Trump short-lister backs cereal maker in contamination case

By Robin Bravender | 05/23/2016 01:12 PM EDT

One of the judges Donald Trump is eyeing for a Supreme Court nomination rejected a class-action lawsuit over hazardous waste buried decades ago by General Mills Inc.

Judge Raymond Gruender of the St. Louis-based 8th U.S. Circuit Court of Appeals joined two of his colleagues last week in an opinion siding with General Mills and reversing a lower court’s decision to allow a class-action lawsuit in the environmental contamination case. Gruender, a George W. Bush appointee, was among the 11 judges named by the presumptive Republican presidential nominee on a list of possible judges he’d nominate to the Supreme Court.

The case involves property owners who sought to bring a class-action lawsuit against the food manufacturing giant over contamination in the Como neighborhood of Minneapolis. General Mills operated an industrial facility in the area from about 1930 to 1977, and the company buried as much as 1,000 gallons of hazardous substances per year at the site from 1947 until 1962, according to court documents. Local property owners claimed that General Mills released the harmful chemical trichloroethylene (TCE), threatening residents’ health and hurting their property values.

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The three-judge panel on the 8th Circuit said that the case didn’t meet the legal standards for a class-action lawsuit and that a lower court had erred by certifying a proposed class.

"Although there may be common matters in this litigation that can be decided on a class-wide basis, we think it is clear that individual issues predominate the analysis of causation and damages that must be litigated to resolve the plaintiffs’ claims," the opinion issued Friday said. "This matter is thus unsuitable for class certification … and the district court therefore abused its discretion in certifying the class."

General Mills has been conducting groundwater cleanup on the site with federal and state officials for nearly 30 years, according to court documents, and has installed so-called vapor mitigation systems to prevent the intrusion of TCE into buildings above contaminated areas. One of General Mills’ experts told the district court that 327 homes in the Como neighborhood had soil vapor testing and didn’t have detectable TCE concentrations; General Mills installed mitigation systems in 118 homes in the neighborhood.

According to U.S. EPA, TCE — used as a solvent and refrigerant — is a toxic chemical that can cause cancer in humans. Acute concentrations of vapors can irritate the respiratory system, and prolonged exposure can harm the liver, kidneys and central nervous system.

General Mills argued in its appeal to the 8th Circuit that a class action wasn’t warranted due to the "exceedingly complex issues of injury and causation unique to each of the proposed plaintiffs in this class," according to the opinion written by Judge Clarence Beam, a President Reagan appointee. Another Reagan appointee, Judge Roger Wollman, also signed onto the opinion.

Before joining the 8th Circuit in 2004, Gruender was an assistant U.S. attorney for the Eastern District of Missouri and was the Missouri state director for Republican Bob Dole’s 1996 presidential campaign.

His record — like those of the other 10 judges on the list — has become fodder for environmentalists and other liberal groups warning that Trump shouldn’t fill the current Supreme Court vacancy or any others that may arise during the next presidential administration. Conservative legal experts and Republicans, however, have lauded Trump’s list, which he released in order to quell concerns on the right about whom he might pick to replace the late Justice Antonin Scalia (Greenwire, May 19).

The Washington Post‘s editorial board slammed Trump last week for his unusual move of releasing a list of potential Supreme Court picks.

By doing so, the board said, "Mr. Trump has practically guaranteed that none of the judges he offered will be seen as fair over the next several months, their every ruling scrutinized for evidence that they are applying for the job — even if they try to conduct their duties evenhandedly."

The editorial board similarly criticized Democratic presidential candidates for describing judicial "litmus tests" they would use to select candidates for the high court, saying doing so "puts the country on a dangerous path."

Before Trump’s list, "Sen. Bernie Sanders (I-Vt.) said that if he won the presidency, he would ask President Obama to withdraw Judge Merrick Garland from consideration for the court so that Mr. Sanders could nominate someone who has publicly committed to overturning the Citizens United ruling on campaign finance," the editorial said. "Former secretary of state Hillary Clinton promised that she would have ‘a bunch of litmus tests’ for her judicial nominees, including on Roe v. Wade, same-sex marriage, the Voting Rights Act and, yes, Citizens United, too."

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