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Blue Eco Legal Council Finds Elena Kagan Unfit To Be Supreme Court Justice

Chicago - May 10, 2010

Our group sued the FBI for violating federal environmental law by discharging lead bullets into Lake Michigan. The DOJ advanced the legal argument that there are discrete areas of the lake such that we have no standing for its discharges 13 miles to the north. We asserted that the lake rotates to the south and therefore have standing. The DOJ attorney on appeal even denied lake rotation on direct questioning in the 7th Circuit during our appeal of our dismissal. After the 7th Circuit affirmed our dismissal we obtained a 1986 Navy environmental assessment that DOJ withheld despite the district court order to produce. The document stated that the government (and the DOJ attorneys who reviewed and withheld it) knew about lake rotation. This amounts to perjury and obstruction of justice. We therefore filed a motion for rehearing en banc alleging obstruction by the DOJ for asserting legal theories in reliance on withholding a document proving the opposite was true. Elena Kagan was the solicitor general at that point and did not see fit to file a response to our petition. We filed a complaint with the office of professional responsibility shortly thereafter, around November 2009 but to date they have not even confirmed receiving our complaint.

We then obtained funding from Freshwater Future, an environmental 501(c)(3), to file a petition for certiorari with US Supreme Court. Elena Kagan once again failed to file a response to our allegations that the government win was based on deception and fraud, and that based on the facts now exposed we do have standing because the lake will bring the pollutants towards our drinking water.

Elena Kagan has not shown honor as she stood by and watched the Department of Justice obstruct justice, violate our rights, and allow the government to continue violating the law by discharging its lead waste into Lake Michigan. This is someone who obviously has little regard for the law, the legal system, or fair play.

Citizen Group Petitions Supreme Court in Case Charging FBI with Discharging Toxic Lead Waste into Lake Michigan

FOR IMMEDIATE RELEASE

Chicago – January 12, 2010

The Blue Eco Legal Council today filed a petition with the United States Supreme Court seeking review of the dismissal of its case against the Department of Justice, Navy, and Marines for discharging lead bullets into Lake Michigan at the FBI firearms training range in North Chicago, IL. Blue Eco had asked in its complaint for $35.2 million to hire a company to remove the accumulated 90 years of lead discharges from the lakebed and $20 million for damages to natural resources to fund an environmentally beneficial project.

"It is appalling to us that the courts are refusing to apply environmental statutes against the executive branch at federal facilities. The DOJ refuses to hold itself to basic environmental standards, the same standards it enforces against private facilities" said Steven B. Pollack, Executive Director of the Blue Eco Legal Council, a local advocacy group, "The President has abdicated his responsibility to uphold the law by allowing the government to violate the law."

The group claims this case raises serious questions of social environmental injustice. Why is it that low-income minority communities like North Chicago are disproportionately affected by government pollution?

From the petition: “There is no precedent for a party to be allowed to continue discharging pollutants into water because a plaintiff lacked standing. It is disturbing that the first instance involves the government and the courts are looking the other way despite evidence of obstruction of justice by the government attorneys.” Page 40.

For further information, please contact:

Steven B. Pollack, Attorney

Executive Director, Blue Eco Legal Council

P.O. Box 1370

Highland Park, IL 60035

847-436-9566

steve@ecoesq.com

www.ecoesq.com

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The Blue Eco Legal Council filed suit against the FBI, Coast Guard, Navy, Marines, and Department of Defense for discarding pollutants in the form of lead bullets into Lake Michigan and the other Great Lakes without a permit under the Clean Water Act, for creating an imminent and substantial endangerment under RCRA by not recovering 90 years of its accumulated lead discharges, and for public nuisance for damage to natural resources. The City of North Chicago, IL potable water intake is inside the range impact area and their 2006 water quality report detected lead. So do many other adjacent municipalities.

The issues are laid out in the online case filings and the supporting exhibits are hyperlinked as PDF's. Our case has now been dismissed and the dismissal upheld on appeal by the 7th Circuit. The appeals panel refused to acknowledge basic facts on the counterclockwise rotation of Lake Michigan that will carry lead contaminated sediment and water from North Chicago towards Chicago, and everywhere in between including our member's homes. Judges Manion and Tinder have to claim "Pollack drinks treated water from one discrete area while the defendants’ activities affect a different discrete area" in order to get to the desired conclusion that we are not sufficiently harmed to have standing. It is like stepping back in time where the interconnectedness of the environment was not known. I drink, shower, and brush my teeth with Lake Michigan water every day. So do many of you.

The opinion did not even recognize that the shotgun range closing and the supposed range improvements after a year closure were begun after we filed suit and filed for a TRO respectively(after finding 40 bullets had ricocheted into the park serving low income minority children next to the range). The Court creates a disincentive to bring these Congressionally authorized citizen suits through its clever use of facts and law that allow the violating party to continue violating. Who will bother to bring to light these violations in the future?

And say goodbye to the public trust doctrine because the federal judiciary has now refused to acknowledge our rights as trust beneficiaries to the Illinois portion of the lakebed for purposes of standing (effectively overruling US and Illinois Supreme Court precedent).

The only good thing to come out of this, and it is important, is shining a light on the heretofore secret operation of a federal facility polluting Lake Michigan and also how far the federal judiciary will go to deny citizen (and Congressional) oversight of the Executive. This site has been polluting Lake Michigan since 1918, the CWA and RCRA have been on the books since 1972 and 1976 respectively, and the first citizens to notice and take action were us in 2006. Unfortunately for everyone, the wrong people championed this issue. ("However meritorious their case may be, the plaintiffs lacked a constitutional basis to bring this lawsuit.")

So that is it, the constitution somehow contemplated our not being able to defend ourselves from a pollution source 13 miles away in our drinking water source.

The Government must stop externalizing its operational costs onto the environment. Operating a range according to US EPA's Best Management Practices for Lead at Outdoor Shooting Ranges costs more, just like everything else in life where organizations follow the law. Failing to recover offsite discharges saves an enormous amount of money at the expense of the environment and park safety.

This 14 acre site endangers public safety despite self-approved range improvements. This site is too small and can never be made safe according to accepted range safety guidelines. It does so in a low income minority community raising serious questions about environmental justice and why the US EPA and its attorneys, US DOJ, are not enforcing the law against themselves at this particular location. We now know citizens cannot meet the evidentiary hurdles placed by the 7th Circuit in front of our suits. So does this mean the FBI is untouchable for its violations of law despite Congress' clear mandate that federal facilities operate under the same rules as everyone else?

The FBI reopened the range the day after oral argument (when they found out the identity of the three judge panel). It is now the Obama FBI violating the law and the environmental rights of the people of North Chicago and all those to the south who use Lake Michigan as a drinking water source. It is now the Obama US EPA and DOJ who fail to protect those rights. And it is the Illinois AG and IEPA failing to act as diligent trustees of the Lake Michigan lakebed.

Updated 8/16/09

U.S. Government Navigation Map

"Lake Michigan gives the firing range the necessary impact area (see "Danger Zone" Diagram on next page)[above]. This diagram shows an area extending into the lake 4,000 yards, with a width of 3,600 yards. This area contains 2,975 acres in Lake Michigan." Real Estate Appraisal And Related Studies for the FBI of FBI Firearms Training Facility, North Chicago, IL Pg. 11, 12 (April 1986).