Legislature unanimously passes tainted water lawsuit bill; Governor signs bill into law, confident deadline will be met

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The Legislature unanimously passed Gov. Lou Leon Guerrero’s Prutehi I Hanom Act of 2019 during special session Wednesday afternoon.

The Legislature unanimously passed Gov. Lou Leon Guerrero’s Prutehi I Hanom Act of 2019 during special session Wednesday afternoon.

The governor’s bill seeks to protect the waters of Guam by authorizing the acquisition of specialized legal services to assist in legal actions against the manufacture and use of perfluorinated chemicals, a group of more than 4,000 compounds collectively known as PFAS.

The special session was postponed twice last Monday as senators voted to have the governor’s bill undergo a public hearing first.

But the governor had insisted that time was of the essence in authorizing the specialized legal services because the “window of opportunity” is even smaller than initially believed, with the deadline to add parties to existing class lawsuits against PFAS manufacturers set at Aug. 4.

According to the governor, the Legislature’s lack of urgency on the issue of PFAS last Monday is concerning because other jurisdictions have already begun the process of suing those responsible for the harm caused in their cities and states by PFAS contamination.

This resulted in Wednesday’s special session during which the Legislature called several agency heads and experts to testify including Attorney General Leevin Camacho, Guam Waterworks Authority General Manager Miguel Bordallo, Guam Fire Department Chief Dan Stone, and Deputy AG Fred Nishihara of the Consumer Protection Bureau.

Nishihara testified that this particular class-action lawsuit that the governor wants to join is proceeding “very quickly” and faster than the usual litigation of this type which usually takes years before proceeding.

Guam Fire Department Chief Dan Stone and representatives from the airport fire department also admitted that their departments still use PFAS, but only as a last resort since water is their primary means of fire-fighting.

GWA general manager Miguel Bordallo also testified that GWA has been testing for PFAS since 2015 but he assured that no PFAS have entered the utility’s distribution system.

But perhaps the most compelling testimony coming out of the special session came from Attorney General Leevin Camacho who stressed the need to act quickly on the governor’s bill.

“A suit of this type will require the use of consultants and additional counsel to put forward the strongest case for Guam. This bill would give our office the resources to best navigate a case that will involve hyper-technical scientific analysis and the assistance of attorneys who specialize in environmental and multi-party litigation,” Camacho said.

According to the AG, the exact cost of the litigation is unknown and if the Government of Guam were to pay upfront for consultants and legal services, it is expected that costs would quickly reach hundreds of thousands of dollars just for the initial phases of research, filing, and discovery.

“We will be transparent about any agreements with experts. If the Legislature passes this bill, we would engage in a quick and well-documented process of comparing the fees, experience, and availability of firms willing to assist Guam. The AG’s office is the chief legal representative for the Government of Guam and it is also a steward of public funds,” Camacho said.

The AG acknowledged that law firms have expressed interest in representing Guam, but said his office has not received or solicited any formal proposals, discussed any specifics regarding representation, or committed to selecting any law firm.

To get the best possible representation and the best fee structure, even with the authority afforded by the governor’s bill,  it will take several weeks to compare and engage expert services, research the claims available, identify all responsible parties and finalize a complaint, the AG said.

“If the Legislature does not pass this bill, my office could put together a preliminary complaint. Although we one day hope to have the internal resources to file cases like this, we do not currently have the expertise or funds that would be available to a law firm or consultant that specializes in these types of cases,” Camacho said.

“Without immediate action, we could then ask the Legislature for an appropriation so that we could use the existing procurement process to acquire legal or other expert services. This method is less than ideal and could jeopardize our ability to represent the Government in the best possible way,” he added.

The AG echoed Nishihara’s testimony on the need for urgent action because current
multi-district litigation related to PFAS contamination is proceeding quickly.

“The existing procurement process may mean we miss an opportunity to be heard in a
forum that is already familiar with these types of cases. It could also limit our  ability to seek relief against all parties responsible for the harm caused to Guam’s water. Filing a claim against private parties would not preclude subsequent action against any government entity where damages warrant legal action,” Camacho said.

He added that using a firm that has previously participated in environmental contamination suits means that Guam would not have to start at step one because the firm’s prior experience can provide knowledge of potential defendants, required measures to  prove contamination, possible methods of payment or remediation, and other useful
information.

Moreover, the AG said that the use of a contingency fee arrangement presents an opportunity for Guam to engage in large-scale litigation related to damage to the island’s environment, without first having the money to acquire the expertise necessary to competently pursue these claims.

“With regard to keeping the Governor, Legislature, and the public notified of the progress in this litigation, I fully support the concept that the status of the litigation should be reported by our office. Such status would and should be public information. In particular, if during the case we uncover information that there is a new and significant danger to our water or our people, we should report it. However, I note that reporting on the status or cost of litigation is very different from reporting on litigation strategy or communications between our office and our consultants. The privilege to protect the confidentiality between an attorney and a client is long and deep-rooted for a reason; a client and attorney need to speak freely without worry that information relevant to legal strategy may be revealed to opposing parties and damage their case. Our community, including several members of the Legislature, has been calling for action to address this issue for years. Every day that passes is a day that we could be working to secure the best firm available, at the best rate, to file the best case for Guam,” Camacho said.

After the senators went back to the Committee of the Whole and voted unanimously in favor of the governor’s bill, the AG sent out a statement saying he was pleased with the outcome of the special session and the vote to pass the bill.

“We are ready to work and keep the upcoming process as transparent as possible,” Camacho said.

Senator Regine Biscoe Lee, who previously voted to have the governor’s bill undergo a public hearing first, said that this time, she supported an immediate vote on the bill.

“I support this legislation and the litigation that will ensue. That is why I voted for it. While I do have serious concerns about any bill for which debate is limited or a public hearing is waived, I will not deny our people future justice when the AG clearly stated emergency conditions exist,” the senator said.

During an interview with the Phill Leon Guerrero show on K-57, Gov. Lou Leon Guerrero said that with the Legislature’s passing of her bill, she is now confident that the deadline to join the lawsuit can now be met.

The governor also thanked the Legislature for holding the special session and expediting the vote on her bill.

“It shows that the senators are just as concerned over our drinking water,” Leon Guerrero said.

The governor later signed the bill into law during the Dededo community safety meeting which she attended.

Speaker Tina Muna Barnes looks on as Gov. Lou Leon Guerrero signs the Prutehi I Hanom Act of 2019 at the public safety meeting in Dededo.(PNC photo)