Fox River Natural Resource Damages

Background: The Fox River and Green Bay contain a legacy of toxic contamination and abuse of public natural resources by seven paper companies. The Wisconsin Department of Natural Resources ("DNR") estimated that there were 660,000 pounds of Polychlorinated Biphenyls ( "PCBs") released into the Lower Fox River between the mid-1950s and 1997.

Even after "cleaning up" the pollution, the government projects that the damage to the Fox River and Green Bay environment may persist for more than 100 years. The public will never be truly compensated for their loss of use and enjoyment of this area, but they must be compensated by the paper companies that caused the problems. Natural resource damage compensation is a vital and necessary precondition to restoring the ecosystem.

After a decade of work, the United States of America, via the Fish and Wildlife Service ( "FWS"), established a dollar amount necessary to compensate the public "for injuries to natural resources resulting from a . . . release of a hazardous substance," 43 C.F.R. § 11.80(b), in the Fox River and Green Bay site. The United States estimated that the paper companies would need to pay between $176 million and $333 million to compensate the public for the damages they caused to natural resources, depending on the efficacy of the chosen method of cleaning up the river.

Georgia Pacific (Fort James Operating Company) is responsible for 22.5% of the contamination, so it should be responsible for 22.5% of the compensation required for natural resource damages. This means Georgia Pacific should pay the public $75 million in damages.

However, on June 20, 2002, the government attempted to settle its claim for natural resource damages with Georgia Pacific for a mere $8.5 million dollars plus several land purchases of an unspecified monetary value. This amounts to only 2.6% of the $333 million damage claim.

A Federal Court judge had to approve this settlement in order for it to move forward. MEA represented the Clean Water Action Council of Northeastern Wisconsin, Inc., and in August of 2002, "moved to intervene" in Federal Court in order to convince the judge that the settlement is far too low to adequately compensate the public.

In May of 2003, Federal District Judge Lynn Adelman ruled that Clean Water Action Council of Northeastern Wisconsin would not be allowed to intervene. This was a minor setback for the group. The ruling did not uphold the settlement; it merely held that Clean Water Action Council will not be a party to the litigation. The judge could still determine, after careful review of all the facts, that the settlement does not fairly compensate the public. Clean Water Action Council, through its attorneys at Midwest Environmental Advocates and the law firm of Cohen, Milstein, Hausfeld and Toll, filed an Amicus (Friend of the Court) Brief explaining its concerns about the proposed settlement.

Status: Judge Adelman approved the settlement on March 19, 2004.