Sharon Ryals Tamm is a volunteer researcher and blog writer for the International Marine Mammal Project of Earth Island Institute. Sumona Majumdar is Earth Island Institute’s new General Counsel and head of Earth Island Advocates, coordinating legal and litigation work for the Institute.
Sharon: It’s so exciting that you are with Earth Island now.
Sumona: I’m happy to be here.
Sharon: What are you mainly working on?
Sumona: Right now I’m busy with work for a couple of different projects. IMMP and Shark Stewards are both interested in defending against any changes to the Marine National Monuments, specifically those that are out in the Pacific Ocean. We’ve been working together to develop that case—the facts supporting our involvement in the case. And the Stanford and University of California, Irvine, Law Clinics are working on a draft complaint and other preliminary legal issues. That’s certainly part of what I’m doing, but I’m also working with a number of other projects.
We have one project called Alert—the director, Riki Ott, works very closely with fence-line communities primarily located in the Gulf of Mexico. “Fence-line” means they’re located near any kind of polluting facilities. In the Gulf, it’s the petro-chemical industry. She’s done a lot of work with communities, helping them to identify their exposures to toxics, how they can reduce that, and advocate for improvements in their environment.
A piece of that work is commenting on federal regulations and state regulations that affect their communities. In the wake of the April 2010, BP oil spill disaster in the Gulf of Mexico, the federal government updated its oil spill response regulations. Riki Ott mobilized hundreds of people to comment on those. That was during the Obama administration, and those regulations have just been sitting. Nothing has been done with them.
We’re hoping to file a petition to finalize that rule-making so that, at a minimum, the improvements of the Obama administration will go on the books, although we would also like to see even stronger regulations than what that administration proposed. The current regulations are from before the oil spill and the lessons learned, so they are very out-of-date. The petition is a legal action we’re still developing against the federal government that asks the federal government, in this case it’s the Environmental Protection Agency, to finalize the proposed rules. It’s an Administrative Procedure Act case that would argue that the federal government is required to take this action at this point.
Sharon: Were you part of creating those rules?
Sumona: No, I was not. When I was in the federal government, I was working with the Department of Justice. I was a trial attorney. My role was to represent federal agencies, specifically in environmental enforcement actions against entities, primarily companies, which were not complying with regulations.
Sharon: So how does that compare with being on this side of the equation?
Sumona: I would say being here at EII, and I think at environmental nonprofits in general, you are able to be more creative. We’re trying to push the law forward on environmental protection. When you’re in the federal government, particularly when you are an attorney representing a federal agency, you’re fighting to enforce the law, as it exists. There are a lot of layers in the federal government in terms of oversight, and a lot of coordination between the different agencies, so it usually results in you taking a more conservative approach. And now, here, we’re not just saying the law says you are in violation; we are also saying that the law should move, move here.
Sharon: How do you bring all that experience in the Justice Department to what you are doing now?
Sumona: First, I am relying a lot on the skills that I gained as a litigator. So in this role I’m not the person going into court. I’m more like the client, but I’m able to help develop those cases internally so that when we seek outside representation, it’s easier and more seamless. It’s easier to obtain representation when you have already put some thought in the front end about what the strategy might look like—What are the strengths? What are the weaknesses? And, as a former litigator, I am able to think through those questions. Just being able to have somebody devoted to working with the outside counsel makes it easier for outside counsel to coordinate with us.
Additionally, I think there is an increased desire among law firms to take on environmental cases, but a lot of these law firms haven’t done this before, so it’s very useful to have a client who can give a more complete package to them—give them a sense of where this might go, how strong or weak the case is. And, it’s helpful to have a sense up front, in order to have appropriate conversations and set expectations.
The second piece is, I’ve worked with a variety of statutes—I’ve worked with the Clean Water Act and the Clean Air Act. I worked with Superfund and RCRA (Resource Conservation and Recovery Act, which creates the framework for the proper management of hazardous and non-hazardous solid waste). So I have a pretty extensive knowledge about how these statutes work, and the regulations implementing those statutes, and what might be some stronger arguments to make, and what might be weaker arguments to make. And I’m very familiar with the agencies involved, and I think that just makes it a little bit easier for me to see and understand what’s happening. There’s a lot that’s happening, and it’s very easy to get overwhelmed. I think, because of my experience working with those agencies, it’s a little easier for me to say—this is something that I think is a big deal or might not be getting the attention it deserves.
And then, when something piques my interest, I ask, are there projects here at Earth Island that might be interested in knowing that this is happening? And the hope is that, just being able to bring some of these issues to the attention of our projects, will generate interest in litigation or other kinds of legal advocacy. I’ve been in conversations with probably at least ten projects already—some that have used litigation before, but others that haven’t. I’m just starting to get them to think about ways they might be able to use legal advocacy to further their objectives. They’re all working overtime, and they may have thought at various times that this is something that will affect their work, but they don’t know where to start in terms of legal advocacy.
Sharon: How many suits you are working on for IMMP?
Sumona: When I started, there was already the lawsuit against SeaWorld, a consumer lawsuit against SeaWorld for false advertising, in which IMMP is serving an advisory role. Additionally, IMMP is concerned about the Marine Stewardship Council (MSC) sustainable fishery label. MSC has certified that tuna from the Mexican fisheries is sustainable despite the practices that they use – catching tuna by chasing, netting and killing dolphins. So, IMMP is considering possible legal remedies.
This started before I came so I’m still just getting looped in. But I’ve taken over some of the oversight role that Dave Phillips (Executive Director of EII and IMMP) was doing before. And I’m helping develop the Marine National Monuments suit, and we’re also talking about the possibility of other litigation around the captivity of dolphins. Other than the Marine Monuments those suits are all just for IMMP.
Sharon: What are your thoughts on these suits with IMMP?
Sumona: With respect to SeaWorld, the team at Covington & Burling LLP (a San Francisco law firm doing pro bono work for IMMP on the SeaWorld lawsuit) has a very sound strategy. Again, I am taking over the oversight role and providing suggestions as appropriate. But, they are doing a great job, so I haven’t had to do much really. There’s no research in-house that needs to be done right now. That may come in the future, as we get closer to a trial date, if they need some help. But they’re still fighting over what, if any, documents SeaWorld will give them. Increasingly, in litigation, the discovery process is being used as a way to either drag out litigation or wear the other party down. But, we’re hanging in for the long run.
With the Marine Monuments, it’s still very early. We’re focused on making sure we have our facts gathered to demonstrate that we have what’s called “standing”. Basically courts require that a party that’s bringing a lawsuit have a sufficient stake or skin in the game. In environmental cases, the requirements are usually that you have visited the place in the past, that you have some plans to visit in the future, or that you are going to have an economic harm because of the action or a harm to your recreational or aesthetic interests. We need to be able to state why we are interested in what happens at the Pacific Remote Islands Marine National Monument, and how that affects us. So, I’m working with both IMMP and Shark Stewards to lay that out, and assisting with any questions generated by the law students at the University clinics representing EII, IMMP and Shark Stewards.
The Department of the Interior released recommendations to the President on ten Monuments in early December. We know which ones Interior Secretary Zinke made recommendations on, and, of course, that the President acted on two of them, Grand Staircase and Bears Ears – acting on the recommendations to shrink those Monuments catastrophically. We really don’t know what his plans are for the remainder. I suspect he will accept Zinke’s recommendations on all of them, including gutting the PRI Marine National Monument. But, it’s hard to know the timing of when he’s going to make these announcements.
With respect to Bears Ears and Grand Staircase Escalante, a number of groups immediately filed against the Trump Administration over those changes. They all filed in DC, and the Federal Government is trying to move that case to the District of Utah. So, it’s sort of in limbo right now. Nothing has really happened. .
Sharon: Do those Monuments suits halt implementation? Were they injunctive?
Sumona: No one has asked for preliminary injunctions yet. The federal government has already made some proposals about oil and minerals leasing, preparing a leasing plan in areas that are now no longer designated National Monuments in Utah. With the PRI Monument lawsuit, we have to see what the actual decision is. Certainly if the decision is to immediately open up to commercial fishing, that would essentially be undoing the Marine Monument and that would have a very quick impact, so we’d consider whether seeking a preliminary injunction is important and appropriate.
The changes to National Monuments were all happening just as I was starting with Earth Island. Both IMMP and Shark Stewards said: “We are really interested in the Marine Monuments. If they’re going to make changes we want to be involved.” So I worked closely with them to get the information about our standing and line up our representation. That’s really what the government will try to attack at the outset. We want to make sure we have standing, and get all the information over to the legal clinics so they can put it together. Other organizations also have skin in the game. Our lawsuit (to protect the Pacific Remote Islands Monument) will just be on behalf of IMMP and Shark Stewards. We also know that Earthjustice will be filing a lawsuit on behalf of some local organizations in Hawaii. What will likely happen is our lawsuits will get combined.
Sharon: So how do you feel about that suit?
Sumona: I feel pretty confident that the President doesn’t have the power to just undo National Monuments. I think that the history of the Antiquities Act is pretty clear that it was a limited delegation of power from Congress to the President to just create Monuments. If anyone is going to undo them it has to be an act of Congress. Fortunately, a bill in Congress to rewrite the Antiquities Act hasn’t gone anywhere. Obviously there are still threats beyond the President, but in the context of the litigation, I do feel pretty confident that the environmental and other organizations that are standing up to protect these Monuments are going to be successful on that issue.
And what we are seeing with the National Monuments extends to Trump’s attempts to undo regulations. Trump can’t just wipe out regulations without going through the proper process. Congress creates the statute; and then an agency, the Environmental Protection Agency, for example, makes regulations to fulfill the intention of the statute in a rule-making process. That process requires giving notice to the public, allowing comments, taking those comments into consideration, and issuing the final rule, which can then be challenged in court. They say, when both sides are challenging the rules, you’ve got the right balance. The same process is required for undoing a rule—to vacate, rescind, or change—it’s the same. Trump has tried unsuccessfully to get around this. What actually happens is different than what he says. Look at what is happening with the travel ban and DACA—courts are saying that the government established rights. And so Trump can’t just undo these things unilaterally. The administration’s desire to move quickly sometimes slows it down even more because they open themselves up to lawsuits.
Sharon: You mentioned some possible legal work around captivity issues.
Sumona: Yes. We are also looking at strategies for challenging captivity of cetaceans. We’re concerned about the use of invasive practices and are gathering information and asking how do we investigate this issue first? We are using FOIA (Freedom of Information Act) to request records of captive cetaceans that should be housed with the NMFS (National Marine Fisheries Service). We need to gather as much information as we can and assess whether our concerns have a basis. We expect we might not be able to get the records we want. We think regulations requiring reporting, or those requiring that records be provided to us, may have been violated. We will likely have a fight over the records issues first.
Sharon: What are you enjoying about your work here?
Sumona: I love the breadth of projects that we have at Earth Island, and how plugged in our projects are to what’s happening on the ground. That makes it very interesting from a legal standpoint. I get to really understand the issues from a closer experience than I was able to at the Department of Justice. It’s easier to think about the law when I’m closer to the facts. With more context, it’s more inspiring, and I want to put that inspiration into the work. It’s easier to see where the law applies to specific contexts, not in the abstract.
We have projects with a lot of experience in how things have or have not changed—ten years ago and now. This is also the hard part. With 80 projects at EII, I can easily be turning from one thing to the next. It’s a lot to juggle. But I do have control of my schedule. As much as I want to do everything all at once, I don’t have to do it all at once. When the judge says there’s a hearing on Friday and gives our counsel at Covington a list of questions, they have to work nonstop to answer those questions in time for the hearing. Fortunately that’s not the way it is for me.
Sharon: Is there anything else you’d like to mention?
Sumona: Well, very important, there’s the offshore oil drilling threat to our coasts. Several EII projects are concerned with this, from marine mammals, threats to communities, toxic exposure, the whole coastal economy and environment, and then transporting oil and what happens when we burn all that oil. A lot of issues are relevant to our projects, so we participated in the rally against drilling in Sacramento, CA, and I put together comments on the Draft 5-Year Plan. IMMP submitted comments; Shark Stewards submitted comments; and so did Alert, the EII project that works with fence-line communities in the Gulf. We’re putting in our placeholders should any of this move forward. If it does, there will be lots more opportunities to get involved. There’s the Environmental Impact Statement and then the individual leases and many more decisions by the federal and state governments. We’re just going to have to keep on top of all that and stay involved in each step.
Sharon: Did you ever get to hang out with the Obamas while you were in his Justice Department?
Sumona: (She laughs.) The closest I ever got to hanging with the Obamas was a tour of the White House by a friend of mine who was one of their aides. And I did get to go to their inaugural party and watch them dance, so that was great.
You can help by donating to our legal and research fund for the PRI Monument: http://eii.org/prinm