by Alon Preiss
“Then you don’t need to say it,” Emmett replied. He kept his voice low. Katherine was out with some old friends from college, but Paulette was sleeping peacefully in the next room.
“No, I must. You know, you are the only one who has believed in me, and look at what has happened, thanks to you.”
“I was just doing my job,” Emmett insisted. “I was writing about a film festival. And anyway, you don’t need to thank me.”
“I always rely on the winds of fate, Emmett,” she said gently. “You are the only one who has ever done a favor for me and demanded nothing from me in return.”
“It wasn’t me,” he insisted again. “I have no power in any of this.”
“Even out here,” she said. “Everyone is my enemy. Even when they say we are friends, we are really enemies.”
Emmett couldn’t think of anything else to say.
“In America, no one says what they think,” she complained. “In Russia, if you say, ‘How are you,’ and they are not good, they say, ‘Not good.’ If they’re mad, they say they’re mad. Here, everyone is nice but plots against you.”
“Irina,” he said, “not everyone ....”
“I keep thinking ...” She hesitated, then spoke very quickly: “I keep thinking that if you were by me, you know, by my side, none of these bad things would be happening. I think, now, there is no one to protect me. There is no one to care.”
Two days later, after Emmett attended a screening of a particularly bad Polish film, Irina turned up in a limousine. The driver honked the horn, and she waved furiously. Emmett hopped into the car. “Don’t draw attention,” he whispered, and she just laughed.
“This is a real danger to you,” she said. “As you said in your article: Intrigue. You have lived a very safe life.”
She gave the taxi driver directions in Russian, and he drove and drove, over some bridge, ignoring Emmett’s protests, until they arrived an hour later at a towering castle that rose from the sea; at the top of a steeple sweeping upward from the center of the castle was a lively restaurant filled with laughing, handsome, well-dressed men and women; the walls were windows, with a view of a hazy ocean horizon. Sitting in a dark corner, Irina babbled about the promises that had been made, the disappointments she had already experienced. She reached out and touched his hand gently. Emmett didn’t brush her away. Should he? He did not know. And so her hand remained, and his guilt grew. As she continued to praise him, he wondered which was the more culpable urge: his past fantasies of seduction, when he had believed her murdered and cold in her grave for many months, or his current, perhaps requited and not impossible fascination? His heartbeat sped up. He stared down at her hand, gently caressing his fingers. He could think of nothing else.
“No gratitude is necessary,” Emmett said nervously.
She shook her head emphatically. “You search the whole world for me,” she insisted. “You looked everywhere, you chased me in a taxicab, ran after me into an alley.” She smiled. “I think I know why you did it.” She leaned over and kissed him gently on the cheek. “You are my angel,” she whispered softly in his ear, with a degree of tenderness that made Emmett excited and very uncomfortable.
As Emmett contemplated the warm touch and inherent dangers of Irina’s gentle fingers, Daniel was trying to end five years of bitter litigation, which would all come to its conclusion before a panel of three gruff judges in a fluorescent courtroom in the Third Circuit. Daniel checked into his hotel room grasping a big black binder filled with the cases on which he would rely in court the following day. In bed, he read summaries provided by a second-year associate, and recited, again and again, the case that would kill the EPA’s argument, United States v. Consolidated Rail Corp, and that opinion’s pivotal language. He repeated it so many times that it lost meaning for him.
“I’m doomed,” he thought out-loud.
His argument was so incompetent, his prospects so weak. Could he be sued for malpractice over this? He didn’t even know. He imagined a front-page article in the American Lawyer magazine, taunting Johnson & Tierney for its illfated, ill-advised foray into environmental law. He fell asleep that night with waste site liability dancing through his head. But his last, almost forgotten thought, before unconsciousness, was of Susan’s reassuring, long-lost smile, now just slightly disapproving.
During breakfast, Daniel studied his cases yet again, but at this point, his fate was sealed. He had a suspicion that the Court would entertain oral argument only because it was required; could he say anything to sway the judges? He walked into court at 10 am and said hello to Rhonda, who frowned and nodded. The competitive camaraderie at which Edna Birrell’s attorney had been so practiced was utterly lacking in Rhonda Cantor, who seemed really to hate Daniel. And now he saw something in her eyes, something genuine. Was he wrong? For all these years, he had believed her hostility nothing more than professional jealousy, and that given the choice she would gladly move to a castle in the sky and work eighteen-hour days surrounded by hundreds of attorneys representing the interests of the wealthy. Yet now he realized with a start that Rhonda’s job was her calling, a true act of faith. Perhaps, like his mother, Rhonda saw God in the rolling fields that he and Percy Edwards were intent on destroying. It was a lost cause, he wanted to tell her – there was no hope for God, for the rolling fields and for the cows in those rolling fields, for Daniel, for Rhonda, or for Percy. If you win, Rhonda, you are just delaying the inevitable for a few years. Maybe the air will smell a bit better in the last decade of the 21st century than it would have if you had lost, but you won’t be alive to see it, and no one will remember that you were responsible for it. And in the meantime, you’re eating franks and beans.
“Everything,” Daniel muttered, without realizing that he was muttering. “Everything is food for the cosmos.”
“What?” Rhonda asked.
“Does anyone ever get used to these things?” he asked instead.
Rhonda tried to smile.
“Well,” Daniel added, “good luck in there.”
“Sure,” she said. “Thanks.”
Daniel and Rhonda were third on that morning’s schedule of entertainment, following a man suing his mother-in-law for copyright infringement and a prisoner suing his guards for violation of the First Amendment. The three judges – Pitzky, Feinberg and Finnegan – were all stern men in their late sixties, and they looked essentially alike: white skin, gray hair, just slightly overweight. When the panel called EPA v. Edward Bear, Daniel spoke first. With a slight tremble in his voice, Daniel stressed his major point, the lie he had spoken so many times, to colleagues, his wife, to his friends, in the briefs he spent long midnight hours perfecting, so many times that he almost believed it true.
Edward Bear, he told the Court, had owned neither the product nor the waste. It was Plastic People’s property at all times, and no PRP had ever before been held liable under circumstances so narrow.
Were the judges nodding? Daniel actually thought he saw the judges nodding. None had interrupted him so far, a sign, perhaps, of approval. Daniel added that Plastic People had owned the trucking company that had shipped the waste, and that their records had for the most part vanished. Finally, he noted that no evidence tied the Plastic People waste to the site.
“But the site is named after Edward Bear,” Judge Feinberg said, raising an almost nominal objection. “Am I correct. Site 34 was named the Edward Bear Site. The EPA therefore draws the inference that it was the principle dumping ground for Edward Bear’s waste.”
“The name has remained since the days when Edward Bear owned the property, before it became a waste site,” Daniel added. “And we have no idea whether Plastic People decided to use that site, or some other site.”
“Why would they have traveled farther?” Judge Finnegan asked.
“No idea,” Daniel said, “but they might have. The EPA … I don’t know why they’ve drawn such inferences, but – ”
“The district court seemed convinced by th
e inference.”
“The district court was overly respectful of agency discretion. There’s a presumption in favor of the agency’s decision, but where a government agency is slapping prohibitive penalties on innocent parties, the Court has an obligation to step in.” Daniel added bitterly that the consent decree signed by the other polluters assigned a disproportionate share of the liability to Edward Bear.
Judge Feinberg frowned. “Is the consent decree at issue here?”
“No, you honor,” Daniel said, “but I was just – ”
“Was it an emotional appeal of some sort?” he asked. “Well, good try, I suppose.”
“Thank you, your honor.”
The judge smiled with surprising warmth.
When Rhonda stepped up to the podium, facing the three old men, she seemed visibly shaken. Daniel had always believed that one could predict with 70% accuracy the outcome of the case after the first attorney’s oral argument, and with 90% accuracy after the second attorney had appeared. Clearly, Rhonda was feeling the strain of Daniel’s success, and she resented it. The judges were Daniel’s people, she might have realized by now: Reagan appointees, hostile to government, sympathetic to big business. And now Rhonda hated them too. When she spoke, she was both aggressive and agitated, her voice loud and indignant. A number of times she pounded her fist on the lectern. She gave no ground, choosing to emphasize the legal invulnerability of the Environmental Protection Agency’s determinations. “Do not meddle with our decisions,” she told the Court. “Leave our conclusions untouched. Do not tie our hands. Otherwise, you will slow the cleanup of this country by decades.”
Judge Feinberg interrupted. “Your argument seems to be that the EPA should be left alone to do whatever it wants. If Plastic People held all responsibility, why should Edward Bear be held culpable? Can you do whatever you want?”
“Yes, your honor,” Rhonda said, with a hint of challenge. “That’s the point of the regulatory scheme.”
“Is it true what he says that no generator has ever been held liable under such limited circumstances?”
“Perhaps technically,” Rhonda admitted. “But that’s only because this situation is unique. It is unprecedented for a generator to assign ownership rights to the product and also the byproduct. It’s just never – ”
“But,” he said, “you just said that if we decide in favor of Edward Bear, it will hinder the EPA’s ability to deal with future pollution. If this is a one-of-a-kind dispute, how can it destroy the EPA’s future ability to – ?”
“If you begin to accept a narrow interpretation of the environmental regulations – ” She looked up at the judge, at his forbidding countenance, and she came to a complete halt. “I’m sorry for interrupting, your honor.”
“You claim," he said with annoyance, “that if we accept that Edward Bear is not liable in this case, the EPA will come to a grinding halt. How does appellant’s liability or lack of it affect EPA’s future power one way or the other?”
“I was just getting to that, your honor.”
The courtroom fell absolutely silent, and the judge raised his eyebrows very slowly.
“Well my apologies!” he exclaimed.
“I’m sorry, your honor, I just – ”
"Forgive me, counselor,” he went on, excessively flabbergasted. “Perhaps I should just wait until you get to it.”
“No, your honor. I’m just – ”
“In fact,” he concluded, “this situation is so distinctive that it will have essentially no precedential value at all. Isn’t that correct?”
Rhonda sighed. Daniel could see hopelessness in her eyes, mixed with pure hatred. “It will signal to the courts that from after this point, from now on –”
“If we decide in Edward Bear’s favor, two weeks from now you’ll be arguing that our decision should be narrowed to its particular facts, that it’s useless as authority. Isn’t that correct?” He laughed. “Or should we put you on record as admitting that from now on, the EPA has no power at all?”
... from now on, the EPA has no power at all ...
Daniel sat bolt upright in his chair. The judge was talking as though the issue were closed, and political fallout was all that now mattered.
“Your honor,” Rhonda stammered.
“I think,” he concluded, with a solemn finality, “that the EPA can afford to lose one. Every once in a while.” He looked over at his colleagues, and they all laughed.
The tape of the argument in hand, Daniel flew to California for a strategy session with Percy Edwards – he had planned to map out cleanup plans and to explain why these five years of litigation had not turned out as planned. But instead, he and Percy split a bottle of champagne. Did it bother him that this was a case he deserved to lose, and that no one else knew the truth? Standing in Percy’s office, drunk on little bubbles, the Edward Bear staff slapping him on the back – at that moment, bathed in the glory of success, the fact that this victory was patently unjust didn’t bother him at all. Partnership beckoned, and that house on the beach in Montauk.
Still, his eagerness to see Susan had been on his mind since preparations for oral argument had begun.
And so, while Irina flew back west to film some last-minute, gratuitously sadomasochistic bedroom scenes, Daniel was in a rental car heading north along the coast to an uncertain fate. He was running things through in his head – all clients had been called, all court papers filed, no deadlines missed – when suddenly he realized an oversight. His heart pounded, the blood drained from his head, and he felt so dizzy he had to pull over to one side. Everything he did was always so well-planned ... how could he have been so stupid?
He drove to a gas station, parked and ran to a pay phone. He called Janet, his secretary, and began speaking quickly to her, out-of-breath. He stopped himself. “Sorry,” he said. “How are you? Things OK?”
She assured him everything was fine.
“Listen,” he said. “I’ve done a stupid thing. I don’t know where to begin, but I’m going to ask you to do a terrible thing, and I suppose you can refuse.”
“I do terrible things for you all day long,” she said with a laugh, and Daniel laughed back hollowly.
“Sorry,” she said. “But don’t be so worried all the time. That’s the thing about you ... a nice guy, but so worried all the time.”
“OK.” He sighed. “I’ve done a thing – well, perhaps not a good thing. I’m on vacation now, you know, and I told you I’m on vacation, but I’ve just now realized that you may receive a phone call .... “
He could hear her breathing. “Something very bad has happened?” she asked. “I’m sorry. I was joking. But is this something ... should you call up Carter? Is this something that he should – ”
“No, no,” Daniel said. “Not a professionally bad thing. Not an ethical breach. Not malpractice. No, a sort of ... a personally bad thing. And I realized that you might receive a phone call about it.” He took a deep breath. “I just realized that you might receive this phone call. And I’d like ... I guess I’d like you to cover for me. To lie for me, so to speak. Or at least to repeat what I’m about to tell you, even though you suspect it may not be true.”
She laughed. “Oh, god. I used to do this stuff all the time! God, this brings back memories! You want me to tell your wife that you’re still in California on business, and that you’re tying up a few loose ends, and that you’re unreachable. Right? And if a client calls, say you’re on vacation.”
“Yeah.” Daniel laughed, embarrassed. “I’m not trying to condone this sort of– ”
“Oh, no. I don’t care. Don’t start explaining yourself. Just relax. Have fun.”
“OK,” Daniel stammered. “Thank you.”
When he arrived in San Francisco, after driving almost non-stop for eleven hours, he parked his car illegally right in front of Susan’s house, a three story home off Haight Street, across the street from the park. He got out of his car, slammed the door shut, then stood frozen on the sidewa
lk. Embarrassed at his lack of nerve, Daniel marched around the block, again and again. Susan already knew that he had arrived, he was sure. She had probably seen his car drive up to the curb, seen him get out, dressed like a lawyer, loosen his tie, then walk around the block a few times. He could not help it. Finally he stopped, marched up to the front door and pushed the doorbell with one trembling finger. “It’s Daniel,” he said steadily, as he heard footsteps pattering through the hallway. A key turned in the lock, the door swung open.
“Daniel.”
She stood in the doorway, leaned over and kissed him hello on the cheek. She seemed unrecriminating, and he felt like any old friend.
She was the same old Susan, not aged at all in the last half decade – still too young for him! – but with a certain aimless quality. She smiled more dreamily when she spoke; her mind still seemed focused on nothing, but perhaps this no longer bothered her. Maybe she’d made nothing work for her.
“Daniel. Goodness.” Now, inside the house, with the door shut, she gave him a big hug, held on for nearly a minute, then stepped back. “Let me look at you.” She smiled. “Jesus Christ, you’ve let yourself go!” Laughed. He nodded, then looked around. The downstairs living room was completely bare.
“This is a beautiful place,” he said.
“It’s been empty for months. My father was thinking of selling it, but he couldn’t quite concentrate enough ... Anyway, it’s expensive and sort of nice, but I haven’t gotten the energy to furnish it. I’m living like Buddha. Let me give you a tour.”
There was a mattress on the splintered wooden floor at the top of the stairs. Clothes spilled from a suitcase; she had no bureau. There was a small portable stereo in one corner, and she had no television, which Daniel found almost inconceivable. Then she took him up to the third story, to a completely empty greenhouse, sun pouring in from all sides. “I’ll get lots of plants someday, believe me,” Susan said unconvincingly. Daniel looked out for a moment at the tops of the neighboring brownstones. Then they walked together to the living room.