federal Occupational Safety and Health Administration.

The Institute plant’s stockpile of MIC — for years the plant stored a quarter-million pounds of the chemical on site — has been a focus of concern for many valley residents since December 1984, when a leak of the chemical killed thousands of people near a Union Carbide plant in Bhopal, India.

Bayer is in the process of restarting the MIC unit after a significant modification project, but plans to operate it for only about 18 months before it stops making, using or storing the chemical at its Institute plant.

Photo by Tom Hindman, Charleston Daily Mail, via The Associated Press

Bayer lawyers have not yet filed any papers responding to the lawsuit, but plant spokesman Tom Dover issued this follow-up statement today:

Bayer CropScience has received a copy of the court filings, and they are under review. In the meantime, it is important that the community know about the extensive efforts we have implemented to ensure the safe start up and operation of the new production unit. First and foremost, we’ve invested more than $25 million in new production, safety and communications equipment. We have completed our planned reduction of methyl isocyanate storage by 80 percent and have eliminated all above-ground storage. The employees responsible for this operation have undergone extensive process and safety training associated with these operations. And we have established several new safety and communications processes, working closely with Metro 911, the KPEPC, and others. All of these efforts — as well as numerous process and safety reviews along the way, including one recently completed by third-party experts — have led to our assurance of a safe operation. We are fully dedicated to a safe startup of these operations and remain confident that we will meet our own high expectations, as well as those of our neighbors and community.

I asked Dover if I could interview someone from the plant who is overseeing the restart of the unit, or if the company would make public this “third party” safety review referred to in his statement. I haven’t heard back yet…


I still haven’t heard back from Tom Dover on my request, but last evening Bayer lawyers filed this legal brief responding to the brief the residents’ lawyer filed in support of their motion for a Temporary Restraining Order.

Of course, the lawsuit accuses Bayer not only of  “chronically reckless operation” of the plant, but also of “admitted dishonesty in public communications” with residents of the Kanawha Valley.”

Readers may recall that Bayer CEO William Buckner testified before a congressional committee that his company tried to use homeland security regulations to avoid “negative publicity” about the August 2008 explosion that killed two plant workers:

There were, of course, some business reasons that also motivated our desire for confidentiality. These included a desire to limit negative publicity generally about the company or the Institute facility, to avoid public pressure to reduce the volume of MIC that is produced and stored at Institute by changing to alternative technologies, or even calls by some in our community to eliminate MIC production entirely.

Also, the U.S. Chemical Safety Board has noted how Bayer stonewalled local emergency responders seeking information about the incident and misled local residents when company officials insisted that no dangerous chemicals were released, when in fact key monitors at the plant weren’t working the night of the incident.

CSB investigators, of course, found that the fatal explosion never had to happen, if Bayer had operated its plant properly. Here’s the agency’s video of what happened:

Obama’s confirmation scorecard

(AP Photo/Charles Dharapak)

Earlier this month, Russell Wheeler of the Brookings Institution published an interesting comparison of judicial confirmations during the first two years of the administrations of Presidents Barack Obama, George W. Bush and Bill Clinton. Interestingly, all three faced Democratic majorities in the Senate, although under President Bush the margin was a very slim 51-49.

Wheeler started with the general observation that under the five presidents preceding Obama, the percentage of circuit court nominees confirmed by the Senate has crept downward (Carter 92 percent, Reagan 88, Bush I 79, Clinton 73, Bush II 71) while district court nominees have remained fairly steady and high (Carter 91 percent, Reagan 94, Bush I 79, Clinton 87, Bush II 92).

When comparing Clinton, Bush II and Obama’s first two years, some interesting differences emerge. Clinton inherited 17 circuit court vacancies, nominated 22 candidates, had 19 confirmations, resulting in 16 vacancies when the Senate adjourned. Under Bush II, those numbers are 27 vacancies, 31 nominees, 16 confirmations and 25 remaining vacancies. For Obama, it’s 13 vacancies, 25 nominations, 16 confirmations and 16 remaining vacancies. Clinton and Bush II reduced their vacancies slightly, while Obama saw them increase.

For district court vacancies, there’s an even bigger discrepancy. Again, during the first two years, Clinton inherited 90 vacancies, nominated 118, confirmed 107, with 52 remaining vacancies. For Bush II: 54 vacancies, 98 nominations, 83 confirmations, and 35 remaining vacancies. Under Obama: 41 vacancies, 78 nominations, 44 confirmations, and 76 remaining vacancies. Clinton reduced the vacancies he inherited by 42 percent, Bush II by 35 percent. Obama saw the vacancies increase by 85 percent.

Wheeler noted:

That Obama got even the district confirmations he did, moreover, was due to the lame duck session. Confirmations don’t stop on July 1 of election years, even if they become more difficult. 47 of Clinton’s 107 district confirmations came in August through October 1994.

The 2002 107th lame duck Democratic Senate, with a switch in party control looming, confirmed 17 Bush district nominees. The 2010 111th lame duck Senate confirmed 14 Obama district nominees. But different things were going on. The lame duck 107th was mainly cleaning out relatively recent Bush nominations. The 17 Bush appointees it confirmed had waited on average 149 days for Senate action; only three had been nominated before June 2002. By contrast, Obama’s 14 lame duck district confirmations represented a deal to clean up mostly long-standing, non-controversial nominees. They waited on average 257 days for confirmation, and only one had been nominated after June 2010.

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Obama nominates Floyd for 4th Circuit

Today, President Obama nominated Henry F. Floyd, a federal judge from South Carolina, for the last open seat on the U.S. Court of Appeals for the 4th Circuit.

If confirmed, Floyd would be the fifth judge Obama has placed on the 4th Circuit, which has 15 seats total. The previous four were Andre M. Davis of Maryland, Barbara Milano Keenan of Virginia, James A. Wynn and Albert Diaz, both of North Carolina.

Here’s the White House’s press release:

WASHINGTON – Today, President Obama nominated Judge Henry F. Floyd for the United States Court of Appeals for the Fourth Circuit.

“Throughout his career, Henry Floyd has demonstrated unwavering integrity and a firm commitment to public service,” said President Obama.  “I am proud to nominate him to serve on the United States Court of Appeals.”

Judge Henry F. Floyd: Nominee for the United States Court of Appeals for the Fourth Circuit

Judge Henry F. Floyd is a distinguished jurist without over 18 years of judicial experience.  For the past seven years, he has served as a U.S. District Judge for the District of South Carolina.

Judge Floyd was born in Brevard, North Carolina, and moved to Pickens, South Carolina as a young child.  He received his B.A. in History from Wofford College in 1970, and his J.D. from the University of South Carolina School of Law in 1973.  While at Wofford, Judge Floyd joined the Reserve Officers Training Corps and was commissioned a Second Lieutenant in the United States Army, later achieving the rank of First Lieutenant.

In 1972, Judge Floyd was elected to the South Carolina House of Representatives and served until 1978.  He began his private law practice in 1973 with the formation of the firm of Floyd and Welmaker, P.A.  Five years later, the firm became Acker, Acker, Floyd & Welmaker, P.A., after it merged with another law firm.  While in private practice, Judge Floyd served as a Commissioner on the South Carolina Forestry Commission from 1979 to 1991 and was counsel for Pickens County from 1986 to 1992.  In 1992, Judge Floyd was elected by the South Carolina General Assembly to serve as a Circuit Court Judge for the Thirteenth Judicial Circuit and held that position until he joined the federal bench.

How the Senate can honor Judge John Roll

As the world now knows, Judge John M. Roll, Chief U.S. District Judge for Arizona, was among the six people murdered in Saturday’s shooting rampage in Tuscon. Although U.S. Marshals had placed Roll under 24-hour security for a month in 2009 following his ruling in a controversial civil case involving immigration, then as now a hot-button issue in Arizona, Roll does not appear to have been targeted by the alleged shooter, Jared Lee Loughner. “He was in the wrong place at the wrong time,” said Sheriff Clarence W. Dupnik of Pima County, Ariz., as reported in the New York Times.

Apparently, Judge Roll stopped by the event to thank Rep. Gabrielle Giffords, D-Ariz., for signing a letter sent to Judge Alex Kozinski, chief judge of the U.S. Circuit Court for the 9th Circuit, asking the appellate court to declare Roll’s district a judicial emergency, according to the Wall Street Journal. Districts along the U.S.-Mexico border are swamped with immigration cases, making them some of the busiest districts in the country.

Judge Roll called Ms. Giffords within the last couple of days to thank her for signing the letter; she mentioned she was doing a constituent event in the area where he lived so he decided to attend the event to thank her, according to Judge [Michael] Hawkins.

The letter signed by Rep. Giffords and Rep. Pastor, outlined the challenge Judge Roll faced in handling a growing caseload. “The District of Arizona is simply overworked and understaffed…Much of the District’s caseload is a direct result of the crisis at the U.S.-Mexico border. Judicial resources in the District of Arizona are simply unable to keep pace with this escalating crisis at the border.”

Roll, 63, was a husband, father and grandfather, and he spent his entire legal career in public service. And while he did not shy away from controversy, he was kind and cordial on the bench, the Times’ piece noted.

Richard M. Martinez, a lawyer who had appeared before Judge Roll more than a dozen times over the years, said he admired how Judge Roll had appeared unshaken by the death threats over the rancher case.

“His commitment to making the right decisions as he saw them, to the point of putting himself at risk, was a reflection of who he was and how he acted as a judge,” Mr. Martinez said.

In the courtroom, Judge Roll was formal, civil and fair, Mr. Martinez said. “Even when he ruled against you, more often than not it was hard to argue against the decision he made,” he said. “You got a fair day in court, and that’s all you can ask for.”

Writing for The Atlantic, Andrew Cohen stressed the importance of understanding Roll’s ruling in the immigration case, and praised the judge’s fairness and courage in the face of hateful threats and vitriol.

In the aforementioned lawsuit, which came to a head in 2009, Judge Roll did precisely what federal judges are supposed to do–apply the law neutrally, treat the poor and dispossessed no worse and no better than the rich and powerful, and seek to dispense a measure of justice without fear or favor. As a result of his courage, his application of the law in circumstances he knew would be unpopular among Arizona’s loudest activists, Judge Roll was threatened with death, both privately and publicly. He and his family needed round-the-clock security from federal agents.

Here’s how Judge Kozinski and others recalled him:

“Judge Roll was a widely respected jurist, a strong and able leader of his court, and a kind, courteous and sincere gentleman. He worked tirelessly to improve the delivery of justice to the people of Arizona. He was always upbeat, optimistic, enthusiastic and positive in his outlook. He touched many lives and will be sorely missed by all who knew him – colleagues, court staff, members of the bar.”

Ninth Circuit Judge Mary M. Schroeder of Phoenix, a former chief judge of the circuit, said Judge Roll was respected and loved in both his professional and personal life.

“He was famous for being able to say so many genuinely nice things about people without having to consult notes, for he so genuinely loved people and had such a remarkable mind,” Judge Schroeder said. “Judge Roll will be greatly missed and will continue to provide inspiration for the generations of lawyers and judges who were fortunate enough to know him.”

Fair, neutral, civil, just, kind, courteous — by all accounts, Roll was exactly the kind of jurist America wants on the federal bench. But one thing really jumped out at me when I reviewed Roll’s biography: He was nominated by President George H.W. Bush on Sept. 23, 1991, and confirmed by the U.S. Senate on Nov. 22, 1991 — less than two months later.

That’s the way judicial confirmations are supposed to work. After consultation with the home state’s senators, the president nominates a candidate, the Senate Judiciary Committee gets to kick the tires, and if everyone agrees that the nominee is qualified — as was clearly the case with Judge Roll — then the candidate is quickly confirmed and put to work.

No secret holds. No hollow threats to filibuster. No cloture votes. No backroom wheeling and dealing to secure the necessary floor time for a vote.

Today, such an expeditious confirmation of a judicial nominee is unthinkable. Even noncontroversial candidates languish for months on end. Judge Roll’s inadvertently tragic advocacy to Rep. Giffords is a devastating reminder that our federal courts are suffering because of it.

While proclamations and heightened focus on judicial security are all well and good, the Senate can best honor Judge Roll by living up to its obligation to confirm qualified judges in a timely manner. This is not to say that every nominee should be fast-tracked, or that the Senate automatically sign off on whatever name the White House sends over. If a senator has a genuine issue with a particular candidate, the lawmaker should make his or her position known by voting no. But when obviously qualified, non-controversial candidates are nominated, they should be confirmed without politically motivated delays. It’s that simple.

Judge approves Spelter smelter settlement

Harrison County Circuit Judge Thomas A. Bedell today issued an order approving the settlement of the class-action lawsuit over pollution from a former DuPont Co. smelter in Spelter, W.Va.

I’ve posted a copy of the judge’s order here.

Previous news on this case is available here, here, here and here.

The judge did not yet approve the request for attorneys’ fees and costs or resolve a dispute between DuPont and the residents’ lawyers concerning administration of a medical monitoring program.

Thoughts on the (new) 4th Circuit

Thanks to Saturday’s confirmation of North Carolina Judge Albert Diaz, the U.S. Court of Appeals for the 4th Circuit now has 14 of its 15 seats filled, its highest complement of judges in years. I thought now would be a good time to check in with Carl Tobias, a law professor at the University of Richmond and an expert on the nomination process.

Obama’s four appointees have changed the makeup of the court, which now has nine judges who were nominated by Democratic presidents and five by Republican presidents. However, it’s too soon to conclude that the 4th Circuit, which has the reputation for being one of if not the most conservative Circuit Court in America, has shifted dramatically, he warned.

“I don’t think there’s much of a story in terms of a radical change in terms of the direction of the court,” Tobias told Sustained Outrage. “[The party of the nominating president] is a pretty crude instrument for measuring how people will vote on cases.”

All four — Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis — were already sitting judges, and it’s unlikely to expect any of them to depart wildly from their substantial judicial records, he said. Any shift is likely to be very incremental, but it’s too soon to draw any conclusions, he said.

“If you take their reputations, I think it’s clrea that the four of them are less conservative than the court was before. But how much so, I have no idea,” he said.

In two years, Obama has now placed more judges on the 4th Circuit than George W. Bush did during his eight years in office. Tobias said that the two president have varied in their approaches to filling the vacancies, with Bush holding steadfastly to his nominees who were suggested by the White House. In contrast, Obama has shown substantial deference to the home-state senators for each vacancy, making the Senate more willing to confirm his nominees, he said.

“Part of it was he was willing to listen to the senators, very much so,” he said. “It’s a lesson in how to successfully conduct judicial selection in the 4th Circuit.”

As it did under Bush and Bill Clinton, the number of judicial vacancies has soared over 100 during Obama’s first term. But unlike his immediate predecessors, Obama has not succeeded in quickly reducing that number from its peak, with the number of vacancies staying over 90 or so for the last 16 months, Tobias noted. It is this long period of many vacancies that has put such a strain on the federal court system, he said.

“There just hasn’t been a major dent in [the high number of vacancies], and that’s what’s troubling,” he said. The difference has been the loss of the tradition of confirming well-qualified, non-controversial district nominees.

“That tradition was honored forever, and I don’t think it is anymore. That has contributed substantially to what we’re seeing now,” he said.

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Senate confirms Diaz

The U.S. Circuit Court of Appeals for the 4th Circuit has a new judge. Today the Senate unanimously confirmed Albert Diaz, 50, of North Carolina, making him the first Latino in the court’s history.

Diaz’ nomination had been pending since Jan. 28, which had been the longest active wait of any of President Obama’s judicial nominees. Diaz’ confirmation means that the 15-seat panel, which sits in Richmond, now only has one vacancy. Four of the 14 judges (Diaz, James A. Wynn, Barbara Milano Keenan and Andre M. Davis) are Obama appointees.

A very busy Senate also took the time Saturday to hold a roll-call vote on Ellen Lipton Hollander, confirming her as a district judge for Maryland by a tally of 95-0. Sen. Joe Manchin, D-W.Va., was one of the five senators who didn’t participate in the vote.

Diaz becomes the 4th Circuit’s third judge from North Carolina, the biggest state in the court’s jurisdiction. Virginia has four judges on the panel, Maryland three, South Carolina two and West Virginia two (M. Blane Michael and Robert B. King, both Clinton appointees). The seat that is vacant was formerly occupied by Judge Karen J. Williams of South Carolina, who retired in July 2009.