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EPA Attorneys Criticize Obama Nominee

Nominee Ignacia Moreno said if confirmed to head the environment division at the Justice Department, she would recuse herself from any cases involving her former employee, General Electric. (Getty Images)

The Obama administration's nomination of Ignacia Moreno to head the environment division of the Department of Justice is moving quietly through the confirmation process, with hearings expected to begin in the next few weeks. Moreno has worked for the environment division before, during the Clinton administration. But her most recent job -- as environmental counsel for General Electric -- has raised eyebrows among Environmental Protection Agency attorneys. Before Moreno worked for GE, she spent five years defending other companies in pollution-related lawsuits.

Six EPA attorneys interviewed by ProPublica criticized the nomination, but asked that their names not be used in this story because they fear retribution. They said they doubt that anyone who has recently defended GE would be effective in the role.

For decades, the EPA has clashed with GE over the many toxic waste sites the company has been linked to through the Superfund program. For the past two years, Moreno has defended GE in some of these cases. Now, if her nomination is confirmed, she will be one of the government's top enforcement lawyers for the Superfund program and other environmental laws.

In 1994, President Bill Clinton appointed Moreno to be special assistant to Lois Schiffer, who then held the position that Moreno has been nominated for. In 1996, Moreno became principal counsel to Schiffer, who supports her nomination and told ProPublica that Moreno played an important role in dozens of environmental enforcement cases.

The EPA attorneys, however, argue that the job should not be filled by a lawyer who was comfortable defending the polluters that she would now have to prosecute.

In an e-mail to ProPublica, Moreno said she is not doing press interviews.

In a response to a questionnaire she recently filled out for the Senate Judiciary Committee (PDF), which will hold her nomination hearings, Moreno said she would  recuse herself from any case involving GE for the first two years of her tenure. The questionnaire also provides details about what she considers to be her most significant legal activities. She mentioned some of the cases she worked on at the Justice Department, including her assistance in mitigating cross-border pollution between Mexico and the United States. Only one of the legal activities listed in that section actually involved prosecuting polluters.

The questionnaire also lists civil rights cases Moreno worked on, including one in which she represented Mexican immigrants who sued their employer for unfair labor practices, and another in which she represented African-American female employees in a discrimination case against the National Archives.

Several attorneys outside of the EPA who are familiar with Moreno's career say her work on behalf of polluters doesn't mean that she won't make a strong enforcement lawyer. In fact, some argued that it might make her a better prosecutor.

Michael Steinberg, an attorney for Morgan, Lewis & Bockius, represents alleged polluters in Superfund cases and once worked for the Justice Department's environment division.

"I think if you ask people that I worked with then, they will tell you I was extremely effective in litigating against the industry," Steinberg said. "I expect nothing less from Ignacia. She's a professional, and that's what professionals do."

When Moreno's nomination was announced in mid-May, she was actively defending GE against charges brought by the very division of the Justice Department that she has been appointed to lead.

In court documents filed in that case, the EPA said that GE owes the federal government nearly $10 million for the government's cleanup of 800 barrels of toxic waste that GE improperly disposed of at a Superfund site in New Hampshire.

GE, with the help of Moreno (PDF), argued that it was not responsible for the Superfund site because it thought it had sold the waste to a company that was going to reuse it to make paint. GE said it didn't know that the waste was instead being dumped, according to court filings (PDF).

"Nothing is ever cut and dried with a GE site," said RuthAnn Sherman, an EPA enforcement attorney working on that case. "They aggressively pursue every possible avenue and appeal everything."

A federal judge ruled against GE, but the company is now challenging the costs of the cleanup, Sherman said. Moreno withdrew (PDF) from the case a week after her nomination was announced.

For the past nine years, GE has been locked in an even bigger court battle with the EPA and the Justice Department. GE argues that the part of the Superfund law that gives the EPA authority to force polluters to clean up their toxic waste is unconstitutional because it violates alleged polluters' right to due process. In legal filings, GE also argued that cleanup orders have an automatically negative impact on the company's brand name and financial status.

The company has been linked to 116 Superfund sites, according to a report by the Center for Public Integrity, an investigative journalism organization based in Washington, D.C. The only company in the report that was linked to more sites was Honeywell, with 128. Forbes magazine ranks GE as one of the largest companies in the world.

In a recent ruling in the case, a federal judge affirmed the constitutionality of the Superfund program. GE appealed (PDF) that ruling in March.

It's unclear how close Moreno was to the constitutionality case, or if she worked on it at all, because her name doesn't appear in any of the legal filings. Peter O’Toole, a GE spokesman, would not comment on Moreno's involvement in that case or on the status of any of GE's other ongoing cases.

"The absence of her name [from court filings] doesn't mean she did not work on the case," said Stephen Gillers, a legal ethics professor at New York University's law school. If she did work on it, Gillers said, strict conflict-of-interest rules for attorneys would prevent her from ever taking any position against her former client on the case, or on any other case that she was directly involved in.

Gillers added that if she was involved in the constitutionality case, it would not affect her ability to enforce Superfund law and she would have no obligation to recuse herself from Superfund cases pursued by the Justice Department. Superfund enforcement cases represent about a quarter of the caseload of the Justice Department's environmental enforcement section, according to an EPA attorney's analysis.

National environmental and public interest groups haven't taken a position for or against Moreno's nomination. But smaller groups, especially those specifically concerned about pollution attributed to General Electric, worry that her ties to industry make her the wrong pick for the job. Alex Matthiessen, president of Riverkeeper, a nonprofit that focuses on the health of the Hudson River in New York, is concerned about what Moreno's nomination will mean for the future of GE's 197-mile Superfund site that runs along the bottom of the river from Hudson Falls, N.Y., to Manhattan. More than 30 years ago, GE dumped over a million pounds of polychlorinated biphenyls into the river from two General Electric factories. PCBs are a probable human carcinogen, according to the Centers for Disease Control and Prevention.

Last month, General Electric began dredging up 1.8 million cubic yards of contaminated soil from the river after negotiating a two-phase cleanup plan with the EPA. In the first phase, the company agreed to clean up 265,000 cubic yards of the sediment, about 15 percent of the total. This phase is expected to end in October, at which point a panel of experts will review the progress of the cleanup and determine whether changes are necessary.

The Justice Department would not comment on this story or provide details about how it would handle cases that Moreno had to recuse herself from.

Before Moreno was hired by GE, she worked for Spriggs & Hollingsworth, a law firm that provided outside counsel to GE on its constitutionality case.

At Spriggs & Hollingsworth, Moreno was part of a team of lawyers that helped defend DynCorp against charges from an Ecuadorean community that claims the defense contractor sprayed residents with a dangerous herbicide used to control the growth of coca along the Colombian border.

Brian Leinbach, one of the lawyers representing the Ecuadoreans, also faced Moreno in court in 2004, when she defended General Motors in a Superfund-related lawsuit. Court filings in that case show that a group of Indiana residents living near a GM facility said their health and property suffered from pollution allegedly created by the company. The residents were represented in part by Leinbach's firm, Engstrom, Lipscomb & Lack.

"She has been one of the big players in defending large corporations against Superfund lawsuits," Leinbach said. "She is going to have to change her focus 180 degrees," he said, "but there is no reason to believe she is not capable of doing that."

And the revolving door between industry and government cointinues spinning at high speed. it also seems to be sucking in every former Clintonista. All of today’s stories seem to feature at least one re-tread. So much for the “change”.

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