Measure’s Foes Woo Governor;

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Environmental groups say an initiative that seeks to limit frivolous lawsuits would make it more difficult to uphold anti-pollution laws.

Los Angeles Times

A coalition of environmental groups is trying to enlist Gov. Arnold Schwarzenegger‘s help to head off a ballot measure — aimed at stopping frivolous lawsuits — that the groups argue would make it much harder to sue to uphold environmental laws.

The November measure to limit lawsuits creates a dilemma for Schwarzenegger, who may be forced to choose between the interests of environmentalists and those of businesses that are sponsoring the measure. The governor has cultivated both constituencies since taking office.

The measure would weaken a state law that allows private groups and government prosecutors to sue businesses for polluting the environment and for engaging in misleading advertising and other unfair business practices.

Businesses bankrolling the ballot campaign, including British Petroleum, Microsoft, Bank of America and General Motors, argue that the law allows unscrupulous lawyers who are seeking lucrative settlements to file suits without representing actual clients hurt by the alleged unfair practices.

Backers of the measure have raised more than $7 million, according to records filed with the California secretary of state.

The coalition, which includes the Sierra Club, Natural Resources Defense Council and Communities for a Better Environment, recently asked Schwarzenegger to resolve the dispute before the fall election by pushing for a legislative compromise.

The coalition argues that California can prohibit frivolous “bounty hunter” lawsuits by profit-hungry attorneys, yet still permit environmental groups to sue businesses to enforce air and water laws on behalf of the public.

If voters approve the measure, the current law would be drastically curtailed. Private attorneys could file the suits only if they could show that they represented clients who had been harmed by unfair business practices.

State and local prosecutors, however, could still file suits that target such practices.

Private attorneys also could file the suits if the legal issues involved Proposition 65, a state law that requires public health warnings for many toxic chemicals.

Nonetheless, environmental groups said the measure, if approved, would severely limit their ability to file enforcement lawsuits.

They said that if the measure had been law, they would have been unable to file suits that led to the cleanup of oil company pollution in San Francisco Bay, the removal of lead from drinking water fixtures and the fining of a ski resort that had cut down trees to expand its runs.

Business groups said such cases often cite violations of other laws and can proceed without alleging violations of the unfair business practices statute that is targeted by the measure. But environmental groups argue that the law that would be weakened is one of just three that specifically allows private groups to sue to enforce the state’s clean air and water standards.

Conservationists said that even Schwarzenegger’s environmental protectionsecretary, Terry Tamminen, had served as a plaintiff in one such action during the mid-1990s, in which Chevron‘s El Segundo refinery was accused of failing to reduce toxic emissions from the loading of oil tankers.

At the time, Tamminen was head of the environmental group Santa Monica Baykeeper.

“We’re not saying there is not a problem — clearly, some lawyers have effectively resorted to blackmail — but there needs to be a way to protect the environment and public health,” said Joe Lyou of the California Environmental Rights Alliance, who was a plaintiff in the refinery suit with Tamminen and lived next to the facility.

Chevron eventually settled the suit, which also alleged violations of numerous other state and federal laws, and agreed to change its practices to reduce pollution.

“Unfortunately, we don’t always have the science to prove beyond a doubt that specific individuals are being harmed.” Lyou said. “But that fact should not prevent us from taking someone to court to stop them from polluting. The bottom line is that businesses should be held responsible for what they do.”

Schwarzenegger spokeswoman Margita Thompson said the governor had not taken a position on the measure. However, she said, the governor believes that something must be done to curb unwarranted lawsuits against California businesses by attorneys who are seeking lucrative settlements.

“He strongly believes in ending shakedown lawsuits,” Thompson said. “Reforming [the law] addresses serious issues for California business, and it should not prevent environmental lawsuits as long as the cases can be justified.”

Schwarzenegger alarmed environmental and consumer groups last month when he appeared to indicate support for the premise behind the measure during a meeting last month with the measure’s chief sponsor, the California Chamber of Commerce.

“If Schwarzenegger is going to claim to be a different kind of Republican, this is the litmus test,” said Jamie Court of the Foundation for Taxpayer and Consumer Rights in Santa Monica, which is organizing opposition to the measure. “This is not a small-business initiative, it is a power grab by big businesses. This initiative throws the baby out with the bathwater.”

Chamber of Commerce President Allan Zaremberg said the group was tired of trying to seek relief from the lawsuits in the Legislature, and was prepared to press forward with the measure.

“We’ve spent eight years trying to get something through the Legislature, and even when [lawmakers] admit there is a problem they do absolutely nothing,” Zaremberg said.

Environmentalists’ concerns, he said, are “a little more propaganda than reality.”

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