Pace University, 78 North Broadway, Environmental Litigation Clinic, White Plains, NY 10603
Phone 914-422-4410 | Fax 914-422-4437 | Email lomalley@keeper.org
The Waterkeeper Alliance has declared war on America’s pork industry, and Robert F. Kennedy, Jr. is in charge of the battle plan. Officially, Waterkeeper is a coalition of more than 80 “neighborhood watch” programs for America’s rivers, bays, and shorelines. But this is thin political cover for the real coalition here -- one of big-money trial lawyers (many of them still counting their tobacco-settlement fees) who see billion-dollar payouts where most consumers see ribs, ham, and bacon. Kennedy’s involvement with the group dates back to the mid-1980s, when he was a prosecutor in the Manhattan district attorney’s office. According to Kennedy’s own accounts, he was also a secret heroin addict, disguising himself and visiting Harlem to buy illegal drugs by night. That double life caught up with him in 1984 when he was arrested and charged with heroin possession. As part of a plea arrangement, Kennedy was sentenced to 800 hours of community service, which he worked off by volunteering at the Hudson River Foundation. This group was later absorbed by the Hudson Riverkeepers, the Waterkeeper Alliance’s flagship constituent group.
Today, the nerve center of the Robert Kennedy environmental empire consists of three groups: the Waterkeeper Alliance, the Hudson Riverkeepers (sometimes known simply as “Riverkeeper”), and the Pace University Environmental Law Clinic, where Waterkeeper and Riverkeeper both keep a mailing address. The group functions as one.
The larger enviro-conglomerate has been a wholly owned subsidiary of Robert Kennedy since June of 2000 (see “Black Eye”); around that time, he began trading on his family name in order to assemble a “dream team” of attorneys who were interested in applying to pork producers the legal model made famous by tobacco lawyers. Assisted by long-time Kennedy family friends like Hiram Eastland and Jan Schlichtmann (of A Civil Action fame), Kennedy has recruited lawyers from 15 national law firms, most in states where hog farming has a significant presence. One such attorney, Richard H. Middleton, Jr., is the immediate past president of the Association of Trial Lawyers of America (and still runs the trial lawyers’ Political Action Committee).
Each firm has committed itself to an initial $50,000 ante, which is pocket change compared to the size of the awards these lawyers are hoping for. In January of 2001, Kennedy himself estimated potential “damages” against the pork industry at $9-13 billion. If they prevail, the lawyers will keep a huge percentage for themselves.
About half of the law firms contributing attorney-muscle to Kennedy’s crusade have experience suing tobacco companies (the ultimate legal cash cow). Likewise, about half are involved with class-action suits against antibiotic manufacturer Bayer. It’s interesting to note that on January 18, 2002 Kennedy joined Environmental Defense’s Rebecca Goldburg in a press conference denouncing Bayer for its continued marketing of the livestock antibiotic Baytril. One might imagine being a fly on the wall when Kennedy and his stable of lawyers agreed to publicly attack each other’s sworn enemies, confident that the connection would arouse no public concern.
In addition to these lawyers’ deep pockets, the Waterkeeper Alliance stays afloat through foundation support, individual wealthy donors, celebrity ski events at the Vail resort, and a for-profit company called Tear of the Clouds LLC, which sells Keeper Springs bottled water. A combination of slick marketing and Kennedy cachet has placed this product in supermarkets all across America. Every penny of profits goes to support the Waterkeepers and their anti-agribusiness campaign.
The master plan? Make reckless claims that hog producers are polluting our rivers -- even though they’re already subject to some of the strictest environmental regulations in the United States, and it’s typically large-scale hog farms that receive environmental awards (in April 2001 Smithfield subsidiary Carroll Farms became the first livestock operation in the entire United States to receive the prestigious ISO 14001 environmental certification). Make vicious threats about dragging the pork industry into court and shutting it down -- forgetting all of the American jobs at stake. And when the cameras are rolling, make absolutely sure that Kennedy is front and center to generate sympathetic media coverage.
Already, the Waterkeeper legal machine has filed suit in North Carolina, Missouri, and Florida, demanding triple damages under the same RICO statutes (Racketeer Influenced and Corrupt Organizations) used by prosecutors to combat modern-day organized crime families. Along with the Waterkeeper Alliance, the Sierra Club, the Animal Welfare Institute, and the rabidly anti-consumer National Farmers Union are co-plaintiffs in these legal actions.
The effort suffered a setback in March 2001 when the first round of lawsuits was thrown out of court by a North Carolina judge who ruled that the plaintiffs had “failed to state a single claim” warranting a trial, much less a financial award. Still, Kennedy insists that his legal team will prevail. “We have lawyers with the deepest pockets,” he told the Associated Press on April 18, 2001, “and they’ve agreed to fight the industry to the end. We’re going to go after all of them.”
Kennedy and his cohorts went back to the drawing board and resubmitted their lawsuit, only to have it rejected by a U.S. District Judge for (once again) failing to support their RICO claims. Undeterred, they amended their case a second time, still insisting that RICO applied. This time, Chief U.S. District Judge Elizabeth Kovachevich let Kennedy and company know her patience was running thin: “After detailing the reasons why Plaintiffs did not have a claim under RICO … Plaintiffs again brought a RICO claim, against this court’s advice.” Judge Kovachevich also wrote that Kennedy’s lawsuit “failed to state anything at all, except conclusory allegations that have no support.”
On July 21, 2003, Kennedy took his anti-hog-industry rant to Eastern Europe in an attempt to vilify Smithfield Foods, which was looking to bring business and jobs to the region. This time, Kennedy’s hysterical ravings and outrageous accusations went too far, prompting the company to obtain a slander indictment -- charging that Kennedy spouted “untrue information” and “consciously manipulated the facts” with the intent to “discredit Smithfield.”
Kennedy plans to keep suing until he finds a judge who will see things his way; at that point, his hope is that large-scale corporate pork producers won’t be able to absorb multi-billion-dollar judgments against them. This would open the market up for “sustainable” pork producers, whose products are marketed as “organic,” “free-range,” or “environmentally friendly.” Why aren’t these products particularly successful on their own? They cost more. Nearly twice as much per pound as conventionally produced pork, in some markets.
Does the Waterkeeper Alliance want to rid America’s tables of bacon, sausage, and everything else that comes from hogs? Not quite: when Kennedy talks about going after “the industry,” he’s only referring to large farms. Companies like Smithfield, Premium Standard, Bell Farms, Seaboard Farms, Cargill, Land O’Lakes, and Hormel -- companies which employ tens of thousands of Americans. Companies that already have to obey countless state and federal regulations, including a whole regimen from the Environmental Protection Agency.
On January 11, 2001, Robert Kennedy was the keynote speaker at a “Sustainable Hog Farming Summit” held on the banks of the Neuse River in New Bern, North Carolina. Multi-millionaire lawyers lectured on “Using Class Actions and Tort Law to Hold Meat Factories Accountable,” while environmental campaigners warned of the evils of “Big Pork” and animal-rights activists touted Sweden’s “humane” hog industry as the example to follow (In Sweden, by the way, pork typically costs the equivalent of $11 per pound).
This might sound like a rather improbable way for environmental zealots to run amok, but Kennedy and the Waterkeeper lawyers just might win a significant payoff from their anti-corporate jihad. A big enough jury verdict (remember, tobacco companies were on the hook for $360 billion) could force mainstream corporate producers from the marketplace entirely, drastically raising food prices and ultimately narrowing the choices open to American consumers.
It’s abundantly clear that money makes the world go ‘round for this group of Kennedy-led ambulance chasers. The world of class-action torts and nuisance lawsuits is based on the simple premise that attorneys get paid on “contingency” -- that is, they pocket a percentage of whatever a judge or jury awards their clients.
Kennedy’s legal dream team has loads of experience with this model. Among the products whose manufacturers they’ve sued: tobacco, diet drugs, asbestos, genetically improved crops, and diabetes medications.
The Waterkeeper Alliance will insist until pigs fly that their raisons d’etre are clean water and the environment, but consider this: every state, without exception, already has regulations in force mandating environmental standards for hog farmers. All pork producers, both big and small, must follow the law. If Kennedy really believed that America’s environmental laws weren’t being enforced, or weren’t strict enough in the first place, he would be suing the Environmental Protection Agency for better enforcement, or lobbying various state legislatures for tougher standards. And Kennedy wouldn’t need to build a war chest from 15 different law firms to get it done.
The problem with these approaches is that there’s no money in them. Suing the government sometimes gets results, but it seldom makes anyone rich. For much the same reason, Kennedy probably won’t bother suing any pork producers whose bank accounts aren’t big enough to attract the big-time trial lawyers in his corner. This kind of lawyering targets only the ripest fruit. It’s called extortion by litigation, and the Waterkeeper Alliance is raising it to a high art form.
Along the way, the anti-agribusiness movement in general has taken notice of Kennedy’s take-no-prisoners style, and groups like Environmental Defense and the Institute for Agriculture and Trade Policy have expressed support for any initiative that will raise prices and make “organic” and “sustainable” meats more attractive to consumers -- just more examples of those who “know what’s best” for Americans trying to make our choices for us. Such groups never disclose their contributions from the organic-foods industry, but the Waterkeeper Alliance hasn’t been quite so circumspect. Its January 2002 “Sustainable Hog Summit” was partially underwritten by the Niman Ranch, which sells more “organic” and “sustainable” pork and beef than just about anyone else in the United States. Niman would clearly benefit from its competitors being tied up in costly litigation.
While Robert F. Kennedy, Jr.’s history with the Waterkeeper movement goes back to the mid-1980s, he only recently assumed control of the Waterkeeper Alliance. The group also uses the name Hudson Riverkeeper, or sometimes just “Riverkeeper,” names that refer to an older organization where Kennedy was one of several environmental disciples of Robert Boyle (the group’s founder). That arrangement changed in June 2000, when Boyle and seven other board members resigned en masse after what the New York Times called “an angry showdown with Mr. Kennedy.”
The dispute arose over Kennedy’s decision to hire a staff scientist named William Wegner who, the group’s 22 board members would soon learn, was a convicted felon. Wegner had spent eight years running a smuggling ring, trading in endangered birds from Australia. Kennedy’s new hire, whom he refused to dismiss, was an admitted environmental criminal. He had been sentenced to a five year prison term for conspiracy, obstruction of justice, and tax fraud. Less than three months after being released from federal custody in August of 1999, Wegner managed to land on his feet and secure the Kennedy seal of approval.
The Riverkeeper establishment howled at the obvious conflict of interest. Boyle shared his frustration with the Times: “You don’t hire a child molester to run a nursery school.”
The (NY) Putnam County News noted at the time that Wegner’s federal prison stay did little to improve his ethics: “The resume Wegner submitted to Riverkeeper accounts for his period of incarceration without referring to the fact of the incarceration itself. Wegner describes work he performed and omits the significant information that he performed this work while he was serving time as a prison inmate.”
Boyle, who had taken Kennedy under his wing following his 1984 heroin arrest, made no bones about his change of heart, telling the New York Post that “he is very reckless. He’s assumed an arrogance above his intellectual stature.”
