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Schor writes: "The prospect of President Barack Obama tapping Sri Srinivasan for the Supreme Court is spawning a sharp debate among at least one part of the Democrats' liberal grass roots - environmentalists turned off by his high-profile defense of giant fossil fuel companies."

Srinivasan's work on human rights cases in which he defended ExxonMobil and the mining company Rio Tinto have raised particular objections from environmentalists. (photo: Getty)
Srinivasan's work on human rights cases in which he defended ExxonMobil and the mining company Rio Tinto have raised particular objections from environmentalists. (photo: Getty)


ALSO SEE: Environmentalists Fret About
Possible Obama Pick for High Court

Would Sri Srinivasan Be Exxon-Mobile's Justice?

By Elana Schor, Politico

12 March 16

 

His work as an attorney representing Enron's former CEO and ExxonMobil raises hackles among some eco-activists.

he prospect of President Barack Obama tapping Sri Srinivasan for the Supreme Court is spawning a sharp debate among at least one part of the Democrats’ liberal grass roots — environmentalists turned off by his high-profile defense of giant fossil fuel companies.

The federal appellate court judge has emerged as an early favorite to replace the late Justice Antonin Scalia, given Srinivasan’s sterling educational and professional credentials, his bipartisan work history and his inspiring biography as an immigrant who has risen to the highest ranks of the legal profession. But his history of representing large corporations runs the risk of alienating Obama allies looking to gauge his still-developing record on key liberal priorities.

Srinivasan’s work on human rights cases in which he defended ExxonMobil and the mining company Rio Tinto have raised particular objections from environmentalists. He also represented that enduring symbol of corporate excess, former Enron CEO Jeff Skilling, in the appeal of the executive’s fraud and conspiracy convictions.

"Any judge that sides with Big Oil over the American people has no place on our Supreme Court,” said Jane Kleeb, a Nebraska activist who helped lead the grass-roots campaign that killed the Keystone XL oil pipeline, in an email to POLITICO on Tuesday.

“Corporate interests have trumped citizens’ concerns for too long,” she added. “Folks in the heartland will not look the other way of Srinivasan representing both Enron and Exxon, which denies climate science and pollutes our land and water.”

Jamie Henn, co-founder of the green group 350.org, called Srinivasan’s work for Exxon a “deeply disturbing” aspect of a “mixed” resume. During his time at the firm O’Melveny & Myers, Srinivasan represented Exxon in a long-running battle over alleged human rights abuses by members of the Indonesian military whom the oil giant had hired to work on security at a major natural gas plant.

"We hope that knowing what we all now know about Exxon and its deceit, he wouldn't still want to work for them,” Henn said by email. “No decent person should."

Another environmentalist tracking the nomination said activists “are aware of Srinivasan's troubling history representing Exxon … but honestly I don't think anyone has made up their mind.”

Exxon declined Tuesday to comment on the debate over Srinivasan's work representing the company. The discussion among activists began over the weekend following the news of Scalia’s death, which occurred just days after he and the four other conservative justices shocked the administration by ordering an indefinite delay in Obama’s marquee climate change regulations.

Greens held a spirited debate about Srinivasan on Tuesday afternoon during a conference call among representatives of several groups, according to one activist familiar with the discussions. They decided to keep evaluating Srinivasan's record before making more definitive statements.

The challenge Srinivasan’s nomination would pose to environmentalists mirrors the struggle many of the activists face in the Democratic presidential primary, in which Bernie Sanders has captured green hearts with his blanket disavowals of the fossil fuel industry’s influence — something Hillary Clinton is only lately trying to match.

Srinivasan’s work for Exxon and Rio Tinto, in a since-dismissed dispute over human rights violations in Papua New Guinea, sparked harsh criticism from one green group after Obama tapped him for the D.C. Circuit Court of Appeals in 2012.

The India-born judge, who emigrated to the U.S. as a young child, “repeatedly took extreme positions that would demolish one of the few existing avenues of legal accountability for violations of the international law of human rights,” EarthRights International wrote to senators in 2013. ERI told POLITICO on Tuesday that "we have reconsidered our position" and neither support nor oppose his possible nomination to the Supreme Court, "although we continue to believe the Senate should receive full information about his work as a government lawyer that may have benefited his former corporate clients."

ERI may well have shifted thanks to several Srinivasan decisions that upheld environmental regulations since he joined the D.C. appeals court. That court is often a proving ground for jurists on the Supreme Court shortlist.

One of his earliest rulings has had a notable impact on environmental law: In 2014, Srinivasan joined two other D.C. Circuit judges in tossing out part of an Environmental Protection Agency cement rule that had shielded companies from lawsuits over pollution released during malfunctions. The EPA broadened the impact of that ruling by ordering states to drop similar corporate liability protections from their Clean Air Act compliance plans, which activists hailed as a win for low-income communities near power plants, refineries and other industrial sites.

Whether or not Srinivasan's recent judicial record balances out his past corporate client list, some greens are more worried about Republicans' vow to keep Scalia's seat vacant until after Obama leaves office than about making climate change a top-tier issue during judicial confirmation debates.

"We’re more focused on [Majority Leader Mitch] McConnell and other senators who have said there shouldn't be a nominee until after the election," League of Conservation Voters senior vice president Tiernan Sittenfeld said.

Other environmentalists are counseling their fellow activists that private-sector lawyers — such as Srinivasan used to — "have a duty to argue, to the best of their ability, for their clients" regardless of their own values, in the words of Greenpeace attorney Naomi Ages.

As for Srinivasan's harsher green critics, Ages said, "While I can't speak on their behalf, of course their knee-jerk reaction might be to question someone based on a client they’ve represented."

Srinivasan's short confirmation hearing for the D.C. Circuit, in May 2013, offered little insight as to the potential overlap between his private-sector work and his public face on the bench.

“I don’t have an overarching, grand unified judicial philosophy that I would bring with me to the bench,” Srinivasan told senators then, adding that he would “approach it in some sense in the position of a litigator.”

Brad Johnson, executive director of the green group Climate Hawks Vote, was still skeptical of Srinivasan's corporate background. "There are enough fully qualified candidates for the Supreme Court that I personally don’t think it’s necessary to pick someone who you have to ask these questions about," he said Tuesday.

Still, he added, activist groups are keenly aware that "to challenge President Obama on a decision is something that takes a lot of work to do correctly. It's important that the environmental movement be very clear with the American public about how crucial the Supreme Court is to the future of climate change."

In various other cases since joining the appeals court, Srinivasan has sided with the Obama administration, including upholding an EPA program enhancing oversight of mine permits and keeping in place a $72 million fine against a Volvo subsidiary in a case involving cheating on emissions tests. Last year, he rejected various challenges from both environmentalists and industry groups to EPA's list of areas that failed to meet a 2008 standard for ozone pollution.

Srinivasan joined two other judges in 2014 to say EPA had gone too far with a rule that eased some state deadlines for ozone compliance — a ruling that sided with environmental groups. He has also ruled that environmentalists could sue to seek historical protections that would block mining on a West Virginia mountain.

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