A Quick Note On Judge Hogan and the Exxon Case

[*Updates below]

By the AG’s refusal to disclose the basis for his assessment of litigation risk and the risk factors that led to his decision to settle, the Court had NO basis to review the State’s exercise of discretion. This is not judicial deference, this is judicial abdication. ~~~ Bill Wolfe

The NJ Law Journal (NJLJ) reports that environmental groups will have a tough time, see:

• Opponents of Exxon Accord Face Long Odds on Appeal, Lawyers Say

I attended the last oral argument and read Judge Hogan’s opinion, which I characterized as a “detailed roadmap to every loophole and weakness in the DEP NRD program.”

I challenged legislators to use the Hogan opinion as a basis for legislative oversight and reforms to the law and DEP enforcement of NRD claims.

I like reading the legal eagles at NJLJ, they are far better than the news reporters.  But there is one relevant aspect I think is being ignored.

This issue in the NJLJ story particularly caught my eye because it is something I’ve been thinking about:

In addition to the deference typically given to the trial judge and his or her feel for the case, the environmental groups will face an additional hurdle in that appeals courts also generally tend to defer to decisions made by government agencies, Yoskin said.

“Any government agency is going to be given some degree of deference,” Yoskin said. “They are highly specialized in their fields.”

Yoskin is correct in stating the law, in terms of what is called the judicial standard of review with respect to deference to administrative agencies.

But in this case, in my informed but non-lawyerly opinion, Judge Hogan applied the wrong standard of judicial review and deference to [DEP] agency decision-making.

The theory of deference is grounded in and justified by agency scientific and/or technical expertise. Judges defer to scientists and experts on fact questions of science because they lack the knowledge and training and because the Legislature delegates this power to the executive branch agency.

But, as Hogan‘s own opinion makes clear, in the Exxon case, DEP settled the case almost exclusively based on litigation risk. As NJLJ reported:

“Although far smaller than the estimated $8.9 billion in damages, Exxon’s payment represents a reasonable compromise given the substantial litigation risk the DEP faced at trial and would face on appeal,” Hogan said in his ruling.

Evaluation of litigation risk is an exercise of legal judgement – or discretion – that is not scientific or technical. It is not delegated to DEP by the Legislature based on agency expertise. It deserves little judicial deference and a heightened degree of judicial scrutiny than what Hogan applied.

[* During oral argument, despite the fact that, by his own words, the Settlement was based on litigation risk, the Attorney General flat out refused to defend, justify or explain his assessment of that risk. The AG stated:

“I won’t go into specifics of where the State’s case is weak. I won’t hurt the state by showing where weakness lies (close paraphrase)

By the AG’s refusal to disclose his assessment of litigation risk and the risk factors that led to his decision to settle, the Court had NO basis to review the State’s exercise of discretion. This is not judicial deference, this is judicial abdication.

Shortly thereafter, Exxon’s lawyer was not so shy. He went int detail on the specifics of where he felt the State’s case was weak.

Judge Hogan’s opinion followed Exxon’s analysis of these weaknesses very, very closely, which is what I described his opinion as a “detailed roadmap to every loophole and weakness in the DEP NRD program.”]

Second, Hogan has appearance of conflict of interest and lack of objectivity/independence as a result of the fact that he was DEP Commissioner Bob Shinn‘s legal counselor during the “Open For Business” Whitman Administration.

Why is that relevant fact not reported?

The NJ ethics law that applies to the Executive branch adopts an “appearance” standard – so does the Legislative branch’s ethics code. I’m sure the cannons of judicial ethics are even more restrictive.

Full disclosure: I had one interaction with Hogan while I was at DEP regarding proposed legislation to extend the life of the Cape May Landfill.

I advised Hogan that the bill would violate a federally enforceable settlement and closure order with the Pinelands Commission and that we should oppose the bill as inconsistent with federal law. Hogan blasted me for that and propounded a far right legal theory of federalism.

His faced turned red and he practically screamed at me:

Are you a lawyer? Do you think Congress can tell the NJ legislature what to do?

My jaw dropped.

So much for “judicial temperament” and the taboo concept of “ideology”.

[Update: A reader just raised important related issues.

The reader reminded me that during oral argument, Judge Hogan interrupted the presentation of the NRDC lawyer – something he did numerous times to NRDC, but only rarely did to Exxon’s lawyer – to say (paraphrasing):

“DEP represents the environment, so why should we let you into the case”

The NRDC lawyer had no answer. I was stunned by that.

The reader also reminded me that:

“Also the NRDC did not want to put anything on the record about DEP with holding information , lying or why they should not have the presumption of validity.”

Absolutely right on both points.

Also, both Judge Hogan and Exxon’s lawyer referred to the NRDC lawyer – several times – not as “Counselor” or by name, but as “she”.

I felt that was incredibly disrespectful and blatantly sexist. Hogan and Exxon’s lawyers never used “he” when citing the arguments of other attorneys.