One of Aesop’s Fable concerns a crafty crow who happens upon a pitcher with a bit of water at the bottom. Unable to reach the water, the crow drops small pebbles into the pitcher, raising the water level until she can drink. When faced with difficulty, Aesop’s crow demonstrates creativity. The Town of Lee is currently facing what appears to be a similarly intractable problem in the remediation of the Housatonic River. Lee should consider how it can employ such genius to see that the Rest of River Cleanup Plan is implemented favorably for the town’s, and other South County towns’, benefit. Regrettably, Lee has chosen a far less judicious path.
Earlier this year, Lee engaged counsel to pursue bird-brained litigation against GE Aerospace (successor to General Electric) and Pharmacia (successor to Monsanto). The lawsuit is meritless and distracting—Lee, you are better than this pointless tirade. To make matters worse, the counsel Lee engaged to bring its nonsensical suit was sanctioned $45,000 by a respected federal judge for bearing responsibility for a deficient performance that was “so minimal as to be unreasonable and incompetent.” Lee, engaging discredited counsel to bring frivolous claims is not a good look.
There has been considerable discussion in these pages decrying the quality of counsel provided to Great Barrington in connection with its defense of two lawsuits brought by cannabis licensees seeking a refund of about $6 million in Community Impact Fees. It has been suggested that Great Barrington’s town counsel should be relieved of duty (by this columnist and nearly 98 percent of survey respondents). But to give you an idea of just how poorly advised Lee has been, it can be said without reservation that even Great Barrington’s town counsel would not have filed the action Lee brought against GE and Pharmacia.
For the very few not aware, Lee entered into an agreement with the Environmental Protection Agency, other South County towns, and various entities setting forth a plan to remediate the PCBs discharged by GE over decades into the Housatonic River. As part of the agreement, GE paid Lee $25 million. On July 25, 2023, the First Circuit Court of Appeals approved the remediation plan. The Supreme Court has not to date and is unlikely to ever review the First Circuit’s opinion. Done and done.
Not satisfied with “a deal’s a deal” and $25 million, Lee voters elected Select Board members willing to continue some fight against someone about something. Next, the Select Board found legal counsel willing to pursue a novel—novel in the sense that it is entirely fictional—tort of “intentional infliction of harm.” Based on this wholly unrecognized tort, Lee then commenced suit against GE and Pharmacia for civil and criminal conspiracy. These claims are both legally problematic and, for Lee, embarrassing. Let me explain.
An essential element of a claim for civil conspiracy is an underlying tort. Massachusetts does not recognize the tort of “intentional infliction of harm.” Absent a tort, Lee has no basis to prosecute a claim for civil conspiracy. But if the court were to kindly pretend that this imaginary tort existed, all the conduct described in the complaint was alleged to have occurred before 1977. Maybe the court can forgive Lee for making up torts, but no court can forgive the passage of nearly 50 years. Worse, Lee advised the First Circuit in its briefs that it has known about the basis for its claims for more than a decade. As a point of reference, the statute of limitations for Lee’s purported civil conspiracy claim is three years. Done and done.
Lee will surely argue that it only recently discovered this enormous injury, so the court should let it proceed as if it had not been aware. That argument, if made, might cause the court to sanction Lee. Lee has acknowledged it was aware that PCBs were toxic since the 1960s, and that it knew for far longer than three years both that Monsanto manufactured and GE released PCBs into the river. And to make the argument, Lee would have to claim (which it cannot) that it was not involved in the Consent Decree, entered in 2000, concluding a 30-year analysis of how to remediate the river. Done and done.
It gets worse. Lee is also suing GE and Pharmacia for criminal conspiracy. Every attorney knows—well, perhaps all but one—that you cannot pursue a criminal cause of action in a civil lawsuit. This is not even a close call. Criminal matters are brought by the state and subject to a different burden of proof (beyond a reasonable doubt). Lee lacks the prosecutorial authority necessary to bring a criminal claim. This is the legal equivalent of trying to race a sailboat in the Indy 500. Lee, why are you letting counsel pursue a frivolous claim in your name?
It is probably the case that Lee engaged its counsel on a contingent basis. Lee’s Select Board undoubtedly concluded that it had nothing to lose since the lawsuit would not cost its taxpayers much of anything. Lee’s math is wrong. Pursuing frivolous claims costs Lee credibility and its ability to lead.
Lee, you have arrived at a moment when you need to build consensus with other stakeholders. No one is suggesting that you do not have cause to be dismayed with a remediation plan that burdens the town disproportionately. Nonetheless, if you want to be part of the discussion directing implementation of the remediation plan, it would be advisable to want the others at the table not to view the town as a petulant, hot-headed child. If you will permit a bit of advice, dismiss the lawsuit. Lashing out with unsupportable claims does nothing more than burn bridges.
Survey Monkey Questions
Here is a link to the following Survey Monkey poll: “Should the Town of Lee do something more constructive than pursue a frivolous lawsuit against GE Aerospace and Pharmacia?”
Survey Monkey Results
A recent column asked the following survey question: “Should Great Barrington replace David J. Doneski, Esq. as Town Counsel?”
As of publication, 97.44 percent said “yes.” As a point of reference, only 94 percent of Americans believe that the moon landings were not a hoax.
Days Great Barrington has held Community Access Fees hostage: 174
Weeks Town Counsel has held the ADU Pilot Program hostage: 0
