Can preemption protect public participation?

• Author: Babich, Adam
• Position: Government Speech: The Government's Ability to Compel and Restrict Speech

A fundamental goal of the U.S. legal system is for ordinary people to have the practical ability to vindicate their rights in court. The fight to access the judicial system is "one of the highest and most essential privileges of citizenship." (1) Further, because "accurate and just results are most likely to be obtained through the equal contest of opposed interests," broad access to the courts improves the quality of justice. (2) Institutions that offer free legal services therefore perform a public service by expanding access to the legal system--even if their clients' cases are sometimes "in disfavor with the general public" or with politicians' valued constituents. (3)

Expanded access to the legal system means that government agencies and private companies must pay attention to people they could otherwise ignore. (4) It results in enforcement of laws that otherwise could be violated with impunity. This is a plus in terms of good government and the rule of law, but it can annoy powerful people who are accustomed to getting their own way.

One reaction has been for state lawmakers to propose legislation-referred to here as "de-lawyering" laws--to limit access to legal representation. (5) The idea is to deny lawyers to people with points of view that the legislators' favored constituents would rather not debate on the merits. De-lawyering proposals tend to target providers of free legal services, including universities with law school clinics. Lately, these proposals have taken the form of a threat to universities: either stop helping citizens express their points of view in court or face financial retaliation. (6)

This article argues that--in the context of environmental law--de-lawyering legislation would run afoul of the U.S. Constitution's Supremacy Clause, which preempts state laws that conflict with federal policy. (7) This article focuses on the primary purpose and likely impact of such de-lawyering bills: to hinder public participation in decisions about implementation and enforcement of environmental laws. That purpose is squarely at odds with an important goal of federal environmental statutes: to enhance ordinary people's ability to make their voices heard about those very issues. (8) Because de-lawyering would conflict with congressional mandates to encourage public participation, such laws would be vulnerable to challenge under the doctrine of conflict preemption. (9)

Part I of the article discusses the role of public participation in the regulatory process. Part II provides a history of Louisiana Senate Bill 549--a failed 2010 attempt to de-lawyer the Tulane Environmental Law Clinic's (TELC's) clients--and shows that such an attempt to stifle legal advocacy is a disreputable tactic. Part III analyzes Senate Bill 549 in light of the federal preemption doctrine, demonstrating that the bill conflicts with federal policy and that it cannot be justified in terms of legitimate state objectives. Part IV shows that bringing a preemption claim under 42 U.S.C. [section] 1983 may enable a prevailing plaintiff to recover attorney fees under 42 U.S.C. [section] 1988. (10) The article concludes in Part V that the preemption doctrine is a useful tool in the effort to stop de-lawyering of an environmental law clinic's clients.

1. PUBLIC PARTICIPATION AND THE REGULATORY PROCESS

   When Congress mandated opportunities for the public to participate in environmental decisionmaking, it opened a wide-ranging dialogue. Some of the issues involved are relatively cut and dried. For example: in a nation governed by the rule of law, industrial facilities should comply with their permits. (11) When people violate the law and contaminate public resources, most people would agree that the violators should be held accountable. (12) To supplement government enforcement, Congress empowered "any person" to bring enforcement action under many modern antipollution laws, effectively deputizing members of the public to act as "private attorneys general" to help uphold the rule of law. (13) When this type of public participation helps identify and prosecute lawbreakers, what complaint can there be? (14)

   Congress also gave ordinary citizens the right to participate in public dialogue about more complex, inherently debatable issues. Administrative proceedings about whether the government should issue particular environmental permits, for instance, can turn on difficult questions for which there are no clear, right or wrong answers. Here are some examples of issues with which Louisiana residents have grappled:

   * Is a proposed industrial facility the right fit for the neighborhood in which its proponents seek to build? (15)

   * Must an historic neighborhood be sacrificed to make way for the promise of a new medical complex? (16)

   * Will a new levee system improve public safety in southern Louisiana or destroy the very wetlands we count on to cut down storm surges? (17)

   * With the southern part of the state at risk from rising sea levels, should Louisianans expand use of greenhouse gas emitting fuels, such as coal and petroleum coke? (18)

   * Should the government build a new highway through a downtown park in historic Lafayette? (19)

   * Are the environmental burdens of industrialization shared fairly among communities of different racial composition? (20)

   These are not simple questions and it would be unrealistic to expect all well-meaning people to agree about them.

   Why should members of the public have a voice on these types of issues at all? The answer lies partly in the U.S. administrative law system's goal to temper the power of unelected bureaucrats in what is supposed to be a government "by the people." (21) The U.S. Supreme Court has recognized that a gap in accountability can arise from government by administrative agency:

   Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people. (22) The ability of ordinary people to comment on and challenge agency decisions helps "reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies." (23)

   Public participation also helps to assure that the "agency will have before it the facts and information relevant to a particular administrative problem." (24) For example, one factor that may have contributed to the 2010 BP oil disaster in the Gulf of Mexico was the lack of public participation in approval of Gulf drilling plans. Permit appeals "are sometimes the only way to ferret out and fix problems in the government's voluminous environmental plans." (25) Thus, environmental groups' failure to challenge plans for Gulf drilling meant that the federal "Minerals Management Service had little to fear if they rubber-stamped oil companies' plans, even if they included claims that now seem ridiculous." (26)

   Litigation in this context is not necessarily a struggle between good and evil. Nor does it always represent a failure of civilized discourse. Instead, it is part of an important dialogue--a process of involving affected people in decisions that will shape their futures. (27) It is the legal profession's job to facilitate that dialogue. (28) And law school clinics can play an important role in helping the profession meet this responsibility. (29)

   Public participation does not come without a price tag. Especially in the context of highly regulated industries, however, the U.S. Supreme Court has recognized that "the expense and annoyance" of legal processes "is part of the social burden of living under government." (30) Courts take such burdens seriously, and one of the ongoing struggles of administrative law is to balance efficiency, fairness, and full consideration of relevant facts. (31) Reviewing courts strive to ensure that judicial review does not become "a forum to engage in unjustified obstructionism." (32) Yet courts must also ensure that agency decisions are "based on a consideration of the relevant factors" and subject to "searching and careful" inquiry--even where the "ultimate standard of [judicial] review is a narrow one." (33) Doubtless, the real-world balance that emerges is less than perfect. (34) But government rarely produces perfect solutions. (35)

2. THE 2010 ATTEMPT TO DE-LAWYER TELC's CLIENTS

   1. The Lead-Up

      In November 2009, the Louisiana Chemical Association (LCA) heralded an attack on Tulane University aimed at de-lawyering TELC's clients. LCA President Dan Borne borrowed rhetoric from the world of organized crime to announce that LCA's goal was to "kneecap" Tulane University in retaliation for lawsuits brought by TELC's clients. (36) The result was Louisiana Senate Bill 549. (37)

      Louisiana Senator Robert Adley--the President of Pelican Gas Management, Inc., and past-president of ABCO Petroleum Corporation (38)--introduced the bill at LCA's behest on March 29, 2010. (39) Senate Bill 549 was not the first attempt to de-lawyer TELC's clients or those of other law school clinics. (40) It was, however, the first legislative attempt to force Tulane University to shut down its environmental law clinic.

      LCA made no attempt to hide the source of its frustration: By expanding access to the legal system, TELC helps people from outside the chemical industry participate in decisions about implementation of environmental laws that can affect chemical companies' bottom lines. Since at least 2004, LCA has published an "Economic Development Plan" that condemns TELC. (41) By its own terms, this plan has a narrow goal--to promote "chemical industry retention and growth"--not to advance the State of Louisiana's overall best interests. (42) Since at least 2004, LCA's plan has been to stop "the effect that lawsuits which are brought by clients represented by...