As a strong supporter of the environment, I am particularly concerned that the so-called Class Action Fairness Act will allow polluters and other bad actors responsible for environmental damages to avoid accountability in court.

This legislation would remove almost all important environmental class actions from state to federal court. Not only does this deny state courts the opportunity to interpret their own state's environmental protection laws, but it also hampers and deters plaintiffs from pursuing important environmental litigation. In federal court, attorneys must engage in endless choice of law debates that significantly increase the time and cost of litigation. The well documented backlog in the federal courts only exacerbates this problem. An environmental class action that takes two years to litigate in a state court is likely to take seven years or longer in federal court, costing both the plaintiffs and defendants unnecessary time and money.

Under this bill, environmental class actions may not get litigated, reducing the incentive polluters have to keep our environment clean. Plaintiffs' attorneys may not be willing to take these high-risk, high-cost, and time-consuming cases, particularly when the judicial remedy sought is injunctive relief. This has the potential to leave our environment and the victims of reckless polluters unprotected by our civil justice system. This bill, intentionally or not, protects polluters and ignores the innocent victims of their negligence.

In dealing with environmental class actions involving state causes of action, a state court is far superior to federal court. For example, the case of Escamilla v. Asarco, Inc. was an environmental class action litigated in a Colorado state court. The class included the residents of a low-income Denver neighborhood called Globeville, whom, for more than sixty years, were subjected to dangerous levels of arsenic and cadmium from a nearby smelter. Each day the residents of this neighborhood were subjected to air and soil contaminated with deadly toxins.

In this state court case, it took a little more than two years, from the time the case was filed to the post verdict settlement, for the cleanup of Globeville to begin. If the case had been filed in federal court, the residents of Globeville, Colorado might still be breathing carcinogens. Instead, the state court efficiently conducted the litigation and designated more than 70 percent of the award for the cleanup of 572 homes. Since the cleanup, the Globeville residents have come together to foster a new sense of pride in their community. In federal court, this revitalization may not have occurred for a decade. There is a chance that it may never have occurred at all under the strict federal rules for class action certifications.

The Escamilla case is hard evidence that our state-based civil justice system is working to protect the environment and the victims of polluters. The Colorado state court resolved the case in a timely and efficient manner, which is what state courts across the country do everyday in handling environmental class actions. State courts, unlike the federal courts, have a sound understanding of evolving local law and the open dockets to resolve conflicts in the efficient manner necessary to protect our society from polluters. Indeed, Friends of the Earth, the environmental public interest group, opposes this bill because it would take environmental class actions from state courts, where they are best suited. I ask unanimous consent that the Friends of the Earth letter dated June 14, 2000, in opposition to the Class Action Fairness Act be included in the record. ¹, ²

My amendment to S. 353 would exclude class actions arising under a state environmental protection. I believe it is appropriate to carve out environmental-related state law claims given the evolving nature of state law and the importance of maintaining efficient litigation to protect our environment. The Leahy amendment will make sure that this legislation does not shelter polluters from being held accountable for their actions.

I know that all members on this committee recognize the need to maintain our environment for the future. Our civil justice system and state courts are important tools in this effort. I hope that you will all join me today and adopt this amendment so that we can diminish the unacceptable effects this legislation may have on the environment.

¹Friends of the Earth Letter

² Clean Water Action / Earthjustice Legal Defense Fund / U S Public Interest Group Letter