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US pollution permits violations - a new frontier in enviromental litigation?

US pollution permits violations - a new frontier in enviromental litigation?
New Orleans attorneys from the Chafe McCall law firm kicked off the Society of Maritime Arbitrators (SMA) luncheon speaker series in midtown New York, with a thought provoking talk, replete with war stories, on the new frontiers in US environmental law.

In their talk titled “Pollution Permit Violations: The Next Frontier in Environmental Litigation against Vessel Owners”, attorneys Dan Tadros, and his colleague Alan Davis, recounted their battle - ultimately successful - against a lawsuit brought against a shipping company by a local environmentalist- egged on by a richly compensated gadfly who specializes in mounting frivolous lawsuits.

In discussing the laws in Louisiana, a leading centre for oil, petrochemical and grain shipping activities, they explained that regular citizens can bring a civil lawsuit against a shipowner under rules known as the Louisiana Environmental Quality Act, adding that throughout the country, other states may have their own versions of such laws. In the particular case, the citizen was seeking nearly $1.7m, based on an initial discharge of corn dust - swept overboard as the crew cleaned the deck of a bulk carrier while it was transiting downbound on the Mississippi River after loading its cargo.

With fines mounting at $10,000 per day, after the alleged discharge, and then afterwards for each day of “failing to report a discharge”, the issues involved are complex, involving the P & I Clubs, who would post a bond following a vessel arrest, and questions of interplay between state laws, and Federal laws.

A particular issue, as explained in the presentation, is whether compliance with the Vessel General Permit - issued by the Environmental Protection Agency, a Federal entity, allowing for certain discharges that are part of normal vessel operation - precludes citizens from filing lawsuits. In this case, which the Chafe McCall team persuaded a judge to dismiss the lawsuit, an important consideration was that “corn dust” is not found on any lists of pollutants.

Nevertheless, the attorneys wondered aloud whether such legal actions could represent an ongoing threat to shipowners transiting the Mississippi River, where the environmentalists claim to be taking video recordings of passing ships. By inference, where laws in other states allow private citizens to sue shipping interests, operators of ships transiting on rivers or in coastal reaches elsewhere need to be aware of the legalities surrounding such lawsuits.