LAW:

Students' role in farm pollution suit angers Md. lawmakers, sparks nat'l debate

BALTIMORE, Md. -- Here at the University of Maryland Environmental Law Clinic, much of the work is done by third-year law students.

They are hardly high-powered attorneys, working only for course credit and real-world experience. Many of them still are not sure what they will be doing after graduation. But their clinic's involvement in a pollution suit against poultry farmers on Maryland's Eastern Shore has prompted a fight in the Maryland Legislature.

Less than a month after the clinic and environmental advocacy groups filed the Clean Water Act lawsuit against Perdue Farms Inc. and an 80,000-bird poultry farm, both houses of the state Legislature passed measures requiring the clinic to hand over a breakdown of clients and budgets from the past two years.

The Senate's measure would have pulled $250,000 from the university if it did not comply, but proposed penalties were stripped from the House version. All financial measures were eliminated Tuesday when lawmakers reconciling the two amendments struck a compromise that left the disclosure requirement intact.

The issue has drawn national attention within the legal community. The American Bar Association weighed in earlier this month, issuing a statement that accused the clinic's critics of intimidation.

State Sen. J. Lowell Stoltzfus (R), who introduced the Senate measure, contended that the clinic should not be able to use public funding to pursue environmental lawsuits against small farmers. Maryland lawmakers would not send taxpayer money straight to environmental advocacy groups such as Assateague Coastkeeper and the Waterkeeper Alliance, he said, so why should they fund clinics that do their legwork?

"Small family farms on the lower Eastern Shore have survived only because of the poultry industry," Stoltzfus said in an interview. "If we have this harassment in the courts, they're going to go away."

While law students rarely have the chance to duke it out in court with advocacy groups and industry attorneys, the clinics have introduced themselves into the national environmental litigation scene by establishing ongoing relationships with advocacy groups. Students in the clinics cut their teeth on the time-consuming background work for environmental cases, preparing for a career in environmental litigation.

The controversy is just the latest in a series of political fights over law schools' use of state funds and student attorneys for environmental litigation. Several clinics have run afoul of industry groups and lawmakers by taking on controversial cases, sometimes finding themselves forced to rethink the way they operate.

Though many clinics try to distance themselves from politics, Maryland's program doesn't try to hide its environmental bent.

Jane Barrett, an associate law professor who leads the clinic, said it has always considered itself a protector of the state's natural resources. Environmental statutes at the federal and state levels include citizen lawsuit provisions so groups like hers can make sure the laws are enforced, she said.

"I don't think that having an interest in clean air, clean water, safe neighborhoods, a healthy and productive Chesapeake Bay, is a special interest, or somehow at odds with the interest of the states. If the Chesapeake Bay continues to decline ... then that's going to affect additional fisheries; it's going to affect recreation. Those are economic interests," Barrett said. "Should the state be paying for that? Absolutely. We're not doing anything other than trying to make sure that the laws that Congress and our state legislatures passed are actually implemented."

Courts and classrooms

The clinics have proliferated since 1976, when a pair of University of Oregon professors started a pioneering program to get their students involved in conservation cases. About 1 in 5 U.S. law schools had an environmental clinic in 2008, according to a survey by the Center for the Study of Applied Legal Education.

Prospective law students are increasingly drawn to public interest work and distinctive real-world experiences, said Karl Coplan, a law professor who runs the environmental clinic at Pace University in New York. One program at Pace lets students train in environmental diplomacy, representing small island nations involved in U.N. negotiations. Another allows them to work closely with environmental groups such as the Waterkeeper Alliance, laying the foundations for Hudson River cleanup cases.

"These students often get to do things -- have court appearances, take depositions -- that at a firm they might not be allowed to do for three or four years, or even longer," said Coplan, who runs the program along with environmental activist Robert Kennedy Jr., chairman of the Waterkeeper Alliance. "We give them that experience before they've even graduated."

At the University of Maryland's clinic, 10 law students work about 20 hours per week on clinic assignments, fitting in the work between regularly scheduled classes. Assign that type of workload to the hundreds of law students and faculty at the roughly 30 environmental law clinics nationwide, and you get millions of dollars in free labor going toward environmental litigation each year.

Chris Montague-Breakwell, a third-year law student in Maryland's environmental clinic, decided to earn a law degree while working at an environmental advocacy group, the California-based Committee for Green Foothills. Working at the clinic has provided him with practical experience in environmental litigation, which he intends to pursue after earning his degree, he said.

While working at the environmental group, "it seemed like the most powerful people in the room, accomplishing the most good, were all lawyers. They convinced me to go to law school," Montague-Breakwell said. "It's almost disappointing to go to classes after working in the clinic, because this is what I went to law school to do," he added.

The relationships between environmentalists and law clinics are symbiotic: Advocacy groups bring in a steady stream of real-world cases, and law students help the groups stretch their litigation budgets.

At the Center for Biological Diversity, which has ongoing relationships with several environmental clinics, working with law students reduces the need for additional clerks and interns, said John Buse, the group's legal director. And because the students helping with cases are supervised by law professors, the advocacy group's in-house attorneys can spend their time on litigation rather than training and management.

"The students are typically doing legal research, drafting memos -- that sort of basic work," Buse said. "They aren't going out and arguing in court, though they're really included in guiding strategy and formulating tactics."

The cost savings aren't huge, and the clinics aren't as flexible as in-house employees, he added, but "we have plenty of projects we'd want farmed out to clinics. It's up to them to make the call."

Environmental justice

Few law school clinics openly profess environmental goals or claim to protect the public interest. Most clinics say their primary goals are educating students and representing clients who could not otherwise afford counsel.

One way or the other, the environmental clinics tend to press their fingers on one side of the legal scale. But that doesn't make their work political advocacy, says Adam Babich, director of the Tulane Environmental Law Clinic. Most students who go through the clinic believe in the merits of environmental regulation, but the law school's job is "to train environmental lawyers, not environmentalists," Babich wrote in a 2004 essay titled "The Apolitical Clinic."

"By making legal expertise available on environmental issues to people who could not otherwise afford it, the clinic helps improve the regulatory system and thus advance environmental protection," he wrote. "But questions about how to balance environmental protection with other goals, or how to protect the environment in any specific situation, raise issues of policy. And clients, not clinic lawyers or student attorneys, decide policy issues."

Maryland's clinic, though, openly advocates for environmental protection. Along with the Waterkeeper Alliance, the group researched and drafted legislation to expand Maryland's standing laws, making it easier for citizens and groups to file enforcement lawsuits.

Barrett said the clinic has also recently increased its emphasis on environmental justice, the notion that poor or underrepresented communities should not be disproportionately affected by environmental problems.

"The clinic's goals have always been to improve the environment in our state, region and nation, improve the system of law and policy that protects it, and develop future environmental lawyers," says a mission statement on the law school's Web site. "Specifically, one of the clinic's primary goals is to help address the continuing degradation of the Chesapeake Bay watershed."

In January, two months before the poultry farm lawsuit was filed, the Maryland State Builders Association sent a letter to the university's chancellor criticizing the use of public money to push the "narrow agendas of private special interest groups." The construction and building industries, which have already lost 60,000 jobs, stand to shed more because of the law clinic's taxpayer-funded opposition, the letter said.

Chicken fight

Critics of Maryland's clinic say the poultry farm case turns the environmental justice narrative on its head.

Though the alleged releases of pollution into Chesapeake Bay could affect everyone, including poor people lacking the resources to take action, environmental advocacy groups filed the lawsuit. The citizen plaintiff named in the case is Kathy Phillips, executive director of Assateague Coastal Trust. Phillips lives in Ocean City, Md., a beach resort town about 10 miles east of the farm.

And while Maryland-based poultry company Perdue is named as a defendant in the suit, the lawsuit focuses on a family farm in Berlin, Md., owned by Alan and Kristin Hudson. Already struggling to stay in the black, the farm might be forced out of business by legal bills, attorney Hugh Cropper IV told the Baltimore Sun last month.

Maryland Agriculture Secretary Buddy Hance issued a statement last week supporting the Hudsons, saying they have responded to concerns by going above and beyond their legal responsibilities. The farm moved its sludge to a covered location away from the drainage ditch leading to the Chesapeake Bay, he said.

"The family finds itself defending against a lawsuit and negative public opinion generated by the waterkeepers' accusations," Hance said in a statement last week. "By suing the Hudsons, the waterkeepers are threatening thousands of farm farmers, who are not much different than most working families across Maryland that are trying to make ends meet."

Stoltzfus, the state senator who backed the disclosure requirements, said the dispute over Maryland's clinic shouldn't be considered a case of big business against environmental protection. Without small farms, he said, the Eastern Shore would be far more developed, creating further environmental problems for the Chesapeake Bay and other natural resources.

Driving small farms out of business won't make the environment better, Stoltzfus said, and it certainly won't help the farmers.

Barrett said small poultry farmers aren't being forced out of business by litigation, but rather by the practices of agribusiness giants. The lawsuit against the Hudsons named Perdue as a defendant, arguing the company should be held responsible for waste produced by its suppliers.

"There is a moral responsibility when you destroy people and family farms. [The clinics] need to consider that," Stoltzfus said. "It seems that the people don't matter as much in this case, which is antithetical to what they aspire to. They want to represent the downtrodden and the indigent, and in this case, they're doing just the opposite."

Clinical trials

Environmental clinics have grown accustomed to the type of political blowback that Maryland's clinic has encountered.

The University of Pittsburgh's clinic scrambled to find new funding streams about 10 years ago after state lawmakers specifically modified the college's appropriations bill to bar the clinic from using public money. The change resulted from a controversy over the clinic's involvement in lawsuits to block timber sales in Pennsylvania's Allegheny National Forest.

Rutgers University was taken to court by real estate developers in 2006 after the school's environmental clinic represented opponents of a controversial shopping mall project. The public-records case went all the way to the New Jersey Supreme Court, which sided with the clinic.

And the University of Oregon's pioneering clinic was spun off from the university in 1993 after state lawmakers, angry about law students' work on endangered species litigation, threatened to shut down the entire law school. Students and faculty spent more than a decade helping conservation groups wrangle with the timber industry before business groups persuaded state lawmakers to place the clinic on the chopping block instead.

"Anytime someone defends poor people and helps environmental justice communities defend their rights, they seem to face attacks on their ability to represent their clients," said Emily Collins, who became supervising attorney of the University of Pittsburgh's clinic in 2008.

While environmental clinics at publicly funded schools have historically taken the most flak, lawmakers and industry groups have also targeted law students at schools such as Tulane University, who frequently represent Louisiana community groups in pollution lawsuits against businesses.

After Tulane's clinic helped block the construction of a $700 million polyvinyl chloride plant in Convent, La., claiming the facility's pollution would disproportionately affect poor neighbors, industry groups petitioned the Louisiana Supreme Court to examine whether the unlicensed attorneys had overstepped their legal boundaries.

The court tweaked Rule XX, its policy on student attorneys, in 1998 to restrict the circumstances under which law students could participate in litigation. To be represented by students in Louisiana, potential clients must now pass a means test for poverty.

No matter the field, law school clinics often feel pressure to avoid controversy, according to a forthcoming survey conducted by University of Michigan law professor Bridget McCormack. Of the clinic faculty members surveyed, 36 percent reported concerns about reactions to their casework, and 15 percent said those types of concerns had affected their choices of cases.

The next generation

Critics of law school clinics have typically focused on their close ties to advocacy groups, which see the clinics as a "training ground for the next generation of environmental lawyers," said Jason Rylander, a staff attorney at Defenders of Wildlife.

Several of the 10 law students currently enrolled in the University of Maryland's clinic previously worked with environmental advocacy groups or intend to use their law degrees for that purpose.

That was the experience of Bob Irvin, an alumnus of the University of Oregon's clinic who is now senior vice president for conservation programs at Defenders of Wildlife. As a law student, Irvin did early administrative groundwork for cases involving Columbia River salmon and piping plovers, shorebirds found on dune beaches along the Pacific coast. It convinced him to spend his career in wildlife law, he said.

"There were lots of law students like me, who went to law school to learn how to become an advocate for the environment," Irvin said. "It was a key part of the training for those of us who went through it, and there was also a deep sense of outrage that folks would put pressure on the clinic, saying that it was improper for a public institution to have a voice on behalf of interests that were largely unrepresented."

After being forced to spin off from the University of Oregon, the clinic became the Western Environmental Law Center, a self-styled "nonprofit public-interest law firm" that receives no state money and maintains only an informal connection to the university.

The center, which now has four regional offices across the West, continues to take on University of Oregon law students for help with litigation. The students do legwork for about 10 full-time attorneys, who are "working a docket that's many, many, many times greater than what it was when we were tethered to the university," Executive Director Greg Costello said.

A feeling eventually emerged that the political fight "was the best thing that ever happened to us," he said. With political pressure from lawmakers relieved, the organization also became free to shift its focus to full-fledged advocacy.

"At our genesis back in '93, it was very much a model of providing necessary legal services to the conservation community. You can define that various ways," Costello said. "Since then, we have evolved into an organization with organizationally driven goals and objectives to advance our mission, which is, in essence, to protect the West's wildlands."

Click here to read the lawsuit against the poultry farm.