Law group aims to sue Enbridge over Michigan oil spill

The Detroit Free Press

A Michigan-based environmental law group said today it plans to sue Enbridge Energy Partners over last week’s oil spill into a tributary of the Kalamazoo River, claiming financial penalties against the company could run into the millions of dollars.

Enbridge declined to comment on the potential lawsuit.

The Great Lakes Environmental Law Center, a group of environmental lawyers based in Detroit, issued a 60-day notice of intent to file a citizen suit against Enbridge in connection with the spill as required under the Clean Water Act, sending the notice to the company, the state Department of Natural Resources and Environment and the federal Environmental Protection Agency.

Enbridge reported the spill along Line 6B of its Lakehead System last Monday, saying some 19,500 barrels – about 820,000 gallons – had spilled. Some estimates have put the spill at as much as 1 million gallons.

The federal Clean Water Act prohibits the discharge of hazardous substances into the nation’s navigable waters, subject to a civil penalty of $32,500 a day or up to $1,100 per barrel of oil, according to the Great Lakes Environmental Law Center.

Using the company’s estimate, that could equate to a fine of nearly $21.5 million. The Great Lakes Environmental Law Center also notes that in cases of gross negligence, the fine can reach $4,300 a barrel.

Nick Schroeck, the law center’s executive director, said any money levied against a company for a spill is typically kept by the federal or, in some cases, the state government to help pay for clean up costs or mitigate future incidents.

The law requires the parties to be notified 60 days in advance of a lawsuit under the Clean Water Act. During that time, law center staff said they “would be willing to discuss effective remedies for the violations in this letter and settlement terms.”

Also today, a couple living along the Kalamazoo River near Battle Creek filed a federal class action complaint against Enbridge. Eugene and Gloria Volstromer claim that there was an “unreasonably delay” in reporting the spill and that residents have been forced to flee the area, “due to unbearable environmental conditions, including noxious air and the lack of suitable drinking water.”

The Battle Creek Enquirer reported Sunday that Gloria Volstromer went to the hospital on Saturday complaining of a rash, headache and upset stomach, “symptoms of overexposure to benzene.” In the complaint, the couple said testing showed benzene in the air after the spill.

The complaint asked for a jury trial and the award of damages though no amount was specified.

When Online Gripes are met with Lawsuits

NY Times

 

Justin Kurtz with his car, which was towed from his apartment complex parking lot near Western Michigan University.

After a towing company hauled Justin Kurtz’s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the towing company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

Web sites like Facebook, Twitter and Yelp have given individuals a global platform on which to air their grievances with companies. But legal experts say the soaring popularity of such sites has also given rise to more cases like Mr. Kurtz’s, in which a business sues an individual for posting critical comments online.

The towing company’s lawyer said it was justified in towing Mr. Kurtz’s car because the permit was not visible, and that the Facebook page is costing them business and had unfairly damaged the company’s reputation.

Some first amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when confronted with the prospect of a long, expensive court battle.

“I didn’t do anything wrong,” said Mr. Kurtz, who recently finished his junior year at Western Michigan University. “The only thing I posted is what happened to me.”

Many states have anti-Slapp laws, and Congress is considering legislation to make it harder to file a Slapp. The bill, sponsored by Representatives Steve Cohen, Democrat of Tennessee, and Charles Gonzalez, Democrat of Texas, would create a federal anti-Slapp law, modeled largely on California’s statute.

Because state laws vary in scope, many suits are still filed every year, according to legal experts. Now, with people musing publicly online and businesses feeling defenseless against these critics, the debate over Slapps is shifting to the Web.

“We are beyond the low-tech era of people getting Slapped because of letters they wrote to politicians or testimony they gave at a city council meeting,” said George W. Pring, a University of Denver law professor who co-wrote the 1996 book, “Slapps: Getting Sued For Speaking Out.”

Marc Randazza, a first amendment lawyer who has defended clients against Slapps stemming from online comments, said he helped one client avoid a lawsuit last year after the client, Thomas Alascio, posted negative remarks about a Florida car dealership on his Twitter account.

“There is not a worse dealership on the planet,” read one tweet, which also named the dealership.

The dealership threatened to sue Mr. Alascio if he did not remove the tweets. Mr. Randazza responded in a letter that while Mr. Alascio admitted the dealership might not be the worst in the world, his comments constituted protected speech because they were his opinion.

While the dealership did not sue, that outcome is unusual, said Mr. Randazza, who conceded that sometimes the most pragmatic approach for a Slapp defendant is to take back the offending comments in lieu of a lawsuit.

In the past, Mr. Randazza said, if you criticized a business while standing around in a bar, it went “no further than the sound of your voice.”

Do that now, however, and “there’s a potentially permanent record of it as soon as you hit ‘publish’ on the computer,” he said. “It goes global within minutes.”

Laurence Wilson, general counsel for the user review site Yelp, said a handful of lawsuits in recent years had been filed against people who posted critical reviews on the site, including a San Francisco chiropractor who sued a former patient in 2008 over a negative review about a billing dispute. The suit was settled before going to court.

“Businesses, unfortunately, have a greater incentive to remove a negative review than the reviewer has in writing the review in the first place,” Mr. Wilson said.

Recognizing that lawsuits can bring more unwanted attention, one organization has taken a different tack. The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.

Dr. Jeffrey Segal, chief executive of Medical Justice, said about half of the group’s 2,500 members use the agreement.

“I, like everyone else, like to hear two sides of the story,” he said. “The problem is that physicians are foreclosed from ever responding because of state and federal privacy laws. In the rare circumstance that a posting is false, fictional or fraudulent, the doctor now has the tool to get that post taken down.”

The federal bill, in the House Subcommittee on Courts and Competition Policy, would enable a defendant who believes he is being sued for speaking out or petitioning on a public matter to seek to have the lawsuit dismissed.

“Just as petition and free speech rights are so important that they require specific constitutional protections, they are also important enough to justify uniform national protections against Slapps,” said Mark Goldowitz, director of the California Anti-Slapp Project, which helped draft the bill.

Under the proposed federal law, if a case is dismissed for being a Slapp, the plaintiff would have to pay the defendant’s legal fees. Mr. Randazza would not disclose specifics on the legal fees he has charged his clients, but he said the cost of defending a single Slapp suit “could easily wipe out the average person’s savings before the case is half done.”

Currently, 27 states have anti-Slapp laws, and in two — Colorado and West Virginia — the judiciary has adopted a system to protect against such suits. But the federal legislation would both create a law in states that do not have one and offer additional protections in those that already do, Mr. Goldowitz said.

In Michigan, which does not have an anti-Slapp measure, Mr. Kurtz’s legal battle has made him a local celebrity. His Facebook page has now grown to more than 12,000 members.

“This case raises interesting questions,” the towing company’s lawyer, Richard Burnham, said. “What are the rights to free speech? And even if what he said is false, which I am convinced, is his conduct the proximate cause of our loss?”

On April 30, Mr. Kurtz and his lawyers asked a judge in Kalamazoo to dismiss the suit by T&J, which has received a failing grade from the local better business bureau for complaints over towing legally parked cars. Mr. Kurtz is also countersuing, claiming that T&J is abusing the legal process.

“There’s no reason I should have to shut up because some guy doesn’t want his dirty laundry out,” Mr. Kurtz said. “It’s the power of the Internet, man.”