By Walter Olson
5:21 PM EST, December 27, 2012
In a widely watched case on the Eastern Shore, federal judge William Nickerson ruled Thursday that Alan and Kristin Hudson's Berlin farm was not in violation of the federal Clean Water Act. The plaintiffs, the Waterkeeper Alliance led by controversial environmentalist Robert F. Kennedy Jr., had hoped to establish that big food processors, in this case Perdue Inc., could be held liable for the alleged pollution sins of "contract growers" like the Hudson family. But the Waterkeeper group fell flat on its face — while rousing ill will among some former allies in the process.
Environmental plaintiffs like to present themselves as David going after Goliath, but the Hudson lawsuit came off rather differently. It pitted an out-of-state activist group, flush with foundation grants and the largesse of Hollywood fundraisers, against a family farm ill-placed to withstand prolonged litigation. In practice, the group expected that rather than let one of its contract farmers be rolled over by brute force of this kind, Perdue would step up and offer to cover the Hudsons' legal fees — which it did.
From early on, the case had embarrassing weaknesses. To begin with, its factual basis was shaky: a suspected pile of chicken manure spotted on the Hudsons' property, and offered as a central allegation of poor waste management, turned out not to be chicken manure at all.
It soon developed that Waterkeeper's local representative had gone looking for a test case but didn't back off even after the case turned out weaker than it may at first have looked.
More broadly, the whole theory of vicarious liability on which the test case was built — that because the Perdue company had contracts with local poultry farms, it could therefore be held legally responsible for their alleged environmental sins — was at drastic odds with existing precedent and, if accepted, would require systemic changes in environmental law that neither the state legislature in Annapolis nor federal authorities had shown any inclination to pursue.
What provoked a widespread furor was not just that an environmental plaintiff was pursuing an adventurous long-shot case. It was that the citizens of the state of Maryland — including taxpaying families like the Hudsons — were helping foot the bill for it. The University of Maryland's environmental law clinic had agreed to represent the well-heeled Kennedy group in suing Alan and Kristin Hudson. And that, in turn, touched off a controversy, still ongoing, about whether or not state-run universities like Maryland's should properly insert themselves into controversial long-shot litigation aimed at the interests of some of the taxpayers who have to pay for it.
The outcry against the clinic's involvement was not limited to farm groups and Republican lawmakers in Annapolis. Democratic Maryland Gov. Martin O'Malley, in a widely noted letter to a university official, criticized the onslaught against the Hudsons as an "injustice." Even so, much of the academic and law establishments closed ranks in favor of the law school. In their view, sending out publicly backed young lawyers to pummel the Hudsons is not just ideological self-indulgence in educational disguise but somehow part of the majestic charter of academic freedom, even if undiscovered as such until just recently.
Judge Nickerson, in a series of rulings leading up to Thursday's 50-page opinion, has given fuel to the critics. Not only did he decline to overturn existing precedent so as to make processors responsible for growers, but he specifically found fault with the plaintiffs for making the Hudsons into a test case even as the weaknesses of the initial allegations became clear. Don't expect him to order the plaintiffs to cover the family's legal fees, however; under the provisions of federal laws like the Clean Water Act, it's next to impossible for defendants like the Hudsons to collect fees for defending against bogus suits, even though they would have been at legal risk of enormous fees in the other direction had they lost. (It's called "one-way" fee-shifting.)
In a better world, Thursday's ruling would lead to a bit of soul-searching in Baltimore and elsewhere about whether it's a good thing to let state-affiliated law clinics turn into ideological sandboxes. At the University of Maryland, they say they're reviewing the judge's order in hopes of finding some grounds for appeal.
Walter Olson, a senior fellow at the Cato Institute, wrote about law school clinics in the book "Schools for Misrule."
Copyright © 2014, The Baltimore Sun