Maryland state Sen. Richard Colburn is fed up with the University of Maryland Environmental Law Clinic's lawsuit against a local chicken farm. But rather than try to shut the clinic down, Mr. Colburn introduced legislation to transfer $500,000 in funding from the University of Maryland to the University of Baltimore for the purpose of establishing an agricultural law clinic "dedicated to assisting farmers in the state with estates and trusts issues, compliance with environmental laws and other matters necessary to preserve family farms."
Although some state money was eventually set aside to assist farmers, Mr. Colburn's measure did not become law this year. If he succeeds in the future, and the UB law school accepts the challenge of creating such a clinic, they will find few role models anywhere in the country. That's because law school clinics seldom provide students with the opportunity to represent natural resource users and developers. To do so would put the law school on the "wrong" side of environmental disputes.
Approximately one in every three American Bar Association-accredited law schools has an environmental law clinic — more than 60 across the nation. Like UM, a significant majority are public law schools relying on a combination of legislative appropriations, tuition and contributions from alumni and private foundations.
The result is that states help foot the bill for lawsuits against private businesses, the federal government and state governments themselves. Little wonder Senator Colburn is upset. While his legislature struggles to create a favorable climate to entice businesses that provide jobs and pay taxes, it helps fund lawsuits against businesses already there.
Meanwhile, pursuant to the Equal Access to Justice Act (EAJA), the federal government provides attorneys' fees to litigants (including law school clinics and their clients) who prevail in lawsuits against the federal government if the government cannot show that its "position was substantially justified." Since 2003, annual payments under EAJA in environmental cases have totaled in excess of $1 billion. Thus, the federal government often pays for its own and its opponents' lawyers.
And just to complete the picture, private defendants in lawsuits brought by environmental groups sometimes end up funding their opponents. For example, a Land Use and Sustainable Development Law Clinic was recently opened at West Virginia University with $1.8 million from a settlement agreement in a lawsuit againstArch Coal Inc. It does not appear from the clinic's website that students will be representing land owners struggling to comply with land use and other environmental laws.
It will not surprise anyone familiar with the politics of the vast majority of America's law faculty that the challenges of private compliance with environmental laws get almost no attention from law school clinics. The website of the Maryland clinic lists as clients Potomac Riverkeeper, Baltimore Harbor Waterkeeper, Waterkeeper Alliance, Defenders of Wildlife, Chesapeake Climate Action Network and others focused on regulating and restricting resource development.
Defenders of the overwhelmingly one-sided representation by environmental law clinics argue that resource users and developers don't need free or low-cost legal assistance. But the reality is that many farmers and other small resource users cannot afford to fight endless regulatory battles, while many environmental groups represented by law school clinics are flush with cash, often thanks to EAJA attorney fee awards and foundation grants. As the Western Resources Legal Center (on whose board I serve) in Portland, Ore., has learned over the past five years, there is high demand for legal assistance among small, resource-dependent businesses.
WRLC is unusual, if not unique. It was created by an alliance of agricultural, timber and mining interests, all of which are heavily regulated in environmentally conscious Oregon. It employs a single lawyer/professor who works with five or six law students each term and has to turn away that many or more. It also turns away many prospective clients. The students, who receive credit at Lewis & Clark Law School, gain the same kind of practical experience they would at one of Lewis & Clark's several environmental law clinics, but they do it working with clients with whom they might share common cause, while representing interests more likely to provide employment after law school.
Senator Colburn is on the right track. Even faced with constituents unhappy over obstructionist lawsuits brought by state-supported law schools, few state legislators have the political will to shutter publicly funded environmental law clinics. But in a time of economic struggle, they might see their way clear to providing law students with experience representing the kinds of clients whose small businesses provide jobs and tax revenues but who are often overwhelmed by environmental regulation.
James L. Huffman is a member of the Hoover Institution's Task Force on Property Rights, Freedom and Prosperity, and dean emeritus at Lewis & Clark Law School.