Many lawyers enter the legal profession “to make a difference,” as is Victor Sher’s explanation for his decision to attend law school. But few lawyers can claim to have made such a massive impact through litigation, particularly in the area of environmental law.
Sher of Sher Leff has devoted his life to protecting the environment, unafraid of taking on large corporations and governmental agencies. He practiced at Earthjustice (previously known as the Sierra Club Legal Defense Fund) for more than a decade and served as its president from 1994 to 1997, where he litigated and managed a staggering array of cases and campaigns.
In private practice, he has focused his work on water contamination cases. Sher won a $104.7M verdict in 2009 for the City of New York against Exxon Mobil for contamination by MTBE.
Lawdragon: When and why did you decide you wanted to devote your legal career to environmental law, as opposed to another type of practice?
Victor Sher: I went to law school to make a difference, and started out working on a variety of public interest issues. I handled several pro bono cases in my first few years of practice involving civil rights, fair housing and police misconduct. Then, in 1984, I represented a family farm in northern California that faced losing its organic certification – the foundation of their business – because the State of California intended to spray every apple, crabapple, and hawthorn tree or bush in six counties with a derivative of German nerve gas. Of course, there was an equally effective non-chemical alternative. The case had everything that appealed to me: interesting legal and factual questions, challenging scientific issues, David v. Goliath, lots of media attention and high drama. We got an injunction literally as the spray trucks were about to roll. I was hooked.
LD: How did you come to get the job at Earthjustice? And what about the job kept you there for more than a decade?
VS: I originally volunteered to handle some overflow environmental cases out of the San Francisco office, while the organization was still known as the Sierra Club Legal Defense Fund (although it was always independent from the Sierra Club). One of these cases led to an injunction that preserved thousands of acres of open space on the coast from development; the property later became a state park. I got to know some of the senior management in San Francisco from working on this and other cases. In 1986, the organization decided to open a new office in Seattle. I applied for and got the job as managing attorney. Then, following Rick Sutherland's untimely death in 1991 and an interregnum period, in 1993 I was drafted to become President and moved back to San Francisco. In mid-1997 I resigned to move into private practice.
I spent seven years in Seattle litigating cases for clean water, clean air, and to preserve the ancient forests of the Pacific Northwest, among other cases. These were complex, high-profile cases, and they were exciting and satisfying to litigate. As President of the organization from 1993 to 1997, I was the CEO of a 50-lawyer law firm with 10 offices around the country – the largest public interest environmental law firm in the world. I worked to increase our effectiveness by promoting proactive litigation campaigns (rather than just individual cases) and expanding our capacity to be effective political advocates in support of litigation. During my watch, we also adopted the Earthjustice name. The challenges of building an institution and running an organization were new to me and quite different from litigating cases. But ultimately I missed the courtroom and left to do environmental tort cases.
LD: Obviously, there were many cases you worked on at the organization, as you just discussed. Nevertheless, is there a case or type of litigation you handled that you think really stands out in terms of the legacy you left for the organization, a particular region or the environment generally?
VS: Probably the best known of my Earthjustice cases were the multiple series of lawsuits my colleagues and I brought over the northern spotted owl, which was a key indicator species for the health of the ancient forests of the Pacific Northwest. These cases exposed what one court called a remarkable series of violations of the federal environmental laws by the federal agencies charged with protecting these lands and species, and led to a series of injunctions issued by multiple courts under several laws that changed logging practices on millions of acres. The American Lawyer called these cases among the most significant public lands cases in the nation's history, and they led to a wholesale revision of the way the U.S. Forest Service and the Bureau of Land Management manage biodiversity on federal lands.
I found litigating these cases fascinating both because of the important legal and biological issues, and also because they played out on multiple legal and political levels. At one point I think we had about a half-dozen active cases in federal district courts in Washington and Oregon, three active appeals in the Ninth Circuit, and even a case pending in the U.S. Supreme Court. At the same time, the cases drew Congressional attention, and we had to deal with a series of "riders" to appropriations bills that at various times suspended environmental laws in our cases. Our experiences both in the courts and with Congress provided the impetus for the new model of integrated legal and political advocacy we implemented across the organization when I became President.
LD: What led you to focus specifically on water contamination issues, as opposed to other environmental areas, in private practice?
VS: I chose to focus on drinking water because it is a basic human necessity, largely managed by public agencies in local communities, and widely threatened by a variety of sources of pollution resulting from irresponsible corporate behavior. I had a growing frustration while in the non-profit arena that too few cases undertaken by non-governmental organizations directly attacked environmentally destructive corporate decision making. The cases I've done for the last 15 years focus directly on the high costs to communities of corporate decisions that poison drinking water without regard to their impacts on communities, including decisions to develop and distribute products. I believe these kinds of public agency tort actions represent an important environmental enforcement tool for the future.
LD: Regarding the $104.7M verdict for the City of New York, what was key in getting the jury to see things your way? The trial was long, and I assume the evidence fairly complex. Are there core strategic components that are specific to how attorneys should present these types of contamination matters before juries?
VS: As in all effective trial advocacy, the key is a good story and helping the jury understand extremely complex technical and scientific issues. In this particular case, we had a very strong tale to tell of ExxonMobil's conscious and continued disregard for the environmental consequences of its choice to use MTBE – starting with memos from its own scientists in the 1980s recommending against using the chemical precisely because of its pernicious impacts on the nation's drinking water. The company ignored those warnings to save a few pennies per gallon in production costs.
Lawyers handling these kinds of cases also need to realize that these are extremely long, complex and expensive cases. Lawyers need the skills and the resources to undertake them, as the defendants (and their lawyers) have virtually unlimited resources. The NYC case was filed in 2003, the jury trial, which lasted four months, ended in October 2009, and we had the oral argument in ExxonMobil's appeal to the 2nd Circuit of the jury's verdict on May 23, 2012!.
LD: What is the status, broadly speaking, of all the MTBE cases you have handled? Have those sort of wound down now? What specific types of cases will be keeping you busy in the years ahead?
VS: Other than the New York City case, most but not all of my MTBE cases have wound down. There are still cases proceeding – for example, the State of New Hampshire's MTBE case is set for trial in November 2012. And other firms are still prosecuting MTBE cases in the federal multi-district litigation pending in the Southern District of New York and in various state courts. MTBE, of course, is no longer in gasoline; it remains to be seen to what extent water utilities will suffer new contamination as plumes continue to spread from spills and leaks that occurred over the last few decades.
Sadly, this is a growth area for litigation. Communities will inevitably continue to struggle with a variety of toxic compounds in their drinking water, and the pressures on clean water will increase as population and demand grow. I'm sure that the future holds no shortage of interesting and important cases in this field.
LD: What have you seen in terms of the interest of public agencies to file lawsuits over alleged contamination issues in the current economic situation? On the one hand, they could use the money of an award or settlement, but they could also lose money on litigation.
VS: There's been a real growth in interest in undertaking these kinds of cases, in large part, I think, because of the success we've had in cases involving MTBE, DBCP, TCP and other compounds. Public agencies whose water supplies are contaminated find themselves caught between a big rock and a very real hard place. On the one hand, the costs of dealing with polluted drinking water are enormous and unavoidable. On the other hand, litigation is expensive and risky. Very few – if any – communities these days can afford to undertake these kinds of cases on their own. Few city attorneys have the expertise (much less time) to do it in-house, and the cost of hourly lawyers is not realistic either. This is why contingency fees are so important. They make possible litigation that would otherwise be impossible for financially strapped public agencies to afford.
LD: What do you do for stress release or fun when you are not working on your practice?
VS: I have a daughter, who is six, and a son, who is three-and-a-half; they're built-in stress relievers. I also swim, play guitar and backpack in the High Sierra when I get the chance.