Protecting Public Participation
| Author | Adam Babich/Brandon David Sousa |
| Position | Professor of law at Tulane University and directs the Tulane Environmental Law Clinic/Student attorney in the clinic and will receive his J.D. from Tulane Law School this year |
| Pages | 22-27 |
Page 22 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2011
Protecting Public Participation
e Louisiana Chemical Association is trying to “de-lawyer” the clients of a clinic that
provides pro bono representation. But trying to hinder access to the courts to prevent
enforcement of laws on the books is not a responsible reaction to policy disagreements
Journal: “If you’re going to take money from the
taxpayers and the government, you ought not be
able to sue the taxpayers and the government.”
Louisiana’s experience with de-lawyering began
in 2009 when Louisiana Chemical Association
President Dan Borne announced that the associa-
tion would retaliate for lawsuits brought by the Tu-
lane Environmental Law Clinic’s clients. Borrowing
rhetoric from the world of organized crime, Borne
threatened to “knee cap” Tulane University. Next
— at the LCA’s behest — Adley introduced Sen-
ate Bill 549 in March 2010. at bill proposed to
require “forfeiture of all state funding” by any uni-
versity whose law school clinic sues a government
agency, sues a business for damages, or brings a
claim under Louisiana’s constitution in a civil case.
Testifying in support of the bill, Borne explained:
“Nothing in this bill would prohibit the law clinic
from doing exactly what it’s doing today . . . but
the university would then have to fund all of those
services that it gets money from the state for now.”
ose services include medical care for the indi-
gent, research into prevention of cancer and sickle
cell anemia, and other projects that benefit the en-
tire state. e Tulane Environmental Law Clinic is
not state funded.
“Adley and the LCA were, in effect, thumbing
their noses at the law, judicial process, and regula-
tion,” the New Orleans Citybusiness newspaper edi-
torialized, noting that these were “all areas within
the purview of the Legislature to change.” In other
words, Adley and Borne did not try to relax the laws
The preemption doctrine is famous among
environmental professionals primarily for
its powerful, if inconsistent, role in shield-
ing businesses from state and local regula-
tion that conflicts with federal law. e
doctrine has prevented state and local governments
from ratcheting down automobile pollution stan-
dards, banning PCB disposal, and recovering com-
mon-law damages for groundwater contamination.
But preemption may also have a role in protecting
the integrity of the administrative and judicial sys-
tems that implement environmental laws. More
specifically, the doctrine empowers courts to over-
turn state laws — referred to here as “de-lawyering”
laws — designed to strip legal representation from
citizens who wish to participate in environmental
decisionmaking as provided for in federal legisla-
tion.
But would a state legislator really try to strip
legal representation from his or her state’s own
citizens? at is what happened in Louisiana last
spring, when State Senator Robert Adley intro-
duced a bill to de-lawyer the clients of the Tulane
Environmental Law Clinic. e clinic is a program
of Tulane University that offers law school credit
to students who provide free legal representation to
clients on environmental issues. Adley told the Ba-
ton Rouge Advocate that his proposed legislation was
“about sending a message that Louisiana is open for
business.” He argued that because Louisiana funds
some Tulane programs, the university is “biting the
hand that feeds it,” explaining to the National Law
Adam Babich is a profe ssor of law at
Tulane University an d directs the Tulane
Environmenta l Law Clinic. Brandon David
Sousa is a student atto rney in the clinic
and will receive his J.D. fr om Tulane Law
School this year.
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