War of the Whales (16 page)

Despite the 100-degree heat and noxious air, Joel spent most summer afternoons on a public tennis court pounding balls against a wall or against anyone who would brave the smog. When he’ d worn out his father or older brother, he’ d go back to hitting against the wall. Reynolds was a natural athlete with a compulsive streak that helped him hone his talents in any sport he set his mind to. He could also be as competitive and tenacious as it took to prevail. He was typically the last boy standing on the tennis court, the baseball diamond, or the basketball court. In the winter, he would ski until after the last lift had closed. He liked to ski fast, arms flailing, straight down the mountain.

Joel’s only athletic deficit was his poor depth perception. He’ d been born with badly crossed eyes, a condition his mother attributed to an allergic reaction to strawberries she suffered while pregnant. Only one of his eyes could focus at a time. The other wandered, collecting unfocused information, unable to track or fuse with its mate. He was also seriously nearsighted. Joel’s early childhood was a perpetual round of visits to eye doctors who prescribed ocular exercises that never seemed to help. By the age of five, he’ d undergone three operations to reengineer his eye muscles into alignment, but they were only partially successful. He wore thick, clunky glasses through grade school, and his vision was never fully corrected until a follow-up surgery decades later.

Joel was a smart kid who understood that his lousy depth perception meant he’ d never play sports professionally. But he was talented and adaptive enough to compete and win. And winning is what made it worth the effort. Tall, lanky, and graceful, he played with finesse or power as the situation required, and he didn’t wilt under pressure. He enjoyed baseball and basketball, but tennis was the sport he competed in through high school. His tactic was simply to rally his opponent to death, patiently returning any shot across the net until he forced the other guy to make an error. It was an effective stratagem. With no formal instruction, he became the number one seed on his high school tennis team, winning the regional singles championship during his junior and senior years.

Identifying and then relentlessly exploiting his adversary’s weakest point would be the hallmarks of Joel Reynolds’ long-running legal battles, beginning with his first big case after graduating from Columbia Law School in 1978. After completing a federal court clerkship in New York, Reynolds turned down a job offer from a corporate firm where he’ d worked the previous summer. Instead, he accepted a one-year fellowship with the Center for Law in the Public Interest in Los Angeles. It paid only $12,500, but it was the premier public interest firm in the country.

For four years, the Center had been fighting a rear guard action to keep the Diablo Canyon nuclear power plant, being constructed along the stunningly beautiful California coast at San Luis Obispo, from going on line. The other lawyers at the Center had come to view the case as a headache and a loser. When they offered Diablo Canyon to Reynolds, he jumped in with both feet.

By the time Reynolds entered the fray, Diablo Canyon’s construction was 98 percent complete, and its owner, Pacific Gas & Electric Company (PG&E), was well on its way to getting license approvals from the Nuclear Regulatory Commission to start up its two nuclear reactors. In the 17 years since PG&E first bought the 750 acres of pristine coastline as the plant site, Diablo Canyon had become a flashpoint in the antinuclear movement. Demonstrations, lawsuits, and the belated discovery of a major earthquake fault running offshore of the plant had already cost PG&E a billion and a half dollars in overruns. The utility was determined to do whatever it took to get its reactors on line and generating electricity—and revenue.

The controversy had all the elements that fueled Reynolds’ sense of outrage: an irreplaceable and spectacular natural environment under assault by a huge corporation in league with a captive federal regulatory agency. His local client, the San Luis Obispo Mothers for Peace,
¹
was composed of scores of smart, determined women and their families who welcomed Reynolds warmly to their cause. Although he realized that the plant was a virtual fait accompli, Reynolds relished the chance to dive into a high-profile, high-impact case. It was 1980, just a year after the partial core meltdown at Pennsylvania’s Three Mile Island nuclear plant. The showdown between the nuclear power industry and the antinuclear movement had come to a head at Diablo Canyon.

The only problem was that Reynolds had never actually practiced law. He’ d recently passed the California bar, but he’ d never filed a lawsuit or sought an injunction, much less attended a regulatory hearing. He knew nothing about nuclear energy, public utility law, or the Nuclear Regulatory Commission. Commuting to San Luis Obispo by motorcycle, he found himself living for weeks at a time in a strange town with no support staff or supervision, faced off against the country’s second largest utility and its army of staff attorneys, outside counsel, consultants, and experts.

Reynolds’ legal strategy for derailing the PG&E juggernaut was simple: poke a stick into its spokes as many times and in as many ways as possible. If one stick broke, find a bigger stick. If that didn’t work, roll a boulder onto the tracks. Whatever slowed down the utility’s march toward an operating license increased the chances that public and judicial opinion would keep it from going on line—or at least make it safer if it did.

Reynolds’ life became an adrenaline-fueled blur of work, stress, and elation, as he scrambled to put together a case and run it with no money, staff, or experience. He asked for advice wherever he could find it: about deposing experts, cross-examining witnesses, filing lawsuits, and arguing appeals, the physics of pressurized water reactors, quality assurance, nuclear risk assessment, emergency preparedness, and the differences between Westinghouse and Babcock & Wilcox reactor designs. And he had to learn it all inside a fishbowl, because the administrative trials were conducted in front of packed hearing rooms and covered daily by the
Los Angeles Times
and California news stations.

Reynolds found no shortage of safety violations to pursue, from design and construction problems to evacuation plans that ignored the possibility of an earthquake. He filed lawsuits challenging the loading of the radioactive fuel, testing of the plant, and then operation. In August 1984 the court of appeals in Washington, DC, blocked the operating license the Nuclear Regulatory Commission had issued to PG&E—an order Reynolds successfully defended in his first appearance before the US Supreme Court. But two years later, in a 5–4 decision written by Judge Robert Bork, the court of appeals upheld the Commission’s issuance of a full-power license for Diablo Canyon.

Though he’ d lost a long, hard-fought campaign, Reynolds had the satisfaction of knowing that by the time it finally went on line, Diablo Canyon was the most rigorously reviewed nuclear plant in the country. And PG&E was $5 billion over budget. Any utility that might consider building a nuclear power plant would worry that Joel Reynolds, or someone like him, would tie it and its profits up in court for a decade or more. For the next quarter century, no utility in America dared to try.

Regardless, the Diablo Canyon defeat would haunt Reynolds for as long as its twin containment domes loomed over his beloved California coastline. He resolved to carry the tough lessons of Diablo Canyon into future battles: If you let yourself be outmanned and outgunned, you’re likely to lose. Be skeptical of government regulators, since they’re likely to become captive to the interests they’re supposed to police. You can’t win every fight—in fact, if you’re always winning, you’re not taking on tough-enough battles—but do everything you can to improve your odds of winning.

He moved on to win a string of legal victories, both before and after he joined NRDC in 1990. He sued cities and counties to clean up sewage discharges into Santa Monica Bay. He blocked construction of incinerators and prisons in low-income neighborhoods that opposed them. He secured lead screening for all poor children in California, and near his hometown of Riverside, he sued for cleanup of the Stringfellow Acid Pits, one of the largest toxic waste dumps in the country.

Reynolds with his son, Sam, in 1992, two years after he joined NRDC.

It wasn’t until 1994 that Reynolds began butting heads with Fisheries—and with the US Navy—over threats to whales and other marine mammals along the California coast. For several years, he was the only person at NRDC working on whale issues. But he was determined not to fight solo against well-armed adversaries, as he had on Diablo Canyon.

Reynolds in 1994, when he first sued the US Navy and blocked its explosives testing in the waters adjacent to Channel Islands National Marine Sanctuary off the California coast.

When Reynolds found funding to staff up his marine mammal program, he recruited Michael Jasny to the fight. Or more precisely, Jasny enlisted. After graduating from Harvard Law School, Jasny had gone back to school to study his first love, English literature. Midway through his PhD program at UCLA, Jasny started hearing about the lawsuits that Reynolds was filing, and winning, across town. He couldn’t resist stopping by NRDC’s office to introduce himself and offer his services. Reynolds needed a young gun who could keep up with him intellectually, master both the legal and scientific complexities of marine mammal law, and write for judges and for the lay public with equal persuasion. Jasny filled the bill. And he was whip-smart enough to recruit and work with scientific experts in bioacoustics and marine mammalogy.

As a temperamental counterpoint to Jasny, Reynolds also hired Andrew Wetzler, an associate at the whitest of white-shoe law firms: Cravath, Swaine & Moore. Where Jasny was intense and passionate, Wetzler was relaxed and even-tempered. A religious studies major at Brown University before diving deep into environmental philosophy and then law school, he was as steadfast and as tireless as a Clydesdale. He clinched his job interview with Reynolds—an inveterate workhorse himself—when he remarked, “I haven’t eaten at home in two years. I eat all my meals in the Cravath dining room.”

After his late-night call from his friend at Fisheries, Jasny barely slept. An obsessive perfectionist and sweater of details, he soothed himself by working hard, and then harder. Early the next morning, he was parked outside a marine supply store in Marina del Rey, waiting for it to open. He bought its largest nautical map of the Bahamas, mounted it on foam board, and hung it on his office wall. By noon, the map was dotted with color-coded pushpins marking every beached whale by species and location and time of stranding. By day’s end, he and Wetzler had also mapped every US naval installation within 500 miles of Abaco.

Jasny was ready to brief his boss. But first he had to track him down.

9

Joel Reynolds Among the Friendlies

For the first time in years, Joel Reynolds was enjoying a few days off.