'Let's Sue the Bastards!' (or, 'Why Litigation Works')
by Russell Long

Years ago, Herbert Chao Gunther, the director of the Public Media Center, told me that suing one's adversaries in an environmental campaign is a great tactic because it not only provides a real opportunity to achieve victory, but it forces the other side to respect you.

Herb's time-tested words have been proven true for Bluewater Network. In the past five years, we've found that suing corporate polluters and obstructionist regulatory agencies elevates the status of a campaign that might otherwise just be considered a minor thorn in someone's side. It also forces the opposition to expend valuable time, expense and effort fighting our attack, both legally and in the court of public opinion.

Legal fights also provide a fabulous media hook, which has allowed Bluewater to tell the world our side of the story. This was just as true in our first lawsuit in 1996 as in our recent ones.

Our first (and still ongoing) campaign was a battle against recreational marine engine manufacturers who were dumping 150 million gallons of fuel a year into the nation's waters from the antiquated two-stroke engine designs powering their jet skis and outboards.

Bluewater Network hit them with a double dose of trouble, suing both the Environmental Protection Agency (EPA) for ignoring our petition to ban these engines, and nine marine engine manufacturers for ongoing sales.

We held a heavily attended press conference to announce the suits, during which we exhibited two clear plexiglass water tanks One contained a dirty two-stroke engine and the other held a clean-burning four-stroke. Running the two-stroke for 30 minutes left a large oil slick in its tank--an image that was broadcast across the country on CNN. This image served as a wakeup call for an industry that had never before been aggressively pursued by an environmental organization.

Our lawsuits led to invitations to debate marine engine manufacturers before the nation's most important boating journalists at a national boat show. We were asked to submit op-eds to national magazines and to provide expert testimony for banning two-strokes in Lake Tahoe and other sensitive waters. These efforts culminated in a ban on the sale of conventional two-stroke jet skis in California and the development of a marine eco-label program that is now used across the nation. The suits against the manufacturers were finally settled for $300,000, which Bluewater redistributed to other environmental organizations.

When the Royal Caribbean-owned cruise ship Mercury dumped pollutants including detergents containing lead, cadmium, and arsenic into San Francisco Bay, it gave us the opportunity to tell the media about the millions of gallons of treated and untreated sewage and other cruise ship waste dumped into US waters every day. Bluewater sent Royal Caribbean a notice of intent-to-sue but, before we filed our claim, the US Department of Justice stepped in to take over the case. Media attention generated by the incident helped Bluewater get legislation passed in California and Alaska that should significantly reduce cruise ship pollution.

Bluewater also sued the EPA for refusing to reduce the tremendous levels of air pollution from the world's biggest ships, including oil tankers, container ships, and bulk carriers. These ships cause a staggering 14 percent of all global nitrogen-oxide pollution, which causes smog in port and at sea. It also causes 16 percent of all sulfur pollution from petroleum sources, which leads to acid rain, climate change and public health problems for vessel crews, dockworkers and people who live near major shipyards and port facilities.

When Bluewater settled its suit on January 16, the news was carried nationwide, helping to educate people about this unreported dark-side of international trade.

On December 20, Bluewater settled a suit against the National Park Service for allowing continued jet ski use in 21 national park units. The settlement will require those units to ban jet skis unless environmental impact reports can demonstrate that these craft will not cause environmental damage or otherwise impair those units for future generations.

This will be a heavy burden for the jet ski industry to overcome and will hopefully lead to a total ban within the park system. The media exposure helped us reinforce the message about the extreme environmental problems that these craft cause, and to publicly remind the agency that their primary mission is to make resource protection Job Number 1.

On December 22, Bluewater and Ocean Advocates won a lawsuit against the US Coast Guard (USCG) for ignoring the Oil Pollution Act. The Washington DC Circuit judges repeatedly admonished the USCG for its "blatant disregard" of the intent of Congress. The court will now force the Coast Guard to reduce the chances of oil spills by requiring shipping companies to put leak-detection devices on tankers operating in US waters. The courts also ordered the USCG to carefully consider requiring two tugboat escorts for all tankers operating in sensitive port areas. The media coverage accompanying our legal victory should prevent the Coast Guard from developing future bouts of regulatory amnesia.

Unfortunately, Bush administration policies will likely provide abundant opportunities to litigate to protect the nation's environment from coast to coast--from Alaska's Arctic National Wildlife Refuge to Puerto Rico's Vieques military bombing range.

We hope that every environmental organization takes advantage of every legal opportunity to aggressively hammer irresponsible corporations and agencies, and to use these opportunities to inform the press about critical incidents of environmental destruction. Lawsuits serve not only to provide outright environmental victories, they can also help to educate the media, cultivate sympathetic public opinion, and build valuable support.

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© Earth Island Journal, Summer 2001