Gerald Heaney

“ Fiction, however, is by definition not factual. Therefore, as the Ninth Circuit has stated, "if a speaker knowingly publishes a literally untrue statement without holding the statement out as true, he may still lack subjective knowledge or recklessness as to the falsification of a statement of fact required" to find actual malice. ”

“ Perhaps the most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan. So long as the national standards are met, the State may select whatever mix of control devices it desires, * * * and industries with particular economic or technological problems may seek special treatment in the plan itself. * * * Moreover, if the industry is not exempted from, or accommodated by, the original plan, it may obtain a variance, as petitioner did in this case ”

“ The Missouri Implementation Plan was approved on May 31, 1972. Now, nearly seven years later, Union Electric is still not in compliance with the plan's SO 2 emissions limitations at its Labadie or Sioux plants, and the State of Missouri has yet to finally approve or disapprove its request for a variance from existing standards.
This statement of fact is not necessarily intended to point the finger at Union Electric, the State of Missouri or the EPA. All have been responsible in one way or another for the delays that have occurred. ”

“ It is only to emphasize that we can only be faithful to the mandate of Congress if we require strict adherence to the procedural routes which it established for bringing clean air to the nation.
In Fry, we did not consider a contention by Union Electric which was deemed important by the District Court, I. e., that Union Electric has a due process right to contest the validity of the emission standard without necessarily having to face ruinous penalties if it loses its action. ”

“ Telecom does not challenge the above facts. Rather, it argued that because Contrux obtained $ 1,000,000 in liability insurance through Telecom, Contrux had sufficient funds to meet its obligations to tort claimants. The district judge rejected this contention, stating:
Whether a corporation is undercapitalized is a question of fact which turns on the nature of the business of the corporation and the risks that business necessarily faces. ”

“ Globe International, Inc., published archive photographs of Nellie Mitchell to illustrate an unflattering and fictional story in one of Globe's supermarket tabloids. Mitchell sued Globe for defamation, invasion of privacy, and intentional infliction of emotional distress. The jury found for Globe on defamation, but returned a verdict for Mitchell on the remaining claims, awarding $650,000 in compensatory and $850,000 in punitive damages. Globe appeals, contending there was insufficient evidence to support the verdict as a matter of law. ”

“ Thus, it cannot be said that confiscatory fines and penalties will Necessarily be incurred. Indeed, the Administrator apparently feels, in this case, that he has a third alternative that of staying enforcement until the resolution of Union Electric's variance request. [8]
Union Electric makes a corollary argument that it must, at some point, have a forum in which to raise its contention that compliance with the Missouri Implementation Plan is economically and technologically infeasible, and that denial of such a forum results in its property being taken without due process of law. ”

“ Now, to impose upon a party interested the burden of obtaining a judicial decision of such a question (no prior hearing having ever been given) only upon the condition that, if unsuccessful, he must suffer imprisonment and pay fines, as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid. ”

“ Globe published a fairly accurate account of Mitchell in the November 25, 1980, issue of the National Examiner. A photograph of Mitchell, purchased from the Baxter County News, accompanied that story.
The same photograph appeared again on the cover page of the October 2, 1990, edition of the Sun with the headline "Pregnancy forces granny to quit work at age 101." Customers at supermarket checkout lines in Baxter County who scanned the cover page of the Sun saw only that Nellie Mitchell was featured next to a headline about a "granny" forced to quit work because of pregnancy. ”

“ He also noted that if the Agency seeks retroactive civil penalties, a company can protect itself by invoking the equitable doctrine of laches if the Agency failed to promptly seek enforcement. [6] Id. at 891 & n.4.
Union Electric would have us distinguish Fry on the grounds that the plaintiff in Fry sought pre-enforcement review of an EPA compliance order while, here, it seeks only a temporary stay of any enforcement action which may be undertaken by the EPA pursuant to the notice of violation while a state variance from the emission limitations is sought. ”

“ The outward manifestation of her humiliation and depression was limited to avoiding other people for a few days and a temporary loss of a certain blithe cheerfulness, apparently typical of her personality, which one witness described as a loss of the "sparkle" in her eyes. ”