The Black Queen is Talking Backwards and Truth is off its Head

Life in the executive branch of government was becoming increasingly untenable. Too much bureaucracy. Too many times where new ideas were unceremoniously shot down with an automatic no. If a program was not delivering needed/expected results and you asked staff why they continued to operate exactly as they did, despite shortcomings, the response was invariably some version of, “because we’ve always done it that way.” To describe bureaucratic progress as “sclerotic,” is unfair - not to the bureaucracy but to the concept of sclerosis. Needed changes would have to be supercharged just to reach the speed described by the term.

I felt I was accomplishing little and was becoming frustrated with the numerous hurdles emanating from the Secretary’s office as well as the Governor himself. After a disappointingly infuriating meeting at the capitol, getting off the elevator I ran into Chief Counsel Carolina Nieto. Noticing my nearly lachrymose appearance, she followed me down the hall. 

“What’s up, Coop?” she gently inquired. “You look like you're suffering from PTSD.”

“Carolina, I’m beginning to understand that old Welsh socialist Dylan Thomas, when he urged us to “rage rage against the dying of the light.”

“Not sure you noticed, but the light is actually dying! We continue to push good policy - to actually help people - up a hill, and it rolls back on us with our alleged friends doing the pushing. I think I’m beginning to understand Sisyphus better than I ever wanted to!”

“It feels like I’m wasting my time here. The failures are coming with metronomic regularity.”

Counselor Carolina Nieto, a marvelous force of nature and by this time a good friend, smiled and held up the sports section of the LA Times, seemingly ready to gloat about the latest football feats of her alma mater, USC. Recognizing I was upset and in no mood for college football jokes, she asked if there was anything she could do.

“It must be karma, but I’m back looking at contaminated water issues, where this all started. There’s a bill moving through the legislature that would establish strict cleanup standards and, just as critically, adopt the precautionary principle for toxic exposures in California.” 

“Sounds like something you can get behind. Why so glum?’

“I know this is esoteric and the stuff of pointy-headed professors but hear me out. When the federal law known as the Toxic Substances Control Act was passed in 1976, some 62,000 existing chemicals were grandfathered in; that is, they were deemed legal and safe under federal law, regardless of whether adequate tests as to their safety had been conducted.”

“This isn’t new,” Carolina replied. “The problem is obvious. We have no idea if these chemicals are safe at all, or at what dosage or through what exposure mechanism they might become problematic. The Feds have left testing up to the manufacturers themselves! It makes my work as head of legal highly problematic in nailing responsible polluters.”

We grabbed coffee then ducked into her office, where she continued. “Under current law, an injured party has the burden of proof to show that a specific chemical is the direct cause of whatever injury he or she suffered. This is extraordinarily expensive and nearly impossible to prove, as isolating one chemical from the thousands that any individual is exposed to through drinking water, air pollution, consumer products, etc. let alone proving that a particular infirmity is directly related to that chemical as opposed to smoking, genetics, or a workplace exposure, is an Everest-sized mountain to scale, essentially without oxygen and carrying the massive dead weight of legal precedent up that forbidding precipice.”

“Furthermore, even the tests that are conducted are farmed out to the very industry groups producing the chemicals! We have no way to determine what the cumulative impact of exposure to numerous chemicals, even at allegedly safe levels, might be. While an individual chemical might not show negative health impacts on humans or fauna at a prescribed level, what the combined impact of that chemical plus thousands of others in the food, air, water, etc. might be, is beyond our current abilities. We are conducting a massive experiment on every living thing on this planet without controlling for the most basic of variables!”

Carolina continued. “As an example, my firm in San Francisco, representing shipyard workers exposed to asbestos who suffered debilitating and deadly lung disease, lost case after case when the burden of proof was on the injured party to prove where the asbestos causing their disease came from.”

“The defense by the asbestos manufacturers was actually quite simple when boiled down: the corporate defendants essentially conceded that the mesothelioma that the former workers suffered from was caused by asbestos exposure, but they then proceeded to argue that the defendant could not prove that it was their asbestos.”

“Johns Manville pointed at Grace, Grace pointed at National Gypsum, and so on, in a game of liability avoidance. Since asbestos leaves no telltale branding in the lungs, only gasping and death, the corporate manufacturers avoided responsibility. That is, until a Federal District Court reversed the burden of proof. Now the defendants would have to prove that it was not their asbestos, thus breaking open the floodgates for victim compensation.” 

“Yea, I know.” I said. “I was actually hopeful that we might have a legislative solution until I had a disquieting meeting with a Democratic Senator, I thought would be supportive.” 

Carolina was all ears. “Tell me about the legislative fix you are working on,'' she said, putting down her Trojan coffee mug with the photos of USC Heisman trophy winners embossed, though I did note that the OJ Simpson pic had the face crossed out with a big X. 

“Legislation proposing to adopt the precautionary principle has been introduced. It will require manufacturers of chemicals to prove their safety rather than leaving it to the public or an injured party to prove otherwise. Switching the burden of proof as this does is a game changer, as you are well aware.”

“Who’s the author,” Carolina asked?

“The bill establishing strict remediation standards is authored by Senator Wadsworth Byron, a former Stanford Law professor who represents Palo Alto and the tony neighborhoods surrounding it. Senator Byron, is one of the smartest and most able legislators I have been privileged to know.”

“With regard to cleanup standards for toxic waste, the responsible parties for the contamination would be required to prove that the clean-up standards they were proposing, expressed in parts per million, were fully protective of public health.” 

Carolina nodded in agreement. “Sounds like great public policy, though getting the Governor to sign it might be problematic. Last I checked he’s taken lots of money from the very companies that would be affected. Our Secretary keeps a lid on this stuff as well, but you know that.”

“I’ll cross that bridge when I come to it. In the short term I have a more immediate problem in the Senate.” 

“The bill is opposed by Senator Maria Duarte Gonzalez, representing southeast Los Angeles County, a district of working class and low income residents with a large Latino demographic. The sad part of this story is that I have a personal history with Senator Gonzalez. When she was first elected to the Assembly, she had limited staff. Senator Zapata introduced us and offered my services if the new assemblywoman ever needed senior staff advice. She took me up on this several times.”

“I know her reputation,” Caro replied. “I’ve kept my eye on her. She is smart, naturally, as a USC grad that comes without saying,” she laughed. Since elected to the Senate, she has maintained her reputation as a fire-breathing liberal. I am quite surprised that she would be standing as the primary opposition to the bill.”

“Well, she is claiming that it would hurt her district, which is the exact opposite of what the bill actually does. Senator Byron’s express purpose is to ensure that low-income communities are not forced to accept lesser cleanup standards than their wealthier neighbors.”

“I had a disturbing meeting with her last week. Since, as per usual, our administration had no position on the controversial bill, which was being heavily opposed by polluters, I had to tread carefully. As the bill’s support is extensive, including environmentalists, labor organizations, civil rights groups, and the United Farm Workers Union - all natural supporters of Gonzalez, I attended the meeting thinking she merely misunderstood the bill and would be open to persuasion. I was VERY wrong!”

“I was ushered into her office and was startled to find that the bill was not being handled by her regular staff, but rather by a large unkempt attorney, who greeted me at the door and introduced herself as Jessica Melendez, a partner with some international law firm. I was unaware that the firm was doing business in California, but according to her business card it had offices in London, Hong Kong, Riyadh, Harare, Pyongyang, Moscow, and Dubai, among others.” 

“After a short round of stiff formal pleasantries, we got down to business. I handed Senator Gonzalez the long list of supporters.  “Do you oppose this bill,” I asked incredulously? “These are all your normal supporters. Community groups and residents of your district. Ethnic chambers of commerce, environmentalists, environmental justice organizations.”

“Yes, I strongly oppose it.” she said firmly. She then turned to Melendez to answer any more questions. Melendez handed me proposed amendments, which I quickly scanned. They were a travesty. Boiled down, what they did was lower the cleanup standards for low income and minority communities while maintaining the stricter requirements in the bill for wealthy neighborhoods.” 

“In other words, contaminated sites in Beverly Hills would be scraped to pristine, but the same pollution in Watts could be cleaned to less rigid criteria, all in the name of economic development. The Senator had bought the ludicrous, essentially mafia-like argument being peddled by industry: that if forced to clean up their mess, they would not invest in low-income communities.” 

“I did not believe what I had just read. I still held out hope that the Senator did not understand, but that was far-fetched. No one had ever called Senator Maria Duarte Gonzalez stupid! I then asked both of them who Melendez represented, and received a completely unsatisfactory, evasive response. I played what I thought was my ace card at that point and said that the amendments, if accepted, would require the department to ask them to be removed or face a veto. What followed was shocking in the extreme.” 

“The Senator stood up, her voice rising in anger, and said, “Mr. Cooper, I am shocked that you wish to deny my constituents the economic development they need so badly. I can only presume that you are hostile to my Latino constituents.” 

“Wow. She’d just called me a racist. With that I quickly got up, and on the way out the door, said to her slowly and calmly, “Senator, we have known each other for many years. You know I cut my teeth with Senator Zapata in East Los Angeles. I am deeply offended by your accusation. You will hear from us shortly.” And with that, I left.

“I went back to the office spewing self-righteous venom and asked the staff to do a little background on Attorney Melendez. Bingo! Her main client was the California Railroad Association. The railroads, might no longer have the stranglehold on California they had when they were the subject of Frank Norris’ blistering novel The Octopus, which laid out a tale of lust for power, greed, and betrayal in late nineteenth-century California, but they were far from toothless, and clearly had the ear of Senator Gonzalez.”

Carolina saw the problem immediately. While not the preeminent power they had once been, the railroads, through property development conglomerates, still owned millions of acres in the state and were responsible for the continuing toxic legacy with a checkerboard of heavily contaminated properties stretching from Fort Bragg in the north to Calexico on the Mexican border in the southeast. 

“Those amendments written by Melendez are a get-out-of-jail-free card for the industry for billions of dollars in cleanup costs!” she opined. “However, I may have an answer to your little problem.”

“Is Melendez a large, poorly dressed, scraggly haired Latina, about my age?” She asked. 

“Yeah,” I said, “how’d you know?”

“She was a law school classmate of mine at Harvard. I was president of the Latina Lawyers Association and heavily involved in La Raza. We could never get her to even attend, let alone join! Bring me to your next meeting. If she wants to play the race card on you and Senator Byron, it’s best to have me handle it.”

And so she did. We purposely arrived early the next morning and took our seats at the head of the table next to Senator Byron. When Melendez walked in, she at first did not notice Chief Counsel Nieto, Harvard Law ‘83. When Carolina walked over to shake her hand and make intros, Melendez suddenly recognized her and turned nearly white in the process. 

“Hello, Jessica,” Counselor Nieto nearly cooed. “So glad to see you after so many years. Not surprised to see where you landed after graduation. I had lost track of you. Alumni publications showed you still worked for the oil and firearms industries. I didn’t realize you had added toxic polluters to your client list. Good for you. Happy to see a fellow Latina make her way in the world,” she said, with only the slightest detectable hint of sarcasm. 

After making introductions, Senator Byron got down to business, his chief of staff, passing out copies of the bill as well as the proposed amendments by Senator Gonzalez. He then turned to the Senator to explain her proposal. The Senator remained seated, but Melendez quickly rose to explain the changes her client was requesting.

“As you know this section of Los Angeles suffers from an investment deficit. The needs are many. The residents need jobs and housing. While the cleanup standards proposed in Senator Byron’s well intended bill might be acceptable in wealthier neighborhoods, cleanup will take years, even after expected litigation concludes, and the poor black and brown folk living there will be exposed to the contamination in the meantime. While those delays may be acceptable to rich white people living in Beverly Hills and Bel Air, we people of color need immediate relief, which is what my client’s amendments would provide.” 

According to her, if enacted, the high standards established in the legislation would not only not help the neighborhoods as beneficiaries but would decrease investment and delay the very cleanups intended. 

Senator Byron was clearly taken aback. While he examined his notes, Carolina gently squeezed my hand, and whispered, “it’s time.”

“Senator, Counselor Nieto is here representing the Department and would like to question Ms. Melendez concerning the assertions she has just made. May she?”

“Certainly, go ahead, Counselor,” he replied.

Arising to her full 5”0 nothing in heels, Carolina Nieto showed why she was such a brilliant attorney, unpacking the railroad lobbyist’s specious arguments piece by sullied piece.

“Ms. Melendez, how many known Superfund sites exist where your client bears liability for clean-up? 

“I’m not sure,” Melendez replied.

“Would it surprise you to know that the list is at 50 and not complete?”  

Melendez did not respond.

“How many brownfield sites might there be, 10,000? 20,000? You cannot answer that either can you?” 

“You have posited that your client is concerned that standards that are fully protective of public health would have an adverse impact on communities of color, is that correct?”

“Most definitely. If forced to clean up to these overly burdensome standards, developers would certainly invest elsewhere.”

Nieto had laid her trap well. “So, exactly who would cause the delay in cleanup?” 

“It is your clients who are the responsible parties for the very pollution who would sue, is that correct?” 

Melendez muttered in the affirmative.

“If I understand your argument, it is that in expressing your client’s deep concern with the people of color who primarily inhabit these heavily contaminated communities it is your client who would delay cleanup through endless litigation? Isn’t that the crux of your argument?’ 

Not waiting for an answer, Nieto went in for the kill. “If Senator Byron were to accept your proposed amendments, is it not true that wealthier communities would get healthy land to develop and low-income communities would have to live with contaminated properties on which we would build homes and businesses?”

“Based on this twisted logic, you accuse Senator Byron of being insensitive to the needs of communities of color...PLEASE!”

And on that note, the meeting ended. Senator Gonzalez withdrew the amendments and her opposition the next day!  

The bill then moved through the legislature and was signed by the governor, with Counselor Nieto by his side at the signing. Score one for the good guys.