The Challenges Of Litigating Coronavirus-Related Cases

We’ve already discussed how we perceive the response to COVID-19 to go: there will be an influx of new cases, some with merit, most without. And, for better or worse, we were right. The landslide of coronavirus-related cases is difficult to follow, but we’re doing our best. Other law firms and legal experts have already agreed that litigating these cases — i.e. providing liability — is the biggest challenge.

Because personal injury lawyers work on contingency (meaning we only get paid when we win a case for our clients), we tend to avoid taking on cases that are destined to fail. Sometimes, when we strongly believe in a case’s merit but aren’t sure if it will win, we might provide our services pro bono. 

A number of new wrongful death lawsuits have challenged companies like Walmart or Royal Carribean, a popular cruise line. Are they liable when a customer or employee catch coronavirus and succumb to COVID-19? Of course, the circumstances for each individual case matter most.

The legal teams for these companies have mostly all made the same argument: that is, that Workers Comp and similar legal remedies are already in place and should be utilized in place of civil litigation (something that can be time-consuming and costly for court systems). 

Congress might reduce these cases to ash before they can really get going at all, though.

Mike Duff, a professor for Workers Comp at the University of Wyoming, said, “It is entirely conceivable that federal action could immunize employers or companies even from liability of these lawsuits.”

And even if Congress does nothing to protect businesses (as unlikely a scenario as that is), there’s still the question of how we can provide that a person actually contracted coronavirus on the job and not at home or while out walking the job. No one lives at work. There’s no easy answer to that question. It might come down to the political leaning of a particular judge — which isn’t how anyone wants these cases to go.

What Will Happen To The Insurance Industry After COVID-19?

Many Americans are on the brink of financial ruin because of the flailing economy, which took a nosedive nearly as soon as it became widely known the coronavirus was in the US to stay. With the rate of infection and fatality accelerating faster everyday, things are only guaranteed to get worse. What will the country’s healthcare system look like a few months from now? And how will the insurance industry adjust to the realities of coronavirus and COVID-19?

Millions of Americans are out of work due to the worsening crisis, and a $1200 check from the government won’t change that. Most people who lose their jobs will also lose their health insurance benefits, which means they’ve been paying into a system they will never be able to use. 

Some have been comparing the system to social security. When one pays social security taxes, it doesn’t matter if they stop working — they’re guaranteed something, no matter how little. Why shouldn’t health insurance work the same way? Even if you stop paying into the pool, you were paying. So when you stop, why shouldn’t you get at least a little helping hand when you get sick?

But the system will likely never work that way.

More likely, millions of Americans will soon be pressing for universal healthcare rights. Most Americans already believe healthcare should be a right, but conservative lawmakers have stalled efforts to enact such a system while describing it as a progressive pipedream. Tell that to the millions of people who are suddenly unemployed because of the very disease about to send them to the hospital.

COVID-19 is the reason they lost their jobs and the reason they can’t pay for COVID-19 related medical treatment? The flaws of the system were apparent to millions of Americans before COVID-19, but they’ll be even more apparent to many more after the crisis is over.

The harsh reality is this: the private health insurance industry might be destined to flatline as a result of this pandemic — but that moment won’t come soon enough to help those whose bills will become due much sooner. Lawmakers will have to deal with that fallout. Americans will be worried, angry, and searching for someone to blame. Who will fall first? That’s the real question.

For now, the best we can do is prepare for the worst case scenarios by staying indoors whenever possible. Do you have an insurance claim resulting from COVID-19 medical care? Contact a qualified insurance attorney today!

Justice Department Needs More Cash To Protect Environmental Agenda

It was probably only a matter of time. We live in an era in which most people understand the need to conserve, protect, and replenish the environment we’ve always taken for granted. But the Trump administration’s environmental policies have done anything but what the majority of the American people want. Nearly 75 percent are  worried about the effects of climate change, even though half of them vote for the guy whose policies do a great deal of damage to our environment.

Many law firms have taken the fight to the Trump administration with litigation. How has that worked out? It depends on your point of view.

But the bottom line is that the litigation, while it can help protect our environment, can become a burden for the taxpayer. Why is that the case? Simple. The federal government needs a way to pay both to defend its policies and to compensate the ones who win those cases. That’s why the Justice Department recently requested an infusion of cash from Congress — to protect not the environment, but the damaging agenda of this administration.

The Environmental and Natural Resources Division (har har) asked for an additional $796,000 to protect the administration’s policies. For the first time in history, agencies tasked with protecting our environment are headed by authority figures who argue climate change is a hoax or simply a left-wing lie.

The agency said, “Virtually every significant agency action implementing this agenda has been or will be challenged. This increased workload is no longer sustainable and additional resources are necessary for ENRD to continue to be able to allow the best possible defense of the Administration’s priority actions.”

What would the money pay for as soon as the new fiscal year begins? An additional five attorneys, two paralegals, and more staff. The Trump administration called his legal response to the lawsuits a “Smart, Responsible, Common-Sense, Effective Approach to Environmental Litigation.” We can argue all day about the merits — or lack thereof.

Much of the current litigation is fighting Trump’s consistent dismantling of Obama’s climate protections orders (and everything else the man accomplished in office — if nothing else, Trump’s presidency will be remembered for its societal response to the first African American who occupied the office). 

ENRD also wants another $4 million (on top of the current budget of $109.4 million in 2020) for other adjustments that have nothing to do with legal. 

When asked for information about budgetary allocations, the Justice Department failed to respond.

Academics Worry That Trump Might Fail To Update Old Environmental Protections

When the person in charge of the Environmental Protection Agency (EPA) is a climate change denier, you know we’re in trouble. That couldn’t be more clear regarding the Trump Administration’s view of the old National Environmental Policy Act (NEPA), a Nixon-era law passed with bipartisan support in 1970. NEPA is actually one of the most copied and pasted laws on the books when we look to other countries who have tried to follow our lead.

But the Trump administration wants to change exactly how it works. 

Andrew Wheeler, the guy in charge of this new counter-intuitive EPA, said that NEPA is the “Frankenstein of a regulatory regime.” He even called it a “welfare project.”

What it comes down to is this: changing the way NEPA works would remove a lot of power the public has. NEPA has a lasting legacy. You may have noticed a lot of before and after photos popping up on social media lately. They convey the message that changing or even gutting our longest-lasting environmental protections is a mistake by showing exactly what the world looked like before they were enacted. 

Remember cities clouded by a dense sea of smog? We might soon have that to look forward to once again.

The proposed changes would accomplish a few different things, supposedly on behalf of businesses who the old NEPA regulations hurt. At the top of the list is limiting environmental impact evaluation for infrastructure-related projects like building or maintaining highways and bridges, and setting down new oil pipelines (as if we need them). 

Trump said, “In the past, many of America’s most critical infrastructure projects have been tied up and bogged down by an outrageously slow and burdensome federal approval process. These endless delays waste money, keep projects from breaking ground, and deny jobs to our nation’s incredible workers.”

But they do a lot more than that. Those regulations save us money that we’ll have to spend down the road when the environment continues to break down as we bulldoze and build over wetlands and old growth areas. 

Most importantly — but not too surprisingly — the new changes would exclude any considerations about the effects of man-made climate change. 

But that’s not the way White House allies are pitching it to the public. American Exploration and Production Council CEO Anne Bradbury described the effort in another way: “The Administration’s modernization of NEPA removes bureaucratic barriers that were stifling construction of key infrastructure projects needed for U.S. producers to deliver energy in a safe and environmentally protective way.”

The problem is, pipelines have never been very good for the environment. Plus, the energy it takes to build new platforms for coal and oil is now more expensive than to build those for renewables. Why are we bothering? It might have something to do with the fact that Trump owes those companies his presidency. They might just get him a second term.

Trump Peels Away Dozens Of Environmental Protections In Yet Another Blow To Conservation Efforts

President Trump is no stranger to fighting against environmental protections — new and old — if he believes they’re a threat to business interests around the country. Man-made climate change is nothing more than a Chinese hoax, he says, but then again — would anyone be surprised to hear that Trump couldn’t care less about the environment even if he believed humans were responsible for its rampant destruction? 

Probably not. So it should come as no surprise whatsoever that he’s dropped the headsman’s axe on the necks of over 85 environmental regulations since taking office.

He’s been sued by dozens of states for most of those attacks, and will almost certainly continue to be sued for any new ones he makes in the future. A Harvard Law tracker shows us which regulations have come under attack.

They include: Coal Ash Rule, Chemical Disaster Rule, Chlorpyrifos Pesticide Use, Defining Waters of the United States / Clean Water Rule, Greater Sage-Grouse Protection, National Monuments, Marine National Monuments & Marine Sanctuaries, Onshore Extraction Energy Leasing, Ozone National Ambient Air Quality Standards, Power Plant Effluent Limits, Clean Power Plan / Carbon Pollution Emission Guidelines, National Petroleum Reserve Oil and Gas Development, etc. 

The list continues on and on.

What does all that mean, though? For starters, around “51 percent of wetlands and 18 percent of streams across the U.S. lose their federal protections.” This is according to the Environmental Integrity Project, an organization that helps measure the consequences to some of the gutted regulations. Those waterways are some of the most important in the country, too — because they’re home to many endangered species and increase potable water quality.

It was a stark contrast to the 2015 Obama “Water of the U.S.” measure that would have increased oversight over any new laws implemented in the future, perhaps preventing Trump from gutting protections earlier this year — had it ever come to pass. Who opposed the law? Republicans, real-estate developers, and farming lobbyists. 

The Coal Ash Disposal Rule would have governed how coal ash was disposed of.

The Clean Power Plan mandates a reduction of 32 percent of 2005 levels of carbon dioxide emissions by power plants by the year 2030. Trump EPA pick Scott Pruitt proposed a repeal of the law, because, we guess, who needs clean air? The law would have also added thousands of jobs in the renewable energy sector in addition to saving the United States tens of billions of dollars in health care costs thanks to our cleaner air. 

Dozens of states and thousands of lawyers continue to fight the Trump administration’s efforts.

We’re About To Find Out How The Supreme Court Feels About The Clean Water Act

The United States Supreme Court leans conservative — and is in danger of becoming even more strongly conservative soon thanks to a health scare by Ruth Bader Ginsburg. One of the most pressing environmental issues of our times concerns the Clean Water Act. The Supreme Court will hear arguments over one Hawaii county’s apparent accidental disregard for laws regarding wastewater discharge.

The issue stems from Maui’s policy of discharging treated wastewater underground instead of the ocean, like many other municipalities. While this is an atypical solution, it’s actually considered environmentally more sound that doing what most governments do — which is discharge treated wastewater directly into the ocean.

The problem is, environmental protection groups have accused Maui’s government of accidentally disregarding the Clean Water Act’s policy that requires municipalities to apply for a permit to discharge wastewater into the ocean — all because some of Maui’s wastewater ended up there anyway.

This was discovered when the Hawaii Department of Land and Natural Resources determined that coral reefs in the region were dying at a historically fast pace. 

Hawaii Public Radio’s Ryan Finnerty said, “The Environmental Protection Agency eventually commissioned a study to find out if there was a physical link between the injection wells and the ocean. University of Hawai’i geologist Craig Glenn used colored dye to track where wastewater from the injection wells was going. He said the results were conclusive.”

The Trump administration recognizes that the discharge ended up in the ocean by accident, and no one is presenting evidence of a coverup. That’s why the Trump administration is supporting Maui County in the lawsuit that was presented to the Supreme Court earlier this month. But the Trump administration is a lot softer on pollution than basically any other presidential administration in history, and opponents have been quick to point that out.

Finnerty said, “Environmentalists say discharging pollution into groundwater is exploiting a loophole and not what Congress originally intended. But if the Supreme Court rules in favor of Maui County, that loophole could become law.”

He continued, “Hannah Bernard and other environmentalists [have already] … won twice in federal court, but in a similar case from Kentucky, a different appeals court disagreed. The Trump administration is backing Maui County in this case — a reversal from the Obama-era EPA. 

“It’s a part of a broader effort to limit federal water protections in favor of state control. David Henkin, an attorney representing the Maui plaintiffs, says the Trump administration’s stance on groundwater pollution is a departure from longstanding policy.”

If Brexit Finally Moves Forward, What Does That Mean For Environmental Law?

According to the Irish government, the Brexit fiasco could give the powers that be greater authority to effect new environmental law — or to disregard old ones. Commentators insist that Brexit won’t have these kind of catastrophic fear-mongering effects and that, for the most part, it will be business as usual once all is said and done. But that’s not necessarily true. 

The Good Friday Agreement promotes cooperation between the north and south, especially in the area of cooperation to protect important environmental locations from damage. The European Union provided the framework for this agreement, and without the former, the latter might fall apart as well.

Waterways Ireland and Loughs Agency remain dedicated to protecting their islands from those who might pollute them. 

Exiting the European Union would effectively dismantle all the regulations and agreements made through it. Not only that, but future funding efforts might be crushed. Part of the new Brexit agreement enables a “level playing field” that would force the United Kingdom to keep the old regulations in place, but it’s no surprise that opponents of Brexit and the unseen future consequences are worried how this will all play out. Without a specific trade deal, there’s no legal obligation.

The United Kingdom released a statement on the new Brexit agreement:

“The Union and UK are determined to work together to safeguard the rules-based international order, the rule of law and promotion of democracy, and high standards of free and fair trade and workers’ rights, consumer and environmental protection, and cooperation against internal and external threats to their values and interests.

“The parties will retain their autonomy and the ability to regulate economic activity according to the levels of protection each deems appropriate in order to achieve legitimate public policy objectives such as public health, animal health and welfare, social services, public education, safety, the environment including climate change, public morals, social or consumer protection, privacy and data protection, and promotion and protection of cultural diversity.”

As you can see, more is at stake than just the environment of countries within the UK.

Part of the agreement is dedicated to maintaining proper fishing standards to ensure continued sustainability of our oceans well into the future.

But there are also big question marks. That’s because there’s no actual legal framework in place to govern anything that happens after Brexit. There are only promises. Citizens of the UK are cautiously optimistic that those promises will be upheld by the politicians in power — but many who don’t support Prime Minister Boris Johnson know that anything is possible these days.

Trump Administration Accuses California Of Relaxed Environmental Regulation While Gutting The State’s Ability To Set Its Own

If you listen to the Trump administration, San Francisco is a very dirty city — very dirty — and you might step on a used syringe if you go walking on the beach. Where did it come from, you ask? Probably some addict, if we’re to believe the incumbent president. Because so many homeless citizens of the United States seem to like California sun, San Francisco is looking at an environmental violation.

Trump also says that homeless fecal matter is a threat to the Clean Water Act. 

Of course, readers should take the attacks on San Francisco cleanliness with a grain of salt — as anyone who has visited in recent years will know it’s hardly the dirtiest city in the country. Trump’s attacks are much more likely a symptom of California’s barrage of lawsuits against the obviously corrupt administration. California won’t put up with Trump tactics, and Trump can’t help but fire back — no matter how ridiculous the counterattack seems.

The San Francisco exchanges are occurring at almost exactly the same time as Trump’s revocation of California’s right to set its own air pollution standards for new vehicles. California wants to enforce stricter standards to help clean up the environment. Does Trump hate the environment? Could it be more a matter of helping out coal and oil companies, which funnel tons of cash into his election campaigns? Or could it just be about cracking down on yet another Obama-era policy?

It’s anyone’s guess at this point.

Perhaps it’s of little surprise that Trump’s Environmental Protection Agency (EPA), which is headed by someone who doesn’t believe in man-made climate change, isn’t commenting on the most recent environmental struggle between Trump and California. EPA Administrator Andrew Wheeler made it obvious in a speech delivered to the National Automobile Dealers Association, though:

“We embrace federalism and the role of the states, but federalism does not mean that one state can dictate standards for the nation,” he said. 

Right, because that’s what this is about: state’s rights vs. federal rights. 13 states, including the District of Columbia, are on board with whatever California decides to do when enforcing the tighter regulations, regardless of what the federal government says, and it won’t be a surprise to anyone if the rest of the states fall in line as well. 

California Governor Gavin Newsom said, “While the White House has abdicated its responsibility to the rest of the world on cutting emissions and fighting global warming, California has stepped up. It’s a move that could have devastating consequences for our kids’ health and the air we breathe, if California were to roll over. But we will not.”

The fight continues.

Is The Trump Administration Violating Environmental Laws To Build A Border Wall?

It’s no secret that the Trump Administration has been routinely accused of bending or breaking a multitude of laws during its short existence. Considering how important the environment is to the future — not only of our species, but also of our economy — many have questioned whether or not Trump has the interests of the environment at heart when trying to find a way to build a wall along the U.S.-Mexico border.

It was recently reported that Trump once offered to pardon anyone arrested for breaking laws to build the wall. Naturally, he backtracked by saying he was only joking. Whenever he’s accused of corruption, he’s only joking. It’s a Trump thing. He “jokes” almost every day.

It’s a scary situation for a few reasons: no matter how many laws the Trump Administration ignores, the courts seem increasingly okay with letting him have his way. Even though he publicly admitted there was no real need to call a national emergency to build his border wall, that’s exactly what he ended up doing when Congress refused to allocate the funds — and then when those same actions led to a new round of lawsuits, the courts gave him a pass. 

Why is this so disturbing?

The entire point of having three branches of government is so that one can check the others. This system of checks and balances is at its breaking point when the president can ask for money from the legislative branch, which then fulfills its purpose by denying it before the judiciary branch inevitably sides with the president — literally giving one man who flouts the law all the power. That’s somewhat dangerous since Trump was already the most powerful man in the world.

What else is Trump accused of doing?

When he told members of his staff that they would have a presidential pardon should they break the law, he promoted the idea that they should, according to The Washington Post: “Fast-track billions of dollars’ worth of construction contracts, aggressively seize private land, and disregard environmental rules.” 

One of the reasons the wall is so detested among environmentalists is because animals tend to, you know, move around. Building such a structure prevents them from moving from one habitat to the next when they need to, which puts a lot of stress on already endangered species living in the area.  

Did the Trump Administration take any of this into consideration before moving along with plans? Of course not. The Environmental Protection Agency (EPA) is now headed by a guy who doesn’t believe in climate change, and even coal and oil companies are blasting the now-defunct EPA for loosening regulations that could lead to fast-tracked man-made climate change.

No one is happy.

Atlantic Coast Pipeline Permit Deemed Irresponsible By Fourth Circuit Court Of Appeals

Dominion and Duke Energy requested a Fish and Wildlife permit in order to construct an Atlantic Coast Pipeline. Defenders of Wildlife, the Sierra Club, and the Virginia Wilderness Committee sued alongside the Southern Environmental Law Center because the requested permit would do little or nothing in order to protect potentially endangered species whose habitat is along the planned pipeline path. The permit was eventually struck down by the Fourth Circuit Court of Appeals.

The pipeline had actually been in the process of being constructed when the lawsuit forced builders to stop or face additional legal action. The pipeline would be built through national forests, where wildlife and endangered habits are both protected. Its owners even wanted the project to intersect with the Appalachian Trail.

This is a major hurdle for the pipeline’s owners because it was supposed to be completed years ago — and for several billion dollars less. It is possible that permit holders will find no feasible path forward to complete construction, which remains stalled even now.

An attorney for the Southern Environmental Law Center, Patrick Hunter, said: “In its rush to help this pipeline company, the agency failed to protect species on the brink of extinction — its most important duty. This pipeline would blast through some of the last populations of these rare animals.”

One of the major criticisms of the pipeline is the lack of necessity at a time when the environment is under attack from all sides. The construction is only necessary to increase its owners’ revenue, which is not an acceptable reason to destroy endangered wildlife or their habitats.

The U.S. Energy Information Administration (EIA) has started to aggregate data into a large database to figure out how many pipeline projects are currently underway. The database includes pipelines for oil, petroleum, and hydrocarbon gas liquids. This increased rate of domestic production — at a time when worldwide productivity is on a historic decline — has resulted in a surprising demand for new projects because it threw a wrench into aging patterns of supply and demand in the Gulf.

The database will make transparent a number of statistics about these projects, including where and when they begin, their expected productivity, how many miles of pipeline will be laid, and their potential effects. In the south, at least nine new projects for crude oil are expected to be completed from 2019 to 2021. 

The EIA is expected to perform system updates for this database twice annually.