Old Judges in New Times


A fresh rush of publicity surrounds federal judges as theyadjudicate environmental lawsuits from the Everglades to Prince William Sound. Some of the most thorny, technologically complex cases ever thrown into the courts are being decided in the Exxon Valdez and Boston Harbor suits and in the legal dispute that is tearing the Pacific Northwest apart -- Northern Spotted Owl vs. Manuel Lujan.

But for sheer numbers in the new wave of environmental cases, look to the states. State jurists are also being swamped with new and complex issues. Their problem is so severe that judges from the six New England states met for the first-ever environmental-law training session at Westford, Massachusetts, in April.

Instead of probate and property claims, their honors suddenly found themselves wrestling with basic hydrology and geology, site-evaluation issues, wetlands and site remediation -- subjects rarely, if ever, taught when today's judges were in law school.

So far just the leading edge of such cases has hit the courts. xTC Many more are likely soon, as the nation's legislatures enact all manner of new environmental laws.

"All of this [legislation] will end up in the courts," notes Andrew Savitz, former general counsel to Massachusetts' Office of Environmental Affairs and an organizer of the jurists' training session in Westford. "New laws mean new remedies, new lawsuits -- a tidal wave before the courts. And judges have to deal with it."

The subjects jurists will be grappling with, U.S. Appeals Judge James Oakes has suggested, have expanded to "global warming, the ozone layer, the greenhouse effect, acid rain, and hazardous, toxic and non-biodegradable wastes on land and in the sea."

One shudders to think how those appointees elevated to some high-court bench solely for past political favors will deal with this barrage of complex statutes. Or how circuit-court judges, assigned cases purely at random, will get up to speed on delicate ecology-based law.

Is there a realistic chance thousands of judges across 50 states will rise to the level of knowledge and sophistication that tough environmental cases pose? It's easy to be pessimistic.

Fortunately, many highly competent people are appointed to judgeships. And given the extraordinary stakes for society that environmental cases present, shouldn't we anticipate that the judiciary will put in extraordinary effort? That means many judges will have to reorient their thinking, and learn how other jurists are managing environmental cases. Every judge at the New England conference said afterward that he or she would recommend the same training opportunity to their colleagues.

Interest for similar training in other regions is now pouring in, according to the conference organizers -- the Flaschner Judicial Institute of Boston and the Washington, D.C.-based Environmental Law Institute. Upcoming courses are likely in the Midwest, California and the South. The American Bar Association is interested in picking up on the idea, too.

How do you train judges, with busy schedules who've grown accustomed to laying down the law for others?

Lectures may not be the best method, suggests Mel L. Greenberg of the Massachusetts Appeals Court, one of 48 judges attending the conference. A better way, he says, is putting on mock trials and experimenting with new hands-on applications of complicated principles. One of the big successes of the New England conference was a case based on a hypothetical environmental crime -- desecration through toxic discharges of a valuable wetland.

Conference sponsors acted out roles -- as landowner, plaintiff, attorneys for all the sides. And then the judges assembled, in state groups, to see how they'd decide.

Judges tended to reflect their states' basic attitudes on the environment -- tough in some cases, permissive in others. Vermont has long been New England's lead environmental state. Massachusetts and Rhode Island have been tough enforcers, too. New Hampshire, at the other extreme, has demonstrated the least passion for enforcement, with the biggest "tilt" to landowner rights.

Whatever their ideological predilections, state courts may have to reorganize, fast, to handle the torrent of environmental laws. Some states rotate their judges from court to court, potentially causing havoc with long and complex environmental cases. "The judge moves; the case stays," Mr. Savitz notes. "Some of the bigger environmental cases get handed off three or four times."

States may have to experiment with resolving cases by mediation or arbitration. Or develop selective groups of judges responsible for environmental cases. Chicago has one judge who handles the asbestos cases. Vermont recently created the nation's first environmental court.

One thing is certain: Whether the judges are prepared or not, environmental lawyers will be waiting to pounce. Over 20,000 are now reportedly at work, responding to what they see as swelling market demand. Their business is lawsuits. The judges better get ready to hear them.

Neal R. Peirce writes a column on state and urban affairs.

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