More than a quarter-century after the Maine People’s Alliance first complained that an Orrington chemical plant was poisoning the iconic Penobscot River, and 14 years after we joined with the Natural Resources Defense Council in filing a lawsuit, we’re still struggling to get a corporation to clean up the mess it left behind. Our next — and, we hope, final — round begins in federal court in Bangor on Tuesday.
The principle at stake in this case is clear: “Polluter pays.” But actually making the polluter come up with the money takes far too long.
The first round ended a dozen years ago, when U.S. District Court Judge Gene Carter ruled against the defendants, HoltraChem Manufacturing Company and Mallinckrodt Inc. In his opinion of July 29, 2002, he found that “Mallinckrodt’s actions at the plant site” were responsible for the elevated methylmercury downriver, which “may present an imminent and substantial endangerment to public health and the environment.”
Pointing to that damage south of the plant, Carter wrote that Mallinckrodt had violated the Resource Conservation and Recovery Act, the statute that gave us as private citizens the power to file the lawsuit. His most important finding was that Mallinckrodt had to pay for an independent study to determine whether remediation was necessary and feasible, and if it was, to come up with a plan to clean up the mess.
The study took until last year to complete, and in the end, the high-level scientists who conducted it agreed unanimously that the damage to the river is profound. They recommended an extensive remediation. That’s what this round of the lawsuit is about: holding the only remaining defendant, Mallinckrodt, accountable for that expensive process.
No one knows yet how much the remediation will cost. That, of course, helps explain why Mallinckrodt has been willing to invest so heavily in legal fees. Many polluters engage in this cynical calculus: They weigh the expense of lawyers against the possible costs of actually cleaning up the environment that they have fouled, and they opt to spend their money on lawyering and hope for the best.
But “the best” for the polluters is the worst for the environment. That leaves private citizens depending on the help of experienced advocates like Natural Resources Defense Council to help them swing the legal big stick that the Resource Conservation and Recovery Act provides.
It’s deeply fair that private citizens can bring corporate polluters to justice in court. It is, after all, private citizens who bear the burdens of the pollution. That includes the members of the Penobscot Nation, who have lived in the river’s vast, 8,600-square-mile drainage basin for uncounted centuries, and whose language gave the river its name. It includes lobstermen who have harvested lobster and fed it to their families for many years, but can no longer take it from a seven-square-mile area where the river meets Penobscot Bay. The state closed that area to lobster and crab fisheries in February.
The pollution also hurts anyone who eats Penobscot River fish. The scientific studies that Carter, the U.S. District Court judge, ordered found that nine metric tons of mercury linger in the ecosystem today, at high levels.
Mercury is a neurotoxin particularly dangerous to the developing nervous systems of the newest members of the species homo sapiens. “A pregnant woman could not eat a single Penobscot fish in the measured range without endangering fetal health,” Carter wrote.
It also endangers the bird and fish species whose life cycles depend on the river. Mercury levels in the blood and feathers of some birds who feed in Penobscot marshes are obscenely, world-record high.
Two factors make the stakes in this trial breathtakingly high: the vast extent of the downriver damage, plus the precedent that a verdict for the plaintiffs will set, by forcing a polluter to clean up such a large stretch of river. Those who care about preserving the environment will be rooting fiercely for the Maine People’s Alliance and Natural Resources Defense Council to prevail.
On the other side, you can bet that corporations who have fouled the planet, but stubbornly resist paying for the cleanup, will be rooting just as hard for Mallinckrodt. Count on this: We plan to do everything we can to make the polluters pay.
Jesse Graham is the executive director of the Maine People’s Alliance.