'There's lots of lawyering to be done' as pollution, energy disputes cross borders

DETROIT -- It's only a short drive for Marcia Valiante to visit fellow environmental law professor Nick Schroeck, but she has to be sure to bring her passport.

Valiante, a Canadian, must cross the border via the blue Ambassador Bridge from Windsor, Ontario, before driving through the pockmarked post-industrial terrain here to the downtown campus of Wayne State University School of Law. It's about 6 miles.

Once there, the diminutive, soft-spoken Valiante and tall, shaven-headed Schroeck can get to work.

Schroeck heads Wayne State's newly minted Transnational Environmental Law Clinic, which gives students, sometimes working in tandem with their Canadian counterparts, the chance to learn about cross-border environmental issues.

Valiante, a professor at the University of Windsor's law school, across the river, is working on setting up a similar program, with the idea that both schools' students will work collaboratively on projects of joint interest.

With the global issues highlighted by climate change on the horizon, plus other cross-border matters involving water and air quality, there's a consensus among law professors that tomorrow's environmental lawyers need to have an international outlook.

The Wayne State clinic focuses on the Great Lakes, which generate legal headaches galore for U.S. and Canadian lawyers. The ongoing effort to prevent Asian carp, a voracious invasive species, from getting a foothold in the lakes is the current headline-grabbing worry.

Other U.S. law schools see obvious benefits to exposing their students to both international and foreign law in the environment and energy context.

Often, it is via links with Canadian law schools.

Just last month, the University of Houston Law Center announced it is launching a new energy law program with the University of Calgary that will allow students to earn both Canadian and American law degrees, spending two years at each school.

The University of Colorado Law School has advanced classes on climate change, international energy law and international environmental law. Separately, the school offers a joint law degree with the University of Alberta's law school.


Elsewhere, Vermont Law School -- known nationally for its environmental law focus -- has an exchange program with McGill University in Montreal.

"The most critical environmental questions of the day are international," Schroeck said on a recent blustery day in his newly outfitted office on the ground floor of Wayne State's law faculty building. "They don't respect the borders."

Valiante, joining the discussion after the brief drive from Windsor, believes that in the current legal environment, it's impossible not to come into contact with international law.

"It's essential to have some understanding of it," she said.

Impending invasion

The long-pending potential invasion of Asian carp into the Great Lakes is a classic cross-border issue.

The fish, some of which grow as big as 110 pounds, have already established themselves in the Mississippi River Basin. Scientists fear it's only a matter of time before they surge into the lakes, which could wreak havoc on the delicate ecosystem.

On the U.S. side of the border, states have already turned to litigation in an effort to prompt immediate action from the Obama administration to prevent the fish from migrating into the Great Lakes.

To date, the U.S. Army Corps of Engineers has only agreed to a five-year study aimed at resolving the problem.

The states' litigation strategy has so far failed. Last year, the Chicago-based 7th U.S. Circuit Court of Appeals declined to impose an injunction against the Army Corps. Separate litigation continues in the Northern District of Illinois.

Throughout the legal battle, one voice has been largely absent.

"Nobody asked the Canadians," Valiante noted drily.

The Canadian government has chosen to treat it as a diplomatic issue and has therefore opted not to get involved in any litigation, she conceded. But environmental groups want to have their say.

That's where the law clinic comes in. Students from both Wayne State and Windsor worked on an amicus brief that Friends of the Earth Canada filed in the unsuccessful effort to seek Supreme Court review of the 7th Circuit ruling (Greenwire, Feb. 27).

The brief cites U.S. and Canadian law in addition to the 1909 Boundary Waters Treaty signed by the United States and Great Britain and the U.S.-Canada Great Lakes Water Quality Agreement.

"Because Lake Michigan is hydrologically connected to Lake Huron, which is partially within the territorial boundaries of Canada, Canadians will likely be harmed by the invasion of Asian carp," the brief notes. It also points out that both countries will face a heavy financial burden if the carp are allowed to gain a foothold in the lakes, citing expensive joint efforts to combat the sea lamprey population.

The dispute, Schroeck said, "fits well into our international mission," because the carp are in U.S. waters but pose a threat to Canadian interests in the Great Lakes.

For Valiante, the joint effort gives her students "familiarity with U.S. procedures" while "adding a Canadian perspective" to the litigation.

The students are equally upbeat.

Kelsi Marie Johnson, a second-year student at Wayne State who wants to be an environmental lawyer, worked on the carp litigation.

Working with Canadian students "provided us with a real perspective on the actual impact of Asian carp in a transboundary context," she said.

Next stop: China

The business of law has gone global in recent decades, so it's no surprise that law schools are looking overseas.

Major law firms have consolidated to such an extent that some now have offices throughout the globe. Thus, lawyers trained to deal with international legal issues can be useful assets.

In environmental and energy law, there is a whole set of uniquely transnational matters, ranging from the global nature of the oil business to the pending threat of climate change. It goes without saying that major energy companies are operating in numerous countries.

Environmental groups are also looking beyond the U.S. border. Earthjustice, a public-interest law firm that specializes in environmental issues, has an international office that works on various transnational disputes, including the ongoing battle over the European Union's imposition of a carbon trading scheme on the airline industry (Greenwire, Dec. 21, 2011).

Having a background in international law "is a beneficial skill, for sure," said Abby Rubinson, one of the attorneys in the office. It will become especially important in relation to climate change, she added, because "globally, you can't address the issue unless you are working with other countries."

Raymond Nimmer, dean of the University of Houston Law Center, sees an opportunity. That's why his school in the heartland of the U.S. energy industry allied with the University of Calgary at the center of Canada's booming energy sector.

"The linkage is natural," Nimmer said. "It's very clearly the case that energy law and environmental law are not domestic questions. They are international in nature."

Canada is the obvious first step for law schools seeking to forge ties overseas. Nimmer, who was speaking by phone from China, made it clear he is looking farther afield, too.

"Law generally has become international in nature," he said. "To train high-level lawyers, you need them to have the opportunity to be exposed to lawyers and law students from other countries."

William Boyd, a law professor at the University of Colorado Law School, hopes at least some of the students taking his climate change law and policy class will seize opportunities that are increasingly available around the world, especially in relation to setting up regulatory frameworks to support carbon-trading schemes.

"We are getting more and more students who are looking beyond the U.S.," he said.

There are barriers, to be sure, such as the difficulty of practicing law in a country where attorneys do not have the necessary credentials. Lack of language skills can also be a problem.

But Boyd stressed that young lawyers who get into the field now will be "early movers," which could lead to rewards in the long term.

"There's lots of lawyering to be done," he said.

More parochial

The transnational clinic in Detroit has an altogether more parochial feel, despite the Canadian link. The focus is predominantly on regional issues that cross national boundaries rather than on global concerns like climate change.

Other schools may have similar overseas ties, but the one between Wayne State and Windsor is "unique in a sense" because of their proximity, Valiante said.

Although most Wayne State students end up practicing law in Michigan, the program will provide them with a "special insight into Canadian law," Schroeck said. That should make it "a selling point for our students," he added.

He thinks the international exposure would be as useful in private practice as it would in working for a government agency.

Students have already secured internships this summer at the Michigan Department of Environmental Quality, U.S. EPA and the Michigan Attorney General's Office.

Matthew Clark, a third-year law student soon to be in need of employment, was bullish about his prospects.

"My experience with the clinic will absolutely help in my postgraduate job search," he said.

Before taking the class, Clark had "little exposure to international law," he admitted. "Now, I have a working knowledge of the field."

In chilly Detroit, after lunch at a cheerful budget Greek restaurant a block from the law school, Schroeck and Valiante part ways. For him, it's a gentle stroll back to his office. For her, just a short drive back over the bridge, passport at the ready.

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