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It’s not commonplace for two commercial litigators to perform case research while wielding paddles in a canoe. It’s all the more rare when the paddlers in question find themselves floating down a river more typically associated with urban blight than with bucolic outings: the Anacostia River. But that is where we found ourselves one glorious day in October 1999, as part of a flotilla of canoes launched by our pro bono client, the Anacostia Watershed Society. The society is a nonprofit organization, founded in 1989 to help restore and protect the Anacostia River and its tributaries, found in the Maryland-D.C. area. The watershed society has set the ambitious goal of making the river fishable and swimmable early in the 21st century. The society has over 300 members, most of whom live in D.C. and Prince George’s County. While the cleanup of the Anacostia’s “big sister” river, the Potomac, has been long-term, highly publicized, and very successful, the efforts to address the Anacostia’s problems are recent and less known. We were quite amazed at how beautiful many parts of the Anacostia are, given its status — according to one listing — as the most endangered urban river in the country. The Anacostia begins at Bladensburg, Md., where its Northwest and Northeast branches meet, and empties into the Potomac River, south of Robert F. Kennedy Stadium. The canoe trip took us past not only such familiar D.C. landmarks as RFK Stadium but also such less familiar and very beautiful places as Kenilworth Aquatic Gardens and the river approach to the National Arboretum (rarely seen from this view). Wildlife, particularly birds of all sizes and shapes, abound. However, the case we were about to embark on took us on a much longer trip. Our mission at Cadwalader, Wickersham & Taft’s D.C. office was to represent the society in litigation against a scrap recycling operation whose plant on the edge of an Anacostia River tributary had contributed to the river system’s environmental degradation for many years. The case ultimately settled with a result that was generally favorable for our client and that was protective of the environment — but only after years of hard-fought litigation of concededly novel issues. The society members pursue their goals in many ways. One way is through educational and recreational programs, such as canoe trips, designed to educate the public about the river and its plight. A particular focus of the society is underprivileged children; more than 5,000 inner-city youth have been involved in the society’s programs in the last decade. Another way is through the numerous cleanups the society organizes each year to remove tires, trash, and other debris from the river. In addition, the society regularly uses the tools made available by federal, state, and local environmental laws to pursue its goals. This often involves working with various governmental environmental agencies, but sometimes the society finds it necessary to pursue legal action in its own name. Not surprisingly, the society seeks to identify sources of pollution of the Anacostia and to persuade, or compel, those sources to remediate past harms and avoid future harm. One such source is an automobile and metal recycling plant located on Lower Beaverdam Creek, a tributary of the Anacostia located just over the District line in Capitol Heights, Md. Court documents and studies show that the recycling operation produced great mounds of rubber, plastic, metal, and other waste materials that the plant operator piled up near the shores of the creek, and that contained a large array of toxic chemicals, including metals, organic chemicals, and PCBs. These waste piles were contaminating the soil and polluting, or threatening to pollute, both the river system and the groundwater flowing into the river. Periodic fires and explosions at the facility added to the hazards posed to the environment and burnished its reputation as a major nuisance to its immediate neighbors and the surrounding community. The society monitored the plant’s operations over the years and attempted, without success, to persuade the owner to cease or at least change its operations. The state of Maryland and the U.S. Environmental Protection Agency had taken certain limited actions but not, in the society’s view, adequate to address the harm presented. Accordingly, the society began examining the possibility of instituting litigation to compel environmental cleanup. Before the society filed suit, however, the company took its own court action that required the society to consider a change in tactics. In June 1994, the plant filed for Chapter 11 bankruptcy protection in federal Bankruptcy Court in Maryland. Under the automatic stay provisions of Chapter 11, this action, at a minimum, complicated the society’s plan to pursue litigation outside the confines of the bankruptcy case. The society had been assisted for many years in its legal efforts by Professor Hope Babcock and the Institute of Public Representation, affiliated with Georgetown University Law Center. Shortly after the recycling plant filed for Chapter 11, Babcock contacted Cadwalader to ask that we serve as bankruptcy counsel and work with the institute to develop the society’s litigation strategy. This case, it was evident, would require legal representation at the arcane intersection of bankruptcy, environmental law, and litigation. We readily agreed to take on the matter. The case was important from an environmental and community service standpoint, and we felt that we were well-suited to assist because we had previously litigated environmental claims in bankruptcy on behalf of commercial clients. Following extensive consultation with the leadership of the society and with our co-counsel from the institute, we decided to pursue a bifurcated approach of litigation both in and outside of the bankruptcy case. First, we filed a proof of claim in the bankruptcy court, seeking civil penalties and attorney fees under the citizen suit provisions of two federal environmental statutes: the Resource Conservation and Recovery Act and the Clean Water Act. As best we could tell, this was the first time that a nonprofit environmental group had ever asserted citizen suit claims against a bankrupt debtor. Second, the society sent the recycling plant owner a 60-day notice letter of its intent to seek injunctive relief in federal district court to halt ongoing violations of RCRA, the Clean Water Act, and the Toxic Substances Control Act. In response, the company’s counsel asserted that the automatic stay in the bankruptcy proceeding barred such injunctive relief. In the bankruptcy court, we filed a motion for a declaratory judgment that the society was entitled to pursue its injunctive relief claims in the district court. At the same time, we sought the appointment of an examiner to investigate and report to the court on the extent of environmental contamination at the site. The society also prepared for trial of its claim for penalties and attorney fees. In these efforts, we were greatly assisted by Michael McLaughlin, an expert in environmental investigation and remediation, and by Robert Fuhrman, an expert in the calculation of civil penalties under the environmental laws. McLaughlin and Fuhrman, like the Cadwalader firm and the Institute of Public Representation, were contributing their services on a pro bono basis — subject to any recovery of attorney fees if successful. The bankruptcy court set the society’s motion for injunctive relief and the claim for hearing at the same time. True to form for litigation of all kinds, the parties agreed to an agreement in principle on the morning of trial. The agreement would have settled the society’s claims for cleanup, penalties, and attorney fees. Yet, protracted efforts to turn the agreement in principle into a binding, enforceable, written agreement failed, leading the society to file a motion with the federal District Court of Maryland to have the entire case transferred to it through a procedure known as a “withdrawal of reference.” In the meantime, the recycling operations at the site were proceeding as before. The district court granted the withdrawal motion in March 1997, almost three years after the company first filed for bankruptcy. Pursuant to the district court’s order, the society than filed a comprehensive complaint for injunctive relief to force a site cleanup and to recover civil penalties and attorney fees. Elevation of the case to the district court finally brought about a settlement after the failure of such efforts at the bankruptcy court stage. The company agreed to a site cleanup involving the removal and off-site disposal of the major portion of the waste material disposed near the edge of Lower Beaverdam Creek. It also agreed to curb many of the practices that had resulted in the explosions and the fires, and it created a fund administered by the bankruptcy court for payment over time of a portion of the attorneys and expert fees. Cleanup activities are reportedly ongoing and are subject to oversight and enforcement by the bankruptcy court. The Washington area is rich in opportunities to perform public service while developing and using the specialized skills we have nurtured as providers of complex legal services. We feel very grateful for the opportunity to have litigated a pro bono case that was in the interest of the community and the protection of our local environment, and that had the added feature of drawing on skills we had developed in the commercial arena. David F. Williams is managing partner and Geraldene Edens is special counsel at the D.C. office of New York’s Cadwalader, Wickersham & Taft.

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