Illegal Permit? Who Are You Going to Call? Your Local Environmental Law Clinic!

• Date: 01 November 2009

11-2009 NEWS & ANALYSIS 39 ELR 11051

C O M M E N T S

Illegal Permit? Who Are You

Going to Call? Your Local

Environmental Law Clinic!

by Adam Babich

Adam Babich directs the Tulane Environmental Law Clinic and is a professor of law at Tulane Law

School. anks to Blake S. Mogabgab and Matthew G. Altaras for their research assistance.

Law school operated environmental law clinics—in addi-

tion to training students—can serve a vital function by

expanding the public’s participation in environmental

decisionmaking beyond the national precedent-setting cases

typically litigated by public-interest law rms. Such clinics

can help individuals and grass roots organizations partici-

pate in the regulatory process on a persistent, decision-by-

decision basis. Considered individually, most cases that such

clinics ha ndle may be of local, rather than national, impor-

tance. Cumulatively, however, with law school clinics scat-

tered across the country, the eect may be analogous to water

dripping on a stone, slowly wearing down barriers to a more

sustainable relationship between industrial facilities and sur-

rounding communities and eco-systems.

A centra l element of modern environmental law is pub-

lic participation.1 Empowered by citizen enforcement and

judicial review provisions, citizen organizations have helped

spark,2 shape,3 and police4 implementation of environmental

1. See, e.g., Federal Water Pollution Control Act (FWPCA) §101(e), 33 U.S.C.

§1251(e) (“Public participation in the development, revision, and enforce-

ment of any regulation, standard, euent limitation, plan, or program estab-

lished by the Administrator or any State under this chapter shall be provided

for, encouraged, and assisted by the Administrator and the States.”); Resource

Conservation and Recovery Act (RCRA) §7004(b)(1), 42 U.S.C. §6974(b)(1)

(same); Clean Air Act (CAA) §502(b)(6), 42 U.S.C. §7661a(b)(6), requiring

that state permit programs provide for

public notice, including oering an opportunity for public comment

and a hearing, and for expeditious review of permit actions ... includ-

ing an opportunity for judicial review in State court of the nal permit

action by the applicant, any person who par ticipated in the public

comment process, and any other person who could obtain judicial

review of that action under applicable law.

Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) §117, 42 U.S.C. §9617 (providing for public participation in gov-

ernment decisions about cleanup of hazardous substances).

2. See, e.g., Illinois v. Costle, 9 ELR 20243 (D.D.C. Jan. 3, 1979) (requiring EPA

to comply with Congress’ command to create a regulatory program for hazard-

ous waste under RCRA).

3. See, e.g., Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 2 ELR 20262 (D.D.C.

1972), a’d, 2 ELR 20656, No. 1031-72 (D.C. Cir. 1972), a’d sub nom. Fri

v. Sierra Club, 412 U.S. 541, 3 ELR 20684 (1973) (ordering creation of the

Clean Air Act’s prevention of signicant deterioration program).

4. See, e.g., Clean Air Council v. Sunoco, Inc., No. 02-1553, 2003 WL 1785879

at *8 (D. Del. Apr. 2, 2003) (“[T]he court recognizes that citizen suits are fun-

statutes.5 e law’s emphasis on public participation can give

members of the public a voice in the decisions of unelected

bureaucracies that can otherwise tend to stall or drift from

congressionally authorized purposes.6

One way to think about public participation eorts is to

divide them into two overlapping categories: e rst and

most famous is ta rgeted, high-impact action, designed to

achieve the maximum environmental progress possible given

available legal resources. National environmental nonprots

often focus their eorts on this rst category.7 e second

category comprises more diuse, day-to-day public involve-

ment in the myriad decisions that aect the quality of the

environment surrounding ordinary communities.8

damental to the eective enforcement of environmental legislation.”); Oliver

A. Houck, e Secret Opinions of the United States Supreme Court on Leading

Cases in Environmental Law, Never Before Published!, 65 U. C. L. R. 459,

499 (1994) (“the Endangered Species Act .. . has no mechanism [to force]

federal agency compliance except citizen suits”).

5. See generally Adam Babich, Citizen Suits: e Teeth in Public Participation, 25

ELR 10141, 10145 (Mar. 1995).

6. EPA has recognized that a realistic opportunity to challenge government ac-

tion in court—in addition to opportunities to comment or attend hearings—is

necessary if citizens are to have a real voice in agency decisions:

When citizens are denied the opportunity to challenge executive deci-

sions in court, their ability to inuence permitting decisions through

other required elements of public participation, such as through public

comments and public hearings on proposed permits, may be seriously

compromised. If citizens perceive that a state is not addressing their

concerns about [] permits because the citizens have no recourse to

an impartial judiciary, that perception also has a chilling eect on all

the remaining forms of public participation in the permitting process.

Virginia v. Browner, 80 F.3d 869, 880, 26 ELR 21245 (4th Cir. 1996) (quot-

ing an EPA notice of proposed rulemaking published at 60 Fed. Reg. 14588,

14589 (Mar. 17, 1995)).

7. See Barton H. ompson Jr., e Continuing Innovation of Citizen Enforce-

ment, U. I. L. R. 185, 212 (2000) (noting the historic emphasis of na-

tional nonprots “on making citizen suits workable enforcement tools, rming

up the political power of the environmental movement, and inuencing the

interpretation of specic statutes”).

8. See, e.g., Eileen Gauna, e Environmental Justice Mist: Public Participation

and the Paradigm Paradox, 17 S. E. L.J. 3, 5 (1998) (arguing that ad-

ministrative processes often “fail to eectively incorporate an important form

of public participation in decision-making—the participation by communities

bearing the greatest environmental risks”); cf. Daniel C. Esty, Unpacking the

“Trade and Environment” Conict, 25 L  P’ I’ B. 1259, 1282

Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.