Maryland environmental law clinic focuses on enforcement

Thelma Boyd and her Cheverly-area neighbors were at their wits' end when they connected with the University of Maryland's environmental law clinic.

She and other residents of distressed, predominantly black neighborhoods on the outskirts of Washington had tried in vain to get local officials to keep a concrete plant from being built in their midst. Fearing a potential health threat, they felt their only recourse was to go to court but couldn't find a lawyer to take their case.


"That's not the kind of case people will take," said Boyd, 87, who's lived there 56 years. "They want money. We have no money."

The Prince George's County fight is one of a dozen environmental disputes being handled this year by the Baltimore clinic, which has become embroiled in political controversy over another case, a pollution lawsuit against an Eastern Shore chicken farm and the Perdue Farms poultry company. Gov. Martin O'Malley, a Maryland law graduate himself, recently joined the chorus of criticism from farm groups and Eastern Shore lawmakers, accusing the clinic of pursuing a "questionable" case that threatens to drive the fourth-generation farm out of business. Some lawmakers say they plan to try to cut the clinic's funding or limit who it can sue.


This isn't the first time one of the university's 23 law clinics has found itself in political hot water. In the 1980s, Gov. William Donald Schaefer briefly barred them from using state funds to sue state agencies. Last year, Annapolis lawmakers upset over the Shore lawsuit threatened to withhold funds from the University of Maryland, Baltimore until the law school turned over a list of the environmental clinic's clients and expenditures.

Founded 24 years ago to represent citizens concerned about the Chesapeake Bay, the environmental law clinic provides real-world training to students in the complex and contentious world of environmental law and regulation. It is widely regarded as one of the top clinics of its type in the country. As a graduation requirement, every full-time student of the law school must "provide legal services to people who are poor or otherwise lack access to justice."

"This clinic is an enforcement and advocacy clinic," said its director, Jane F. Barrett, a veteran lawyer who before joining the law faculty prosecuted environmental crimes in the U.S. attorney's office in Baltimore and then defended accused polluters in a Washington-based private practice. "We represent clients who are interested in enforcing environmental laws."

Under the guidance of professors and staff lawyers, the clinic's 10 students file comments on pollution rules and challenge permits for sewage plants, trash incinerators and factories. They write legal briefs, file lawsuits and even argue cases before judges, up to and including Maryland's highest court.

In brief group and individual interviews, the students all said the clinic work was challenging but invaluable in gaining practical experience in applying the law. The mission also appealed to many.

"Because I care about the environment, I wanted to be a better steward," said Patrick McDonough, a third-year student from San Diego. "I really wanted to come here to learn to be an attorney, learn how to use those skills and then dedicate my career toward protecting the environment."

Many hoped to find work with government or nonprofit groups after graduation, but others indicated they would be willing to work for corporations or in law firms representing businesses — "whoever will hire me," one said.

Their clients include environmental groups, community associations and individuals. Though most clients are not indigent, they are not wealthy, either. If people seeking the clinic's help have the money to hire a lawyer, Barrett said, it won't represent them. She says she also turns away inquiries to keep the clinic's workload manageable.


Controversy has centered on one particular client, the Waterkeeper Alliance, a New York-based umbrella organization for nearly 200 water-quality watchdogs on six continents. The alliance is the plaintiff in the lawsuit against the Hudson farm in Berlin and against Perdue, and critics have complained about the clinic working for a "deep-pocket" out-of-state group headed by Robert F. Kennedy Jr.

"Quite frankly, I'm not sure why we're providing taxpayer-provided service to an outfit that's got money in the bank," said Del. Michael A. McDermott, a Republican who represents Wicomico and Worcester counties. "Do we want taxpayer dollars being used against other Marylanders?"

The clinic's defenders say the criticism is off-base. The alliance has 13 chapters in Maryland, keeping tabs on rivers and waters of the Chesapeake Bay. And while all operate under the waterkeeper name, they are financially independent, having to raise their own funds for staff and expenses.

The clinic's 2010 budget, the most recent year for which information was available, was $160,000, with 12 percent covered by state funds. The remainder comes from foundation grants and donations. And while the students' and staff time is partially state supported, Barrett points out that no public money goes directly to litigation — filing fees, copying, expert testimony and other expenses must be paid by the clients, or covered by donations. The Cheverly area residents, for instance, took up a collection to cover the filing fees for their lawsuit.

Some critics, such as Del. Patrick L. McDonough, a Republican representing parts of Baltimore and Harford counties, have suggested that public university law clinics should not be allowed to sue private individuals or businesses. Others contend the clinic ought to be representing the Eastern Shore farm against the Waterkeepers, or limit its practice to indigent clients.

Law clinic directors counter that to do that would severely hamper the institutions' role in providing legal help to under-represented people and communities.


There are plenty of law school clinics around the country that represent businesses, but generally small businesses or startups that cannot afford a lawyer, said Ian Weinstein, president of the Clinical Legal Education Association and associate dean of the Fordham University law school in New York.

The University of Baltimore has a community development law clinic, for instance, that works with small businesses, said Leigh Goodmark, director of the school's nine clinics. But the clinic limits its work on behalf of businesses to drawing up incorporation papers and the like rather than representing them in lawsuits, she said.

If the state were to bar university law clinics from suing Marylanders, Goodmark said, it would curtail the work of UB's family law clinic, which includes filing for restraining orders in domestic violence cases.

Others, such as McDermott, say environmental enforcement should be left to the Maryland Department of the Environment, which found no conclusive evidence that the Shore farm was the source of high bacteria counts detected in a drainage ditch running by its chicken houses.

But Potomac Riverkeeper Ed Merrifield points out that Congress authorized citizens to go to court to enforce federal environmental laws when the government was unable or unwilling to do so.

The environmental law clinic is representing Merrifield and others in a lawsuit accusing the power company GenOn of polluting a Charles County river with coal fly ash it is dumping in a landfill there. State courts have denied their standing to sue, which the clinic is appealing to the Maryland Court of Appeals. The state Department of the Environment also has taken legal action against the landfill, but only after the citizens groups threatened to sue, Merrifield noted.


While he has been able to get free legal help at times on Potomac River matters from big Washington law firms, all too often they can't pitch in, Merrifield said, because it would conflict with the interests of their paying clients. University law clinics aren't as ethically handcuffed, he said, and "some of the best work we get is from our university law students."

Boyd, the Cheverly resident, concurs.

"It takes a certain kind of attitude and dedication, commitment and interest, concern in the community — I mean in the larger community — to do this work," she said.

A Prince George's County Circuit Court ruled against her group last year, but the environmental law clinic is appealing on its behalf to the Maryland Court of Special Appeals. Boyd says she has no regrets.

"This is not a new battle," she said, recalling decades of clashes with local authorities over getting stuck with dirty, unwanted facilities that other, more affluent communities could fend off. "This is the first time we've ever had the opportunity to have representation."