Shapiro, Bruce, The Nation
Judge Stephen Breyer puts his money where his jurisprudence is. Breyer is now well known for his belief that environmental regulation and cleanup laws have gone too far. In his book Breaking the Vicious Circle, he presents this view as an attempt "to better resolve the human problems of our times." Maybe. But could it also be an attempt to resolve the financial performance of his own portfolio? Judge Breyer has concentrated his considerable wealth in those companies that have the most to gain from weakened hazardous waste laws, in particular the federal Superfund cleanup statute. And, raising important questions about his ethical standards, Breyer has sat as a judge on at least five Superfund cases (and many other toxic waste cases) while holding large investments in companies whose financial performance rides on precedents set by Superfund rulings.
On June 24 Timothy Phelps of Newsday revealed that Breyer was an investor in a Lloyd's of London syndicate even while ruling in Superfund cases affecting Lloyd's. The White House denied any wrongdoing by Breyer. But Breyer's investment records since 1988 reveal the Lloyd's incident to be merely the tip of that particular iceberg. His portfolio is a Who's Who of chemical companies, pharmaceutical manufacturers and specialty insurers, all of whose futures the companies themselves say are closely tied to Superfund court precedents.
To understand this conflict of interest, one must first understand Superfund, authorized by Congress in 1980 to deal with the crisis posed by toxic waste dumps like Love Canal. When the Environmental Protection Agency identifies a hazardous waste site, it pays for a cleanup through Superfund. The dumper and other parties are asked to pay for a share of the costs; if they refuse, the E.P.A. sues them in federal court. When the companies finally pay up--voluntarily or under court order--they turn to liability insurance companies, which currently assert that Superfund claims run twenty times ahead of their cash reserves. (Breyer argues that much of this cost could be saved if the E.P.A. would forgo "the last little 10 percent" of Superfund cleanup.)
Breyer, with his wife, Joanna, holds investments--at present over $250,000 worth, not counting $225,000 still at risk in Lloyd's--all along this Superfund food chain, and over the past decade Superfund-related investments have consistently dominated his portfolio. He holds stock in major polluters like Occidental Petroleum, still in court over its liability for Love Canal. …