A law firm singled out by the Trump administration last month for filing questionable Clean Water Act citizen suits is pushing back, calling the accusations "offensive."
Brodsky & Smith LLC says the Justice Department made "erroneous" claims and engaged in a "clear overreach" when it filed court documents raising concerns about the firm’s practices.
DOJ’s objective is "to limit overall citizen suit enforcement" under the Clean Water Act, the Pennsylvania-based firm charged.
The Clean Water Act’s citizen suit provision allows individuals and environmental groups to file litigation against both EPA and private parties for alleged violations of the law’s permitting requirements. Most citizen suit litigation against companies ends up being settled.
Last month, the Justice Department filed statements in three ongoing citizen suits that Brodsky & Smith brought on behalf of California citizens against companies alleging violations of stormwater discharge limits.
While DOJ occasionally weighs in on Clean Water Act citizen suits and settlements, the department’s action was extremely rare. The government said it was concerned not only about the proposed consent decrees Brodsky & Smith brokered in the three lawsuits, but also about the sheer volume of Clean Water Act activity initiated by the firm in the past two years.
DOJ said Brodsky & Smith had filed 158 notices of violation (NOVs) against companies since June 2016, most of them resolved outside of court. In the past two years, the firm has made nearly $700,000 in Clean Water Act-related attorneys’ fees, according to DOJ.
"The United States has not identified any firm, solo practitioner, or organization having filed a similar volume of citizen suit actions in a similar timeframe over the 41-year history of CWA citizen suit litigation," the department said (Greenwire, May 24, 2018).
But in their motion — filed Monday in one of the three lawsuits in the U.S. District Court for the Central District of California — Brodsky & Smith attorneys rebuked DOJ for implying there was something nefarious at play "based upon nothing more than the number of NOVs issued by Plaintiff’s counsel."
DOJ "speciously questions if ‘financial concerns may be taking precedence over substantive CWA issues and environmental harm," the firm’s motion said. "The Statement fails to set forth any evidence whatsoever to support this offensive claim."
The firm acknowledged that it had filed 158 notices of violation against companies on behalf of 38 plaintiffs.
But it said 18 of those notices resulted in lawsuits over the past two years.
"Clearly, the filing of 18 lawsuits over a two-year period is not overtaxing on Brodsky & Smith, and provides absolutely no basis for ‘extra scrutiny,’" the firm wrote.
‘Distorted interpretation’
With offices in Pennsylvania, New Jersey, New York and California, Brodsky & Smith handles mergers and acquisitions, shareholder complaints against corporations, civil rights and consumer protection litigation, securities class actions and catastrophic injury lawsuits.
In the environmental arena, the firm says it represents "citizen enforcers seeking removal of toxic chemicals from everyday products, pollutants from our waterways, and protection against improper land use plans or practices."
In the specific lawsuit at issue, Brodsky & Smith is representing California resident Gary Lunsford, who says stormwater discharges from a plumbing and supply foundry operation in Los Angeles are impairing his enjoyment of the Los Angeles River and its tributaries.
The firm says its investigation showed high levels of aluminum, copper, zinc and iron in stormwater discharges from 2011 to 2016, as well as high levels of nitrite nitrogen some years. The lawsuit brought in 2016 charged that the operators — Arrowhead Brass and Arrowhead Brass & Plumbing LLC — failed to adequately test for all required pollutants.
According to the lawyers, the alleged violations stemmed from the company’s failure to have an adequate stormwater pollution prevention plan, to implement best management practices and to have proper monitoring and reporting plans.
But DOJ has raised a number of questions about the suit, including that the allegations were vague.
"The United States does not see sufficient facts alleged to allow it to assess the appropriateness of these claims," DOJ wrote about the lawsuit.
And the government says a proposed consent decree reached with the company has weak enforcement mechanisms, creates confusion about permit requirements and contains money for an environmental project that isn’t related to the violations at hand.
The department also contends that the firm had failed to justify attorneys’ fees, costs and other payments. DOJ specifically says it’s concerned that Lunsford would receive $15,000 and his attorneys $76,500 "for little documented environmental benefit."
But Brodsky & Smith slammed the government for "disingenuously" stating that the plaintiff would receive payment through the settlement. It says the $15,000 is going to the firm, and not to Lunsford.
"The DOJ should know that Plaintiff will not be receiving any monies from the [consent decree]," the firm said. "The determination to lead off its statement with such a distorted interpretation of the [consent decree] is nothing more than a transparent attempt to color the Court’s opinion with a statement the DOJ should know not to be true."
The firm defended the attorneys’ fees contained in the agreement, which it says was negotiated through the district court’s mediation program.
In a separate document filed Monday, Brodsky & Smith says it has already put in nearly 270 hours of work on the case worth $159,259.50 and spent $6,843 on experts and other costs. After subtracting total and future expected costs, the firm says it will come out in the negative with the consent decree.
Brodsky & Smith also pushed back on DOJ’s contention that the alleged Clean Water Act violations are unclear.
That claim "is so patently incorrect that it can only have resulted from a failure to read the [notice of violation]," the firm says.
"Plaintiff has clearly established both specific permit violations and his right to sue under the CWA," the motion says. "These permit violations are not general or unclear. As set forth in the NOV, they are not a one-time issue, but instead have reoccurred every year since at least 2011."
