For the past decade or so it has been a general practice for private law firms or non-governmental organizations (NGO) to sue companies or the government itself for violating federal environmental regulations, with no intention to go to court, but use the suits as a form of legal extortion.

This expensive game is called “sue and settle” where the plaintiffs (the clients) get some financial remuneration while the lawyers or NGOs get a bundle for “legal fees,” all without a trial. Earlier this year the Trump administration Department of Justice (DOJ) took action against Brodsky & Smith LLC, a Pennsylvania law firm, for filing what the department considered bogus Clean Water Act citizen suits against three California companies alleging violations of stormwater discharge limits.

The lawsuits (with the primary plaintiff listed) in question are:

  • In November 2016, Gary Lunsford sued Los Angeles Based Arrowhead Brass Plumbing and Arrowhead Brass & Plumbing LLC.
  • In October 2017, Luke Delgadillo Garcia filed suit against Whittier-based Miller Castings Inc.
  • In January, Alfonso Lares’ case targeted Riverside-based Reliable Wholesale Lumber Inc.

All three lawsuits alleged the same thing: that the company has been “discharging and continues to discharge polluted stormwater from the facility in violation of the express terms and conditions of Sections 301 and 402 of the Clean Water Act,” and in violation of California’s general industrial stormwater permits.

Here’s how Plaintiff 1, Mr. Lundsford, claimed to be “injured” by the actions of Arrowhead Brass:

Plaintiff is a citizen of the State of California who, through his recreational activities, uses and enjoys the waters of the Los Angeles River, its inflows, outflows, and other waters of the Los Angeles River Watershed. Plaintiff’s use and enjoyment of these waters is negatively affected by the pollution caused by Defendants’ operations. Plaintiff is dedicated to protecting the water quality of the Los Angeles River, and the overall Los Angeles River Watershed for the benefit of its ecosystems and communities.

The three companies, according to the lawsuits, engage in an outdoor operation where pollutants are exposed to rainfall. This would be laughable except for the fact that these lawyers can turn their guns on contractors alleging additional violations of the CWA.

In each case, Brodsky & Smith sought a declaratory judgment, injunctive relief, civil penalties and the award of costs, including fees for attorneys and expert witnesses. There are pending consent agreements in each case. The DOJ says that the firm had filed to justify attorneys’ fees, costs and other payments. Under the agreements, the plaintiffs would receive a total of $20,000, while Brodsky & Smith would collect $170,500.

By Wes May ECA Executive Director Email: [email protected]