Governor O'Malley: I was dismayed to learn that you have attacked the efforts of the University of Maryland Environmental Law Clinic to uphold Clean Water Act protections.
As a former student attorney with the Tulane University Environmental Law Clinic - which has similarly been the subject of misguided state government attacks - I know first hand what a valuable service such institutions provide. Where government fails to enforce environmental laws, law clinics often provide an essential public service: filling the gap left by government* to ensure that our shared natural environment receives the protection it deserves. While I also sympathize with the plight of the small, family run business - particularly in these challenging economic times - such sympathy does not include turning a blind eye to flagrant ecological abuse. I will always enthusiastically support small family farms - so long as they comply with longstanding legal norms and conduct their business in an ecologically sound manner.
(*A gap which is understandable in some instances, since government must represent multiple stakeholders with often-conflicting interests.)
Additionally, I am sure you are aware of the Chesapeake Bay dead zone. This is an environmental calamity caused in no small part by excess phosphorous run off from farms in Maryland and other Chesapeake Bay Watershed localities. The original purpose of the Clean Water Act was to prevent and mitigate impacts such as the current, polluted state of the Bay (which polluted state, incidentally, has a tremendous negative impact on the livelihoods of Maryland fishermen). By opposing the work of the Maryland Environmental Law Clinic, you are subverting the Clean Water Act and potentially threatening Maryland's long term ecological well-being.
I encourage you to allow the courts to decide the merits of the Waterkeeper Alliance's claims, without undue interference from your office or the state legislature. If Hudson Farm is found to have been violating the law, then surely they must pay the consequences for their actions. This is an opportunity for you to provide courageous leadership in support of the environment. Thank you for your time and attention.
[End open letter bit.]
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Student-staffed Environmental Law clinics offer would-be lawyers the opportunity to represent real clients in real cases, under the supervision of barred, experienced attorneys. When these clinics are too successful in prosecuting legal claims against government and industry defendants, they risk retaliation from their bested adversaries.
In Louisiana, Senate Bill 549 targeted the Tulane University Law School Environmental Law Clinic*, proposing to block university law clinics at any school receiving state funding from suing a government agency or representing a client suing a private defendant for monetary damages. The Louisiana Chemical Association - a backer of the bill - essentially admitted that the legislative intent was to punish the Tulane Environmental Law Clinic for "two decades of lawsuits filed against chemical companies by clients represented by Tulane law clinic students and attorneys."** Amidst the still-developing Deepwater Horizon catastrophe in May 2010, the Louisiana Senate Commerce Committee deferred consideration of the bill. Presumably, the Tulane Environmental Law Clinic's record of past success against government and industry defendants prompted the thwarted legislative response.
(*Disclosure: I am an alumnus of Tulane University Law School and its Environmental Law Clinic.)
(**Louisiana Chemical Association executive director Dan Borne further charged that the clinic's "mission seems to be to attack business development...in this state." Meanwhile, the bill's sponsor in the Louisiana Senate described Tulane as a "billion-dollar industry that recruit out-of-state kids to come in and sue us.")
Apart from the controversy surrounding Environmental Law clinics, they do provide an invaluable legal service to traditionally underserved communities. At Tulane, the law clinics represent indigent plaintiffs - individuals and associations who would otherwise be hard-pressed to obtain counsel. Ethical standards are rigorous - only meritorious claims are brought. Understandably, government and industry dislike being cast as defendants in litigation. Less understandable are their imprudent efforts to legislatively bar prospective plaintiffs from seeking justice under existing law. As former Tulane Law School Dean Lawrence Ponoroff remarked: "The clinic is neither anti-business nor pro-business...It is in the business of representing clients with legitimate claims under the law."
In Maryland, a Senate bill introduced by Senator Richard Colburn on February 13 would require the environmental law clinic at the University of Maryland Francis King Carey School of Law to "pay an amount not to exceed $500,000 to reimburse the Hudson Farm for legal expenses incurred as a defendant." The proposed bill is a direct response to a lawsuit the Maryland Environmental Law Clinic brought against Perdue Farms Inc. and Hudson Farm, on behalf of the Waterkeeper Alliance. Separately, in November 2011, Maryland Governor Martin O'Malley wrote a letter to Maryland law dean Phoebe Haddon which decried the clinic's involvement as an "ongoing injustice." Apparently Governor O'Malley and Senator Colburn are motivated by a fear that such lawsuits brought by the clinic have the potential to damage the local economy and force small, locally owned enterprises like Hudson Farm into bankruptcy.
Of course lawmakers are well within the scope of their duties to consider the impact of litigation on local businesses that form a part of their constituency. They would be derelict to do anything less. On the other hand, the Waterkeeper Alliance lawsuit alleges serious legal claims against Hudson Farm that cannot be ignored - the complaint avers that the farm is illegally discharging pollution into several waterways. Moreover, the judicial system is the appropriate arbiter on the validity of legal claims; not the legislative or executive branches. Tellingly, the legislative retaliation against the two clinics is wholly grounded in the economic harm clinic lawsuits allegedly cause local business - not the merits of the actual litigation. Legislative and executive interference in the inner working of the legal system is the true injustice here. To wit: the Maryland Environmental Law Clinic case against Hudson Farm was brought under the Clean Water Act - the legislative purpose of which is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Reinforcing the protective purpose of the Clean Water Act, the "citizen suit" provision effectively allows impacted individuals and associations to step in as trustee for clean water where the government fails to uphold its obligation to enforce the law. Environmental Law clinics provide a crucial means for citizens to vindicate the protective principle of the Clean Water Act.
As a former student attorney with the Tulane University Environmental Law Clinic - which has similarly been the subject of misguided state government attacks - I know first hand what a valuable service such institutions provide. Where government fails to enforce environmental laws, law clinics often provide an essential public service: filling the gap left by government* to ensure that our shared natural environment receives the protection it deserves. While I also sympathize with the plight of the small, family run business - particularly in these challenging economic times - such sympathy does not include turning a blind eye to flagrant ecological abuse. I will always enthusiastically support small family farms - so long as they comply with longstanding legal norms and conduct their business in an ecologically sound manner.
(*A gap which is understandable in some instances, since government must represent multiple stakeholders with often-conflicting interests.)
Additionally, I am sure you are aware of the Chesapeake Bay dead zone. This is an environmental calamity caused in no small part by excess phosphorous run off from farms in Maryland and other Chesapeake Bay Watershed localities. The original purpose of the Clean Water Act was to prevent and mitigate impacts such as the current, polluted state of the Bay (which polluted state, incidentally, has a tremendous negative impact on the livelihoods of Maryland fishermen). By opposing the work of the Maryland Environmental Law Clinic, you are subverting the Clean Water Act and potentially threatening Maryland's long term ecological well-being.
I encourage you to allow the courts to decide the merits of the Waterkeeper Alliance's claims, without undue interference from your office or the state legislature. If Hudson Farm is found to have been violating the law, then surely they must pay the consequences for their actions. This is an opportunity for you to provide courageous leadership in support of the environment. Thank you for your time and attention.
[End open letter bit.]
-----------------------------------------------------------------
Student-staffed Environmental Law clinics offer would-be lawyers the opportunity to represent real clients in real cases, under the supervision of barred, experienced attorneys. When these clinics are too successful in prosecuting legal claims against government and industry defendants, they risk retaliation from their bested adversaries.
In Louisiana, Senate Bill 549 targeted the Tulane University Law School Environmental Law Clinic*, proposing to block university law clinics at any school receiving state funding from suing a government agency or representing a client suing a private defendant for monetary damages. The Louisiana Chemical Association - a backer of the bill - essentially admitted that the legislative intent was to punish the Tulane Environmental Law Clinic for "two decades of lawsuits filed against chemical companies by clients represented by Tulane law clinic students and attorneys."** Amidst the still-developing Deepwater Horizon catastrophe in May 2010, the Louisiana Senate Commerce Committee deferred consideration of the bill. Presumably, the Tulane Environmental Law Clinic's record of past success against government and industry defendants prompted the thwarted legislative response.
(*Disclosure: I am an alumnus of Tulane University Law School and its Environmental Law Clinic.)
(**Louisiana Chemical Association executive director Dan Borne further charged that the clinic's "mission seems to be to attack business development...in this state." Meanwhile, the bill's sponsor in the Louisiana Senate described Tulane as a "billion-dollar industry that recruit out-of-state kids to come in and sue us.")
Apart from the controversy surrounding Environmental Law clinics, they do provide an invaluable legal service to traditionally underserved communities. At Tulane, the law clinics represent indigent plaintiffs - individuals and associations who would otherwise be hard-pressed to obtain counsel. Ethical standards are rigorous - only meritorious claims are brought. Understandably, government and industry dislike being cast as defendants in litigation. Less understandable are their imprudent efforts to legislatively bar prospective plaintiffs from seeking justice under existing law. As former Tulane Law School Dean Lawrence Ponoroff remarked: "The clinic is neither anti-business nor pro-business...It is in the business of representing clients with legitimate claims under the law."
In Maryland, a Senate bill introduced by Senator Richard Colburn on February 13 would require the environmental law clinic at the University of Maryland Francis King Carey School of Law to "pay an amount not to exceed $500,000 to reimburse the Hudson Farm for legal expenses incurred as a defendant." The proposed bill is a direct response to a lawsuit the Maryland Environmental Law Clinic brought against Perdue Farms Inc. and Hudson Farm, on behalf of the Waterkeeper Alliance. Separately, in November 2011, Maryland Governor Martin O'Malley wrote a letter to Maryland law dean Phoebe Haddon which decried the clinic's involvement as an "ongoing injustice." Apparently Governor O'Malley and Senator Colburn are motivated by a fear that such lawsuits brought by the clinic have the potential to damage the local economy and force small, locally owned enterprises like Hudson Farm into bankruptcy.
Of course lawmakers are well within the scope of their duties to consider the impact of litigation on local businesses that form a part of their constituency. They would be derelict to do anything less. On the other hand, the Waterkeeper Alliance lawsuit alleges serious legal claims against Hudson Farm that cannot be ignored - the complaint avers that the farm is illegally discharging pollution into several waterways. Moreover, the judicial system is the appropriate arbiter on the validity of legal claims; not the legislative or executive branches. Tellingly, the legislative retaliation against the two clinics is wholly grounded in the economic harm clinic lawsuits allegedly cause local business - not the merits of the actual litigation. Legislative and executive interference in the inner working of the legal system is the true injustice here. To wit: the Maryland Environmental Law Clinic case against Hudson Farm was brought under the Clean Water Act - the legislative purpose of which is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Reinforcing the protective purpose of the Clean Water Act, the "citizen suit" provision effectively allows impacted individuals and associations to step in as trustee for clean water where the government fails to uphold its obligation to enforce the law. Environmental Law clinics provide a crucial means for citizens to vindicate the protective principle of the Clean Water Act.
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