Chapter 12 Special Consideration for Public Interest Litigation

• Jurisdiction: United States

Chapter 12 Special Consideration for Public Interest Litigation
Samantha Ruscavage-Barz WildEarth Guardians Santa Fe, NM

SAMANTHA RUSCAVAGE-BARZ is the Legal Director for WildEarth Guardians in Santa Fe, New Mexico, and has been with the organization for over a decade. Her practice focuses on Rio Grande River advocacy, preventing species extinction using the Endangered Species Act, and protecting community health and public lands from rampant fossil fuel development. Samantha is a graduate of the University of New Mexico School of Law where she is also an Adjunct Professor teaching Environmental Litigation Drafting and coaching the Environmental Law Moot Court Team. Prior to becoming an attorney, Samantha spent 17 years as an archaeologist, and has her Ph.D. in Archaeology from Washington State University.

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The description of this session characterized a public interest case as serving the twin purposes of redressing particular injuries and driving broader social change. This characterization is accurate. As a result, these types of lawsuits have implications well beyond the specific claims and defenses raised, and the judicially-determined outcome.

I. Development of Public Interest Litigation

While environmental public interest litigation may bring some unique challenges for a defendant's counsel, litigating for the public interest is not unique to environmental cases. Rather, environmental litigation in the public interest is part of, and consistent with, broader public interest practice that includes advocating for social change related to civil rights, access to affordable housing, labor practices, etc. Public interest litigation "provide[s] legal representation to interests that historically have been unrepresented or underrepresented in the legal process."¹ The foundations for public interest litigation began in the early twentieth century with cases brought by the American Civil Liberties Union (ACLU) and the Legal Defense Fund of the National Association for the Advancement of Colored People (NAACP) that drove systemic change in the areas of racial segregation and government encroachment on civil liberties.²

The public interest legal organizations that arose from these antecedents in the late 1960s and early 1970s continued "to pursue social change for disadvantaged groups," primarily by providing direct legal services for clients from these groups.³ The 1960s also witnessed the rise of public interest litigation around issues, rather than protection of individual rights, starting with Ralph Nader's successful litigation focusing on consumer protection and corporate reform.⁴ During this decade, public interest environmental law firms also were established and began pursuing reform of governmental agencies charged with environmental and natural resource protection.⁵

With respect to environmental public interest litigation, key statutes such as the Clean Air Act, Clean Water Act, and the National Environmental Policy Act drove its development beginning in the early 1970s.⁶ Congress enacted the Clean Air Act to promote public health and welfare by protecting and enhancing the nation's air quality.⁷ In doing so, Congress recognized

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that clean air was in the public interest, and superior to the interests of polluters.⁸ When it enacted NEPA, Congress recognized the federal government's continuing responsibility to prevent environmental degradation, risks to health and safety, and other negative consequences of government actions.⁹ NEPA promotes informed government decisions by compelling federal agencies to take an honest look at the environmental consequences of their decisions, and to provide meaningful opportunities for public involvement in all stages of agency decisions.¹⁰ Public interest litigation under these statutes focused on the adequacy of the administrative process for implementing these statutes, along with gauging the limits of administrative agency authority.¹¹

The later addition of citizen suit provisions in statutes such as the Clean Air Act empowered non-governmental entities, including individuals and organizations, to enforce those laws when the government was unwilling or unable to pursue enforcement actions.¹² In doing so, Congress recognized the important role that citizens play in "detecting violations and bringing them to the attention of the enforcement agencies and courts alike."¹³ Congress further empowered non-governmental actors to enforce environmental statutes by providing courts with the authority to award attorneys' fees and costs to any party in a citizen suit provided the party meets the requirements of the specific fee provision.¹⁴ Given that most public interest litigators and legal organizations do not bill clients for attorney time spent on their cases, the availability of attorneys' fees for the prevailing plaintiff's counsel allowed those attorneys to be reimbursed for time spent on public interest cases.¹⁵ The addition of citizen suit and attorneys' fees provisions in environmental statutes shows that Congress considered non-governmental actors as key to enforcing laws protecting the environment, public health, and natural resources.

II. Litigating in the "Public Interest"

Public interest litigation's primary focus is on "social justice or social change through law reform," rather than being driven by economic considerations around law firm profits.¹⁶ Another distinction between public interest and traditional lawyering is in the impetus for bringing a particular case. Traditional lawyering can also be described as "client lawyering,"

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where the client, rather than the lawyer, drives the particular application of the lawyer's legal skills, based on the interest that the client is seeking to protect.¹⁷ The traditional lawyer typically works within the existing legal infrastructure to achieve success for a particular client.¹⁸ Working within the existing legal system to achieve a favorable result for a client implies some degree of satisfaction with the status quo of the state of the law related to representation of the client.

Public interest lawyering is usually, in part, cause- or issue-driven, rather than strictly client-driven.¹⁹ The public interest lawyer is not satisfied working within the existing legal infrastructure to drive social change, but instead seeks to change or transform the legal status quo to create the foundations for broader social change beyond the benefits felt by an individual plaintiff.²⁰ Although public interest lawyers still bring cases on behalf of clients (and, indeed, must identify concrete and particular injury to an individual to meet Article III standing requirements), included in the calculus of whether to bring a particular case is the extent to which the case could be an effective vehicle for advancing a broader social change goal.²¹ The public interest lawyer and public interest client(s)²² have a "shared commitment to their cause" resulting in a lawyer-client loyalty that may be stronger than the loyalty that exists in a traditional lawyer-client relationship.²³

Because public interest litigation is often driven towards a broader, transformational goal, this type of goal cannot be realized in a single lawsuit. Ultimate success is reached through a series of "incremental and iterative" steps involving different types of non-frivolous claims and arguments attempted and reworked over multiple and sequential cases.²⁴ In this sense, the outcome of any individual case brought in furtherance of advancing social change "is but a small step in a larger, multisequence process in which litigation can be a powerful tool to attract public attention, to communicate a legal and political agenda, and to place pressure on various levels of government and society."²⁵

A well-known example of this iterative approach leading to broad social change is Brown v. Board of Education, where the Supreme Court unanimously ruled that school segregation violated the Constitution's Equal Protection Clause.²⁶ Although this case is considered a game-

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changer in upending the status quo that had supported racial segregation, Brown was preceded by...