Windmills. Fifteen minutes into my call with Robert F. Kennedy, Jr. is hits me. Kennedy’s life can be described in terms of windmills. The famed environmental lawyer and activist has been a long-time, outspoken advocate for the use of wind power to de-carbonize the nation’s energy sources. Kennedy sees windmills as one way to break the country’s dependence on foreign oil.
But Kennedy’s eyes are not set only on the future. The environmentalist has also spent a lifetime focusing on a problem of the present, namely, the polluting of the nation’s waterways. That’s a monumental task—one that sounds like it would require an armada to have any chance of success. So it would be reasonable to think that, as a Kennedy, the son of the slain Attorney General/Senator, and nephew of the former President, has that kind of arsenal. No. It’s just the opposite. And, in fact, it couldn’t be more so. The 61 year old Kennedy has for over 30 years overseen efforts by ordinary citizens – just you and me types – to force government agencies, municipalities, the U.S. Army Corps of Engineers, corporations and others, to put an end to polluting activities. Far from an armada, Kennedy has done it with folks in kayaks. That sure sounds like windmills again -- Kennedy tilting at them. But Robert F. Kennedy, Jr. has succeeded at it.
Environmental litigation can be exorbitant in cost, highly complex and protracted. Not to mention that some defendants bring limitless resources to the battle. So how has Kennedy figured out a way for John Q. Public to take on John Q. Public Company on such a lopsided playing field? That’s what I’m on the phone with RFK, Jr. to figure out.
There is more that I could ask Kennedy. But much of it is well-known, such as his views on global warming and the internet is overrun with information about what he sees as a link between thimerosal, a mercury-containing preservative, once used widely in childhood vaccines, and neurodevelopmental disorders, including autism. On these subjects he has faced sharp criticism. Kennedy’s personal life is also not a state secret kept at Langley. His marriage last year to Cheryl Hines, the talented and beautiful actress who played Larry David’s wife on Curb Your Enthusiasm, not to mention many other roles, was widely reported in the media.
But I don’t want to ask Kennedy about global warming or thimerosal. I know how to use Google. And, besides, if I were smart enough to understand global warming or thimerosal, enough to discuss it with an expert, I would have gone to medical school. But I wasn’t. So I went to law school. And 23 years in the business has taught me that, when it comes to litigation, the Lilliputians don’t always tie down Gulliver. That’s why I’m so fascinated by Kennedy’s ability to achieve the seemingly impossible on the environmental front. I’m on the phone with Kennedy to ask for the secret ingredient. And he was happy to tell me.
Waterkeeper Alliance
Kennedy’s bone fides as an environmentalist date back a long time. He has told a story, reported in the press, about, as a young child, making an appointment to see his uncle in the Oval Office to discuss pollution. He even caught a salamander to present to the President. However, it died before the meeting. Kennedy says that the President kept repeating – “It doesn’t look well.” [A half century later a newt also didn’t fare well in its effort to reach the Oval Office.]
Kennedy was not to be deterred by the sad salamander situation. He went on receive a Masters Degree in Environmental Law from Pace University School of Law. This was preceded by an undergraduate degree from Harvard and a law degree from University of Virginia Law School.
While Kennedy has been involved in many environmental projects over his lifetime, one vehicle for affecting so much change has been organizations called Riverkeeper and Waterkeer Alliance.
Riverkeeper was founded in 1966 by recreational and commercial fisherman who sought to reverse the decline of the polluted Hudson River. The objective was to confront the polluters through advocacy and law enforcement. Kennedy joined Riverkeeper in 1984 and soon became its Chief Attorney. Today Kennedy serves as the organization’s Vice Chair and Chief Prosecuting Attorney.
Riverkeeper was the first “keeper” organization. It enjoyed tremendous success requiring hundreds of polluters to spend hundreds of millions of dollars to restore the Hudson. That spurred similar grassroots programs across the globe. And now there over 240 of these chapters around the world with various “keeper” names, such as Baykeeper, Channelkeeper, and Soundkeeper. The Keeper organizations are local, working to protect the water bodies in their community. That’s where Waterkeeper Alliance comes in. Waterkeeper Alliance is the umbrella organization that unites all of these local Keeper organizations. Kennedy serves as the organization’s president.
Waterkeeper’s website describes its mission like this: “The fight for clean water is a fight for one of the most basic and essential human rights. With water resources declining in quality in virtually every part of the world, communities everywhere are looking for ways to protect this right. Waterkeeper Alliance provides a way for communities to stand up to anyone who threatens this right—from law-breaking corporate polluters to irresponsible governments. On over 244 waterways, from the Great Lakes to the Gulf of Mexico, the Amazon to the Ganges, Waterkeepers are on patrol, in boats ranging in size from kayaks to research vessels. Part scientist, teacher, and law officer, every Waterkeeper combines firsthand knowledge of their waterway with an unwavering commitment to the rights of their community and to the rule of law. Whether they’re on the water tracking down polluters, in a courtroom advocating for stronger enforcement of environmental laws, rallying community support in town meetings, or in a classroom educating young people, Waterkeepers speak for the waters they defend.”
The Keeper organizations, formed following what is described on Waterkeeper’s website as a rigorous application process, are truly grass roots. I saw pictures on the website of folks in a dingy and small boat and, yes, even a guy in a kayak, going around patrolling the waterways on the lookout for polluters.
And these guys mean business. I did some searches on Westlaw and got some impressive numbers. Searching all federal and state cases, with the term Riverkeeper in the caption, delivered 221 cases. Many of these cases are just as you would expect from environmental ones – large, complex and tedious. And surely not everything that the organizations do, in terms of enforcement, ends up in court. And not every lawsuit leads to a decision on Westlaw.
I didn’t get into any discussion with Kennedy as to who pays for all of these efforts – both at the local and Waterkeeper Alliance level. Presumably there is fundraising involved and grants and the recovery of attorneys fees that all play a part in keeping the lights on. The Waterkeeper Alliance’s financial statements are right there on the website for the reading.
The Secret Ingredient
The Waterkeepers are clearly concerned citizens. But it takes more than good intentions to win in court, especially against a large corporate polluter or governmental entity. So how do they pull this off?
Waterkeeper Alliance’s success comes down to a confluence of several ingredients. But one of them is what really makes it work. Kennedy explained this to me in considerable detail. But it can be easily summarized.
First are foremost there needs to be an enforcement vehicle. This comes in the form of numerous environmental statutes, many passed after 1970’s Earth Day. But having statutes on the books that outlaw polluting isn’t enough. Someone needs to enforce them. The key to enforcement is that many of the statutes contain a citizen provision, whereby a person can step into the shoes of the United States Attorney if a government enforcement agency fails to act against a polluter that is breaking the law. The citizen can litigate against the polluter for injunctive relief and penalties – in some cases in the range of $31,000 per day for every violation.
Kennedy gave me one example where a polluter had upwards of 50,000 violations, with each one subjecting them to liabilities of $31,000. I did the math. 31 x 5 is 155 and then add seven 0s and you get $1.5 billion. As Kennedy explained to me, when you sit down at the settlement table with that kind of leverage, the other side wants to settle quickly. I should say so.
But for the Waterkeepers, securing injunctions to prevent polluting is a big part of their objectives. Indeed, the pursuit of injunctive relief, and not private party damages, is why Kennedy told me that the availability of insurance dollars is not a factor when considering whether to bring a case. When a lawyer says that his objective is not to recover private party damages, you know he’s serious about the cause. Incidentally, I let Kennedy know that the insurance industry has made some considerable contributions to environmental clean-up – albeit not without the need to resolve some novel coverage issues. He expressed his appreciation.
So there is opportunity – statutes that contain citizen enforcement provisions. But it still takes means to pull all of this off. No matter how well intended the guys in the boats are, someone still needs to know how to get from A to B. This is where the provisions in the environmental statutes, that award attorney’s fees to a successful party, come into play. “It makes it easier for the guy in a kayak,” Kennedy said, to get an attorney if he can tell him that it isn’t just pro bono but “you are going to get paid at the end of this.”
Getting lawyers to take cases involving statutes with attorney’s fees provisions isn’t novel. But Waterkeepers is different. This is where I learned the Waterkeepers’s secret ingredient. It is a network. Or an alliance, as the name says.
First, Kennedy explained to me that the Waterkeepers, with their long history, sophistication and expertise, have been able to cultivate a large stable of experienced attorneys around the country who are willing to bring the cases. These attorneys understand the strategy and tactics and expectations that are necessary.
Second, besides working with experienced attorneys, Waterkeepers offers attorneys an opportunity to bring a case even without any experience in the environmental arena. That sounds scary, especially when you look at some of the opinions on Westlaw. But Kennedy was confident that, as long as an attorney has some litigation experience, they can do it because the Waterkeepers can walk them through the case, every step of the way, from beginning to end. With 250 Waterkeepers suing polluters, they have seen and done it all, Kennedy told me. He rattled off a laundry list of types of environmental cases that Waterkeepers have handled. Waterkeepers is there to provide attorneys with forms and sample motions and assistance is just a phone call away. Kennedy noted that some lawyers call every day, or even several times a day, particularly when they are in settlement negotiations. And as for that part about lawyers taking the cases, because of the statutory fee provisions, Kennedy said that sometimes after they win they donate the fees back to the organization.
Obviously this is all easier said than done. But Kennedy convinced me that, given the legal tools available, in conjunction with the benefits that come from a large network of like-minded individuals with the same goal, the guy in the kayak really can spot a polluter and do more about it than just wish it away.
Waterkeepers’s Successes
I asked Kennedy for some of the big successes that the Waterkeepers have achieved. He mentioned many. Two sounded particularly interesting and Google made it easy to learn more about them.
In 2006, a settlement of two lawsuits, filed in 2001, by Waterkeeper Alliance, Neuse River Foundation and Lower Neuse Riverkeeper, against swine facilities that are owned and operated by a subsidiary of Smithfield Foods, resulted in the funding of major programs to, among other things, identify and eliminate potential lagoon risks to groundwater, the drinking water source for most rural North Carolinians. The issue is related to the use by swine facilities in North Carolina, and many other states, of a lagoon waste management system to collect and biologically treat animal manure, which then is sprayed onto fields as fertilizer. In addition, the settlement included enhanced manure management measures at approximately 275 of Smithfield’s hog production facilities.
In 2012, a settlement of litigation was reached between the City of Malibu, Santa Monica Baykeeper and the Natural Resources Defense Council to significantly improve beachwater quality along the Malibu coastline for millions of annual beachgoers by reducing stormwater pollution before it reaches the ocean. An NRDC press release, announcing the settlement, states that “[b]eachwater pollution nationwide causes a range of waterborne illnesses in swimmers including stomach flu, skin rashes, pinkeye, ear, nose and throat problems, dysentery, hepatitis, respiratory ailments, neurological disorders and other serious health problems. For senior citizens, small children and people with weak immune systems, the results can be fatal.”
The Lone Gunman
Like millions of others, I’m fascinated with the question of who killed President Kennedy. This was my first time speaking to a member of the Kennedy family and I can’t imagine too many more opportunities presenting themselves. So I couldn’t get off the phone without asking Kennedy about the assassination of his uncle. I wouldn’t have gone down this road if not for the fact that, two years ago, Kennedy discussed the subject with Charlie Rose in Dallas as part of a program associated with the 50th anniversary of the President’s assassination. Kennedy told Rose that the evidence is “very, very convincing that it was not a lone gunman.” Not to mention that Kennedy stated that his father, while publicly supporting the Warren Report, was privately dismissive of it – calling it a “shoddy piece of craftsmanship.
But nothing in the media reports of the Charlie Rose program went further and discussed what Kennedy thought the rest of the story was. So I asked him. All he offered was that the Warren Report left people with unanswered questions. In general he didn’t have any interest in discussing it.
I knew it was a long shot that Kennedy would get into a discussion with me of the grassy knoll, Oswald’s mob ties or a frame-by-frame dissection of the Zapruder Film. But this was my one chance. So I took it. After all, Bobby Kennedy taught me that sometimes tilting at a windmill isn’t so crazy.