Volume Eight, Issue One Fall 2002 From Harlem to …telc/assets/Env_Newsltrs/v.8 Fall 2002...ing...

Professor Sheila Foster of FordhamUniversity School of Law in New Yorkis accustomed to analyzing environmen-tal regimes in the sometimes-meanstreets ofU n i t e dStates’ ur-ban neigh-borhoods. Aspecialist inurban envi-ronmenta llaw and theunique legalissues thatUS citiesface, Profes-sor Foster opened her eyes this pastAugust to a cityscape that at timeslooks more like Beirut than Brooklyn.

The Malecón, or seawall, of Ha-vana, is also the name given to a broadavenue that traces the shoreline for

TULANE ENVIRONMENTAL LAW NEWSA Publication of the Tulane Environmental Law Society & the Tulane Institute for Environmental Law & Policy

Volume Eight, Issue One Fall 2002

Jonathan Nash Joins Environment Faculty

Printed on Recycled Paper

Tulane extends a warm welcome toProfessor Jonathan Nash as he joinsour faculty this fall. He comes toTulane from the University of ChicagoLaw School, where he has been on fac-ulty for the past two years. A graduateof NYU School of Law, Nash has clerkedfor the U.S. District Court for the South-ern District of New York and for the U.S.Court of Appeals for the Fourth Circuit.He has experience in both civil and crimi-nal litigation in New York City, includ-ing white collar defense work, tax litiga-tion, and transactional practice. Afterreceiving his LL.M. from Harvard LawSchool, he went on to do postdoctoralresearch at the New York UniversityCenter on Environmental and Land UseLaw, where he began researching trad-able air emissions permits.

Professor Nash brings new per-spectives to Tulane, in particular on theinterplay of markets and environmentalprotection. In these he includes “po-

This article is brought to you notonly for its information on environmen-tal law in Africa, but also to underlinethe great commonality in thesestruggles, their challenges and theirsolutions, be they in Liberia, Louisi-ana or any other part of the world.

Liberia is a small nation on the westcoast of Africa with rich natural re-sources and a special relationship to theUnited States. In 1822, an AmericanQuaker society started a colony of re-patriated slaves in West Africa; twenty-five years later, the colony was recog-nized as the new nation of Liberia. Be-cause of its American origins, the cul-ture, governance and law of Liberiawould follow that of the United States.

Today, Liberia is a country undersiege. Fifty percent of the country’ssurface is covered by forest, but civilwars and unrestrained mining and log-ging have wasted much of the land-scape. Shifting cultivation, livestock,fuel wood harvesting, charcoal produc-tion, human settlements, fishing and

Continued on page 8

Green Advocatesin Liberia

From Harlem to Havana:Environmental Law after the “Special Period”

Continued on page 10

litical markets,” a nod toward pragma-tism in environmental law. His works inprogress in-clude ananalysis ofthe extent towhich trad-able permitscreate prop-erty rights,and of trad-able endan-gered spe-cies permits.

In the Fall 2002 semester, Nash willteach Pollution Control; in the spring,he will teach Law & Economics (with anenvironmental policy bent) and CommonLaw Property. He says he is eager to bein a city with “such rich culture, greatrestaurants, and weather warmer thanChicago.” On the other hand, ProfessorNash, there is August in New Orleans…—Clare Bienvenu, 2L

miles between the outskirts of Havanaand the old city. It presents an almostunbroken row of late 19th Century ar-chitecture that sits battered by the ele-

ments andby overduerepair. Ast h eM a l e c ó nrolls intoHavana, thescene ap-pears littlec h a n g e dsince the1950’s –save for the

presence of less affluent residents,fledgling street merchants, and an oc-casional tree sprouting from an upper-story window – new modes of life incentury-old edifices.

Professor Foster joined a research

project that Tulane’s Institute for Envi-ronmental Law and Policy sponsored inCuba this summer as part of the urbanresearch team; her tentative thesis onthe experience: “From Harlem to Ha-vana: Sustainable Urban Development.”Other teams focused on rural and oncoastal concerns. Under a long-termgrant from the John D. and Catherine T.MacArthur Foundation, and with sup-port from the General Service Founda-tion, the Institute took fifteen academ-ics and experts in environmental law andpolicy to points in and around Havana.Professors from Law Schools in Florida,Texas, California and Washington –

Jonathan Nash

Havana’s malecón winds into the city along a boulevard thatdraws more pedestrians than cars today . . . and tomorrow?

2 Tulane Environmental Law News

Columbia Law Students Take Spring Break at Clinic

Tulane Environmental Law Clinic News

Continued on page 13

Political Controversy and Citizen Enforcement at the

Tulane Environmental Law Clinic Last December saw the premiere

of Lifetime Television’s “Taking BackOur Town” - a film about St. James Citi-zens for Jobs and the Environment’ssuccessful challenge to Louisiana’s de-cision to allow Shintech, Inc. to build ahuge new polyvinyl chloride plant in analready overburdened community. Stu-dents from Tulane’s Environmental LawClinic represented St. James Citizens inthe case and the clinic features promi-nently in the film.

After the St. James Citizens’ suc-cess in the Shintech case, the Louisi-ana Supreme Court revised Rule XX,which allows Tulane’s student attor-neys to appear in court before complet-ing law school or passing the bar exam.As it has turned out, however, the prac-tical effect of the revisions has not beento deny legal representation to theclinic’s clients or to diminish the role of

the clinic’s student attorneys. Instead,as explained in an article posted on theclinic’s web page (http://www.tulane.edu/~telc), the clinicremains a vital part of the Louisi-ana legal community and a placewhere Tulane law students rep-resent real clients on the cutting-edge of environmental law.

Perhaps inevitably, giventhe state of environmental regu-lation in Louisiana, the clinic’sdocket is focused largely on therelated issues of (1) the rule oflaw and (2) environmental pro-tection and justice. For years,many of the clinic’s clients havemaintained that Louisiana’s De-partment of Environmental Quality(LDEQ) - despite the best efforts ofsome individual LDEQ staff members -has failed to competently or evenhand-

edly administer the anti-pollution pro-grams that the Louisiana legislature and

the U.S. Environmental ProtectionAgency have entrusted to it. Many ofthese concerns were confirmed and am-

Think about your favorite SpringBreak. For some of us that would beCancun, or Fort Lauderdale, or perhapssomething you remember as terrific butcan only hazily recall. For a group ofColumbia law students, the annual ritualthis last Spring involved helping peoplefor whom Spring Break is something thatother people do, people from a differentworld. Instead of foam parties or me-chanical bulls, the New Yorkers chosepublic interest work in New Orleans.

In March, twelve Columbia stu-dents piled into two vans and drove the24 hours from the Big Apple to the BigEasy to assist the Tulane Environmen-tal Law Clinic. Jobs varied, but theyinvolved experiences rarely obtained inyour standard law firm. They hauled aclinic copier to the Louisiana Depart-ment of Environmental Quality to makecopies of water discharge permits andviolations records; they interviewed cli-ents in low-income communities; theyhelped prepare for trials and started filesfor new enforcement actions.

Columbia 2L Tabber Benedict com-mented, “I was personally touched byvisiting and listening to a resident whohas been living next to an oil refineryknown to be in continuous violation ofits emissions limits.” Jacob Kaplan said,“it opened my eyes to a problem that Ihad not seriously thought about.”

Of course, no trip to New Orleans iscomplete without local food and music.During one trip to Baton Rouge, the stu-dents were treated to genuine Louisi-ana po’ boys by members of LouisianaEnvironmental Action Network. Theyalso managed to sneak away to catchlocal bands. Food favorite: Redfish.Music favorite: the Rebirth Brass Band.

While this was only the first year ofthe program, it could become an annualevent. Michael Walsh says that he “rec-ommended it highly to the first and sec-ond years who asked me about it.” Withsupport like that, Columbia studentsmay well be back for Spring Break inNew Orleans next year. We’ll be ready.And we’ll thank them for coming.—John Wayne Pint, 2L

Tulane Environmental Law News© Tulane Institute for

Environmental Law and Policy6329 Freret Street

New Orleans, LA 70118, [email protected]

all rights reserved

EditorJohn Wayne Pint

Co-editorsClare BienvenuCarson Hodges

Jennifer LiuGenifer Tarkowski

Staff WritersTara McBrienJosh Schnell

Kathleen Harrison

Faculty AdvisorsEric Dannenmaier

Oliver Houck

The Tulane Environmental Law Society andthe Tulane Institute for Environmental Law& Policy would like to thank everyone whocontributed to this issue.

Clinic Student-Attorney Samantha Klein and clientNeil Couvillon meet the press outside Louisiana DEQupon submitting a petition to audit an air bankingsystem under the Clean Air Act.

Tulane Environmental Law News 3

TULANE ENVIRONMENTAL LAW SOCIETY – CALENDAR OF EVENTS

Sept. 2 – Bike trip (LakePonchartrain)Sept. 12 – Brown bagSept. 12 – Welcome PartySept. 18 – General meetingSept. 21 – Canoe trip (Red Creek)Sept. 23 – Dues deadlineSept. 26 – Get togetherSept. 28 – Community serviceOct. 5 – Outing (LUMCON)Oct. 10 – Brown Bag

Photos courtesy of Eric Dannenmaier, Leslie Kieg, Alfred Brownell, Rebecca Dayries, Oliver Houck, Edward Yates and Tulane Environmental Law ProgramArchives. All rights reserved.

Environmental Law Society News

The New ELS Board

ELS and Institute Plan for 2003 Spring ConferencePlanning began in earnest in Sep-

tember for the 8th Annual Tulane Envi-ronmental Law Conference: Law, Sci-ence and the Public Interest – set for

March 28 - 29,2003, in New Or-leans. The event,co-hosted by theEnvironmentalLaw Society andTulane’s Institutefor EnvironmentalLaw and Policy,t r a d i t i o n a l l ydraws 300 plusparticipants fromacademia, lawfirms, businessand advocacygroups, and thegeneral public

from around the Gulf Coast. Partici-pants from conferences past havepraised the format that commingles le-gal analysis with scientificdiscussion in plain En-glish, and provides expla-nations and practical ad-vice in an accessible atmo-sphere. As one of theconference co-foundershas said, “It’s a jazz festof sorts. So many choices,so little time.”

Plans for 2003 include panels oninternational development equity andhuman rights, agriculture policy, sus-tainable cities, and gulf coast manage-ment, among others. The conferencewill also include the usual mix of goodmusic, hot food, and Sunday field trips.Plan to come and “pass a good time.”

Outings Chair: Josh Schnell [email protected] Chair: Emily Greenfield [email protected]

Treasurer: Carson Hodges [email protected] Coordinator: John Wayne Pint [email protected]

For more information, contact TELS officers:President: Tara McBrien [email protected] President: Jennifer Liu [email protected]: Nicole Adame [email protected] Chair: Kay Jowers [email protected]

Environmental Law in Cuba 1Johnathan Nath Joins Environmental Faculty 1Green Advocates in Liberia 1Environmental Justice: Sandoval 4Tulane Environmental Law Journal News 5Reforming the Army Corps of Engineers 6International Wildlife Law Conference 9

Visisting Profesor Wil Burns 9Institute Agenda 11Joint Degree Program 11Summer Clerkships 12Tulane Environmental Law Alumni 13Horn Island 15John Suttles Becomes Clinic Deputy Director 15

In this Issue:

Professor Houck moderates last year’s point-counterpointbetween the President of Friends of the Earth and the ChiefCounsel to the U.S. Army Corps of Engineers’

Oct. 16 – General MeetingOct.19 – Overnight Outing (WolfCreek)Oct. 22 – Careers PanelOct. 24 – Get TogetherOct. 26 – Community ServiceNov. 2 – Outing (Bike or Paddle)Nov. 6 – General MeetingNov. 14 – Brown BagNov. 21 – Get TogetherNov. 23 – Community Service

TELJ got the year off to a great start with 50 new members and a calendar that promises a semester full of adventure andcamraderie. The Fall schedule follows:

Tulane Grads AldoSpicacci (LLM‘01)& Victor Valdovinos(LLM’99) catch upat the 2002 SpringConference. Bothare involved in toxictort litigation inLatin America.

Last year’s conference includedpanels on human rights and the envi-ronment, environmental crimes, and wa-

ter quality. The meeting also featured aspecial point-counterpoint on the roleof the US Army Corps of Engineers inthe 21st Century. The keynote addresswas delivered by Brent Blackwelder,President of Friends of the Earth, whoargued for strenghened alternate energypolicies.


Continued next page

Environmental Justice: Is There Life After Sandoval?

Residents of thisneighborhood share afence line with a ma-jor petroleum refin-ery. Environmentaljustice claims oftenarise in communitiessuch as this that areproximate to indus-trial facilities and dis-proportionately af-fected by their indus-trial neighbors.

Environmental justice claims, although few in number,have filled an important gap in environmental regulatoryprograms which, even when conscientiously applied, pro-vide few protections against the cumulative effects of pol-luting activities in minority communities. It was exactlythese claims that the Tulane Environmental Law Clinicraised in the now-infamous Shintech permit proceedings,and that produced such a strong political reaction from theLouisiana Governor and industry associates. At bottom,and at stake, is the future legal basis for such claims. – Ed.

The United States Supreme Court’s 2001 decision inAlexander v. Sandoval presented a substantial barrier to en-vironmental justice claims, but initially, the height of thatbarrier was not entirely clear. In December 2001, however, theThird Circuit Court of Appeals resolved one of the questionsthat Sandoval left openagainst the environmen-tal justice claimants. Inthe wake of SouthCamden Citizens in Ac-tion v. New Jersey De-partment of Environmen-tal Protection, there ap-pears to be little room forjudicial review of envi-ronmental justice claims.Indeed, the more perti-nent question is whetherthese decisions prefigure a roll-up of the disparate impactregulations which form the basis for these claims.

BackgroundEnvironmental justice claims are based on disparate im-

pact regulations and guidance promulgated by federal agen-cies, principally the Environmental Protection Agency (EPA),under the authority granted by Congress in Section 602 ofthe Civil Rights Act of 1964. In Section 601, codified at 42U.S.C. 2000d, Congress provided:

No person in the United States shall, on the groundof race, color, or national origin, be excluded fromparticipation in, be denied the benefits of, or be sub-jected to discrimination under any program or activ-ity receiving federal financial assistance.

The Supreme Court has held that Section 601 proscribesonly intentional discrimination. Section 602, however, em-powers federal agencies “to effectuate the provisions of sec-tion 2000d . . . by issuing rules . . . which shall be consistentwith achievement of the objectives of the statute.”

The disparate impact theory originated in the employ-ment law arena, but has been used in other contexts withincreasing frequency in recent years. In Washington v. Davis,the Supreme Court warned that the broad application of thedisparate impact theory “would be far-reaching and wouldraise serious questions about, and perhaps invalidate, a whole

range of tax, welfare, public service, regulatory, and licensingstatutes that may be more burdensome to the poor and to theaverage black than to the more affluent white.” The Courtsuggested, “extension of the rule beyond those areas whereit is already applicable by reason of statute, such as in thefield of public employment, should await legislative prescrip-tion.” Legislative prescription came to the area of employ-ment law in 1991, but that is as far as Congress went.

Notwithstanding the Court’s warning, the Clinton Ad-ministration aggressively pursued disparate impact claimsoutside the employment context. In the environmental con-text, EPA’s Office of Civil Rights issued guidance requiringfederal programs to avoid disparate impacts on racial minori-ties. Constitutional authority to condition financial assistancewas supported by the Court in South Dakota v. Dole.

Whether the EPA woulddo so on its own initia-tive was another matter.

Alexander v. SandovalIn Alexander v.

Sandoval, the Courttook the opportunity toreview an application ofthe disparate impactregulations. MarthaSandoval sued the Ala-bama Department of

Public Safety seeking to compel it to administer its writtenexaminations for standard driver’s licenses in languages otherthan English. She relied on the disparate impact regulationsthat were incorporated in grants from the United States De-partments of Justice and Transportation. None of thosegrants funded driver licensing activity, instead funding ac-tivities like marijuana eradication, speed limit enforcement,participation in a national problem driver’s registry, and hos-tage negotiation training. That made no difference because,as noted above, Congress has defined “program or agency”to cover an entire agency when any grant funds are received.The district court ruled in Sandoval’s favor, and the EleventhCircuit affirmed, both courts holding that the agency dispar-ate impact regulations could be enforced in a private action.

In reversing the Eleventh Circuit’s decision, the SupremeCourt returned the analysis to its core. It observed that Sec-tion 602 does not contain any “rights-creating” language.Instead, “[f]ar from displaying congressional intent to createnew rights, § 602 limits agencies to ‘effectuat[ing] rights al-ready created by § 601.’” The Court concluded, “Neither asoriginally enacted nor as later amended does Title VI displayan intent to create a freestanding private right of action toenforce regulations promulgated under § 602.”

Significant as the Court’s decision was, it did not re-solve every important issue. First, the Court did not reachthe question of whether 42 U.S.C. § 1983 provided a means

5Tulane Environmental Law News

Sandoval - Continued from previous page

for private enforcement. Second, the Court “assume[d] . . .that regulations promulgated under § 602 of Title VI mayvalidly proscribe activities that have a disparate impact onracial groups, even though such activities are permissibleunder § 601.” In sum, Sandoval foreclosed civil actions di-rectly premised on the regulations, but left open the possibil-ity that the regulations might be enforced in another way.

South Camden CitizensIn South Camden Citizens, the Third Circuit considered

whether 42 U.S.C. § 1983 provides a vehicle for pursuingclaims based on the regulations. The Court’s negative re-sponse shuts the door to the most obvious alternative av-enue for review.

The New Jersey Department of Environmental Protec-tion had issued an air permit to St. Lawrence Cement Com-pany for a blast furnace slag grinding facility in an industrialarea in Camden. The area, already home to a number of in-dustrial facilities, as well as two Superfund sites, was 63%African-American and 28.3% Hispanic. St. Lawrence selectedthe site due to its location: Camden is a port city which al-lowed the company good access to Europe and the Philadel-phia-New Jersey-Delaware market; the necessary skilled la-bor was also available. Thus, the company showed no intentto discriminate, but a clearly disproportionate impact. SouthCamden Citizens filed suit alleging, inter alia, that the facil-ity would have a disparate impact in violation of the § 602regulations.

After Sandoval was decided, the district court allowedthe plaintiffs to amend their complaint to state a claim under42 U.S.C. § 1983 and then ruled in their favor. On appeal, theThird Circuit reversed, finding that the disparate impact regu-lations prohibited conduct that Congress had not prohib-ited. As the court explained, the case presented “the ques-

tion whether a regulation can create a right enforceablethrough section 1983 where the alleged right does not appearexplicitly in the statute but only appears in the regulation.”The court concluded that Congress, not an administrativeagency, must create the right for redress.

The Future of Environmental Justice ClaimsWith the rulings in Sandoval and South Camden Citi-

zens, the future of private environmental justice claims in thecourts does not look bright. Sandoval clearly foreclosesdirect reliance on the regulations by private plaintiffs, andSouth Camden Citizens forecloses reliance on § 1983. Obvi-ously, the impact of South Camden Citizens is more limited atthis time because it is binding only in the Third Circuit. Al-though another circuit may rule in the opposite way, creatingthe potential for a circuit split and Supreme Court review, theCourt seems little inclined to reverse.

In future environmental justice claims, the validity of thefederal regulations is likely to be challenged, and unless analternative basis is found to Section 601, the challenge islikely to succeed. Even if this hurdle is cleared, the degree ofproof required to show disparate impact remains in doubt. InSouth Bronx Coalition for Clean Air v. Conway, for example,a federal district court dismissed an action against a solidwaste transfer facility, citing New York Urban League, Inc. v.State of New York, in which the Second Circuit held that aproper disparate impact showing requires both “a reliableindicator of disparate impact” and “an appropriate statisticalmeasure.” These are substantive concerns that will not beeasy to resolve, even in a more favorable legislative climate.

- John J. Park, Jr., Office of the Attorney General, Alabama.

The Tulane Environmental Law Journal closed its 15th year with the Spring ’02 issue, which featured the results of a panelon water management sponsored by the Journal at the Environmental Law Conference in March 2002. The academic year2001-02 also saw a new rise in subscribers - a testament to the quality of the Journal’s articles.

Volume 16 will follow the traditional format of an eclectic, generalist Fall issue and a symposium feature for the Spring.The symposium will focus on the Endangered Species Act, which endures as one of the most controversial laws in Americaand one of its most successful in protecting the environment. The symposium will treat several of the Act’s recent “hot-button” issues, including water rights, incentive strategies and pending legislation.

New for 2002-03, and new for the Journal itself, will be a special, third edition on the emerging environmental law andpolicy of Cuba and the Caribbean. This symposium issue will build on research conducted by more than a dozen U.S. andLatin American law professors and practitioners, in cooperation with Cuban institutions under the auspices of the TulaneInstitute for Environmental Law and Policy (see related article at page 10).

Tulane alumnae and practitioners are encouraged to submit articles on any aspect of environmental law to the Journal.For Journal-related information, please contact the Senior Articles Editor, Leslie Kieg at [email protected].

—Douglas McLand, 3L and Editor in Chief of Volume 16

Tulane’s Environmental Journal -Year Features Special Third Edition


Reforming the Corps of EngineersReport From Washington

When Congress returns from its August recess, bothchambers may take up the biannual Water Resources Devel-opment Act (WRDA), which authorizes new projects for theArmy Corps of Engineers. Members like to insert their petprojects and get a bill approved so that they can boast totheir constituents about bringing home the bacon.

A big surprise may be in store this year because foursenators are waiting to enact major reforms of the Corps.Senators Smith (R-NH), Feingold (D-WI), Daschle (D-SD),and McCain (R-AZ) have introduced a bill (S. 646), requiringindependent peer review of major projects, serious mitiga-

tion of fishand wildlifed a m a g e scaused byprojects, andmore equitablecost sharingrequirements.Suppor t ingthese effortsis a large coa-lition of na-tional, stateand local envi-r o n m e n t a lgroups alongwith fiscalconservationsand taxpayerorganizations.

The WRDAgoes beforethe Senate En-vironmentaland Public

Works Committee for approval. Because one of the reform-ers, Senator Smith, is the ranking Republican on the Commit-

tee and because the Chairman Jim Jeffords (I-VT) is also asupporter of reform, the chances for a major Corps overhaulto be approved in Committee are good. However, as scrutinyof the Corps has grown this summer, supporters of the cur-rent pork barrel authorization process (you-vote-for-my-project, I’ll-vote-for-yours) have organized an effort to de-feat these reforms. Senators Bond and Carnahan of Missourisent a letter to the Environment and Public Works Committeevowing to block on the Senate floor any Corps authorizationbill that includes reforms.

The situation in the House is quite different because theauthorizing committee, the Transportation and InfrastructureCommittee, is generally hostile toward making fundamentalchanges in the Corps. Thus, amendments will be needed onthe House floor if there is to be any reform from that body.Rep. Kind (D-WI) who introduced the companion reform billH.R. 1310 in the House is the logical leader of this effort.

Two significant reports by independent institutions maylend momentum to the reform effort. In July, the GeneralAccounting Office (GAO), which is an auditing arm of Con-gress, released a report detailing numerous accounting er-rors made by the Corps in its justification for a big dredgingproject on the Delaware River. The GAO concluded that theCorps had substantially overstated the financial benefits ofthe project, and the ensuing publicity led the Corps to sus-pend work on the project. The prestigious National Acad-emy of Sciences (NAS) took a look at Corps practices andissued a report calling for independent peer review for costlyand controversial Corps projects.

Another factor that could weigh heavily in the debate isthe volume of scandal associated with major companies andaccounting firms. The fact that Enron, Arthur Anderson,and World Com, to name a few, have been caught fudging thenumbers and deceiving shareholders, investors, and the pub-lic could have a spillover effect on the Corps. There is grow-ing evidence from independent bodies, such as those justmentioned, that the Corps, too, has been cooking the books.In today’s climate, fewer politicians may want to be seen

Continued next page

Any conversation about the U.S. Army of Corps of Engineers civil works program produces both heat and light.Easily the most important public works projects in Louisiana (without them, the City of New Orleans would not exist) ...and no small potatoes in any region of the country ... they have also been the most harmful to anadromous fisheries,migratory waterfowl, freshwater mussels (the most endangered family of species in America), wetlands, bottomlandhardwoods and a steady host of scientists, fishers, hunters, recreational paddlers and others who simply like their waterand wildlife the way nature made them.

No surprise, then, that a Point/Counterpoint debate between Brent Blackwelder, President of Friends of the Earth,and Robert Andersen, Chief Counsel in the Army Corps of Engineers, drew a crowd at the 2002 Environmental LawConference to ask their own questions about the hottest topic in water resources development for many years, The Futureof the Corps. For most environmentalists and their lawyers, dealing with the Corps on individual projects has been liketinkering with the donuts without fixing the machine. Over the past two years, however, a series of news articles andcongressional inquiries surfaced more systematic problems within the Corps, most particularly with the justificationsand funding of its projects. For the first time in decades, there could be serious, legislative movement on Corps Reform.

A Corps Coloring Book questions long-term plansfor our 25th state (above) and challenges theCorps’ alleged motto, “keep busy” (see enlarge-ment at right). © 2002 Arkansas Democrat-Ga-zette, used with permission.


supporting an agency that is fooling taxpayers or investors.

Current legislative proposals for Corps reform include:

Independent Peer Review of Costly or ControversialCorps Projects: Large controversial projects would be sub-jected to review by an independent panel of biologists,economists, and engineers to ensure that the Corps’ techni-cal analyses are sound and unbiased, and that nonstructuralmeasures resulting in better outcomes are fully evaluated.

Full, Timely, and Ecologically Sound Mitigation: TheCorps would be required to fully mitigate for the environmen-tal harm caused by its projects, restoring at least one acre ofsimilar habitat for each harmed, and to monitor its mitigationefforts to ensure that they are successful. Strict deadlineswould ensure that miti-gation is completed ina timely manner, andthe Corps would notbe able to constructany new projects in awatershed until it hascompleted all plannedmitigation within thatwatershed. In itsVicksburg District,alone, the Corps hasyet to replace about30,000 acres of flood-plain forest and wet-lands destroyed byflood control projects.

New Environmental Protection Requirements: TheCorps would be prohibited from recommending projects un-less the Secretary of the Army certifies that the project willminimize, to the maximum extent practicable, the adverse im-pacts on the natural hydrologic patterns of aquatic ecosys-tems, and the adverse impacts on the value of native diver-sity of aquatic ecosystems. The Corps also would be prohib-ited from using the value of private benefits derived fromdraining wetlands to help justify construction of a water re-sources project. Currently, the Corps claims benefits for drain-ing wetlands, an activity that is directly contrary to thelongstanding, bipartisan national policy of no net loss.

New Environmental Protection Goal: The Corps wouldbe required to design and manage projects to maximize bothenvironmental protection and economic development. Cur-rently the Corps designs projects to maximize economic de-velopment only; environmental protection is only a projectgoal to the extent it produces dollar benefits.

Public Access to Information: The Corps would be re-quired to set up a publicly accessible system to track prom-ised and implemented mitigation, both for its Civil Works andClean Water Act § 404 regulatory programs. The Corps alsoshould make all data and information considered in the plan-

ning of civil works projects available to the public. Becausethe Corps doesn’t track the results of mitigation efforts, ithas no basis for making sound decisions regarding the effec-tiveness of mitigation or the impact of its projects or permits.

This fall could also see an effort to short circuit the re-form proposals as the annual Energy and Water Appropria-tions bill is considered. This appropriations bill providesmoney for ongoing, already authorized Corps projects and isa major vehicle typically sought by those who want to add apet project or block reforms. For example, some legislatorswant to weaken the cost-sharing requirements on harbordredging. Others will want to give the Corps the green lightto do single-purpose water supply projects. In particular, we

expect a rider fromSenator Bond (R-Mo)that would be envi-ronmentally-benefi-cial by preventingchanges in the opera-tion of upstream damson the Missouri River.Because Senate Ma-jority Leader TomDaschle of South Da-kota wants thesechanges, which havebeen recommendedby the Fish and Wild-life Service, a fight isin the offing.

So there could be action in both the authorization andthe appropriation bills for the Corps. As the debate ap-proaches, it is good to put this reform effort in historicalperspective. A number of important changes have been madein the Corps programs in the past 30 years and over 100unsound projects were defeated by well-organized citizensand effective environmental lawyers. One key achievementwas to block the Corps authorization bill for ten straight yearsfrom 1976 until 1986, at which time the Congressional pork-barrelers threw in the towel and accepted the propositionthat private beneficiaries from Corps projects should pay atleast part of their costs. These successes demonstrate thatentrenched bureaucracies like the Corps can change.

Notwithstanding these successes, more reforms areneeded; the fundamental flaws in project development re-main unchanged. As we speak, the Corps is poised to em-bark on a new set of highly questionable harbor dredgingand wetland drainage projects. The question is, under whatrules for the 21st century?

The legislative schedule is tight for the fall, but therecould be some real fireworks over water projects and thefuture of the Corps.

—Brent Blackwelder, President, Friends of the Earth

Reforming the Corps Continued from previous page

Green Advocates Continued from page 1


TLS Graduate Alfred Brownell working with constituents in Liberia

industrial processes have also contributed to a downwardspiral in protection that is accelerating each year.

Green Advocates is a newly-formed association ofLiberian lawyers dedicated to reversing this trend througheducation, legislation and the rule of law. The organization ismodeled in large part on the strategies of European non-governmental organizations (NGOs) and United States pub-lic interest environmental law firms. Since most of the victimsof environmental degradation and pollution in Liberia arepoor and indigenous peoples without access to any form oflegal representation, one objective of Green Advocates is toprovide free legal services to all clients upon request.

EducationLiberia suffers a dearth of information and education on

environmental issues. Green Advocates’ first initiative wasa massive public awareness campaign throughout Liberia onsustainable resource useand the benefits of envi-ronmental protection. Theprogram featured environ-mental posters, bumperstickers, greeting cards,billboards and audio-visu-als with messages targetedat both local communitiesand decisionmakers. Itwas also transmittedthrough tribal languages,exhibits, and cultural per-formances. In 2001, GreenAdvocates establishedtwo nature clubs on thecampus of the Universityof Liberia, and a commu-nity-based nature clubcalled Community Environmental Care, in Monrovia, whichhas launched several outreach programs.

Policy and LegislationFrom 1998 to 2000, Green Advocates and other groups

led a successful campaign for Liberia’s ratification of theConvention on Biodiversity. A similar campaign is now un-derway by the Green Advocates for the ratification of theFramework Convention on Climate Change, now before theLiberian Legislature for consideration.

Between 1999 and 2001, Green Advocates assisted theLiberian government in drafting a comprehensive environ-mental policy on the sustainable management of Liberia’snatural resources. It is currently engaged in a public aware-ness campaign to ensure that the document remains asdrafted, and is not adulterated and diluted in the approvalprocess. Green Advocates volunteers are traveling the coun-try to educate the population about the content and impor-tance of the law.

The Upper Guinea Forest CampaignLiberia is the custodian of the largest remaining portion

of the Upper Guinea Forest, one of the richest and most bio-logically-diverse on the African continent. In 1999, GreenAdvocates adopted the Forest as a National Flagship Sym-bol, advocating the enactment and enforcement ofbiodiversity and land management policies and reversing thetrend of habitat fragmentation and species depletion. Theultimate objective is to create several national parks and pro-tected areas in Liberia, and a biological corridor connectingthem. The campaign also seeks to strengthen protectionsfor the existing parks of Sapo, Cestos Sanquin, Lake Piso,Lorma Gola and Khran Bassa, all declared natural areas butlacking laws and even basic management strategies.

Early this year Green Advocates worked with severalinternational environmental NGOs and the government to

launch the Reassess-ment of the Liberian For-est. The goal is to setaside a fixed percentageof each forest as com-pletely protected areas.

Law CompilationLiberia has few en-

vironmental laws. Thosethat exist are confusing,conflicting, economi-cally-driven, and a recipefor more environmentaldegradation. The insti-tutional arrangementsare not much different.The country’s continu-ing civil war destroyedboth governing systems

and records. With the absence of records, most governmentagencies make decisions on the environment relying on theexperience and knowledge of their elderly employees. GreenAdvocates volunteers have been involved in the collectionand compilation of existing legislation and regulations onthe environment from private sources. Several governmentinstitutions have also called on the Green Advocates to as-sist them in reviewing and drafting their laws and regula-tions; examples include the City Corporation of Monrovia,the Ministry of Agriculture and the National Oil Company.

Legal ActionGreen Advocates will be involved in challenging gov-

ernmental administrative decisions and actions that are arbi-trary and capricious, seeking declaratory orders, injunctions,prohibitions and mandamus, all available remedies in theLiberian judicial system. Relatedly, Green Advocates is col-lecting evidence on several corporate entities in Liberia witha view of pursuing civil damage actions. Taken together,

Continued next page


Green Advocates Continued from previous page

administrative and civil actions are contemplated against:

• three government entities with statutory responsibilities for managing solid waste in Liberia, to clean up hazardouswaste dumps scattered all over Monrovia and within overpopulated communities;

• the Liberian Water and Sewer Corporation to repair and maintain the constant overflow and leakage of its sewersystem, as well as to provide treatment before the effluents are discharged into rivers and coastal waters used for washing,bathing, and recreation;

• the Forestry Development Authority (FDA) and the Ministry of Public Works to implement existing forestry regu-lations on selective logging and to prohibit permits for road construction through protected areas;

• the Oriental Timber Company and other logging companies, for violating existing forestry laws as well as for humanright abuses in communities living in those areas;

• the Firestone Rubber Plantation Company for using tons of toxic chemicals in its operations that have probablymigrated untreated into the water systems. Firestone is the oldest multinational corporation in the country, in operation since1923. There have been reports of massive fish kills in the areas, but no investigation has been conducted on the effect of thislong-term use of the chemicals on the local inhabitants or on rubber workers on the plantation;

• CEMENCO, a cement manufacturing plant situated in the middle of an extremely poor community in Monrovia. Onany given day, particulate matters from this operation (transport and manufacturing process) virtually cover the communityand its inhabitants;

• Freedom Gold, a multinational corporation owned by American televangelist Pat Robertson. There are reports thatFreedom Gold is using mercury in its mining operation, as well as employing child labor. Green Advocates did send in avolunteer to investigate but was barred from entering the area of operation by private militia employed by Freedom Gold.

We at Green Advocates hope that this is only the beginning – and that by this beginning, we can bring environmentallaw and justice to our country.

— Alfred Brownell , TLS LLM 2002. Mr. Brownell received his LLM in Energy and Environment Law at Tulane in2002, and is a founding member of Green Advocates.

Tulane to Host 2003International Wildlife Law Conference

Professor William C.G. Burns brought over twenty yearsof non-profit experience in wildlife law to Tulane this pastSpring, adding a practical edge to the classroom. In his workwith the Pacific Institute for Studies in Development, Envi-ronment and Security, Prof. Burns and his colleagues assistsmall island nations involved in conflicts in protecting theirnatural resources. One such conflict is the threat to the exist-ence of these islands caused by sea level rise from globalwarming. The Institute is exploring the potential for a smallisland nation to litigate against a larger island nation thatcontributes significantly to adverse climate change.

Prof. Burns believes that useful scholarship affects policy.Professor Burns’ Tulane seminar, “Environmental Law: TheEmerging International Climate Regime,” asked the policyquestion with respect to global climate change. Students

wrestled with the United Nations Framework Convention onClimate Change, and the 1997 Kyoto Protocol. They wentfurther – and those with sci-ence backgrounds wentmuch further – to explore whyclimate change is occurring,and its impact on the globalenvironment. Conclusion: Itis happening, the impact isalready large, and the policyquestion is apparent to ev-eryone but current occu-pants of the White House.

—Jennifer Liu, 2L

Stretching our Minds: Visiting Professor Wil Burns

Organizers of the 8th Annual International Wildlife Law Conference, which gives rise to the annual Journal of InternationalWildlife Law, have decided to move the event to Tulane in 2003 -- to be co-hosted by the Institute for Environmental Law andPolicy. The event began at Georgetown, and has been held in Washington, DC since its inception. Wil Burns, who is theChair of the Society’s Wildlife Interest Group, says he is enthusiastic about bringing the Conference here. Burns says thatTulane has a “number of excellent tools in the toolbox” for future environmental lawyers. We look forward with equalenthusiasm to seeing him again.

Visiting Professor Burns


CUBA BY BUS CONTINUED FROM PAGE 1

along with practitioners from elsewhere in the United States,Mexico and Chile – took a hard look at Cuba’s evolving sys-tem of environmental law. The researchers asked how thesystem is meeting development challenges that most believeare only beginning.

Foster was joined on the urban environmental workinggroup by colleagues from other schools and Professor Houck

of Tulane. Thisteam consid-ered how Cubameets the taskof urban re-newal, historicpreservationand the deliv-ery of environ-mental ser-vices in light ofits unique po-litical and eco-nomic circum-stances. Two

other working groups set off in different directions. A coastalgroup, joined by colleagues from the US NGO EnvironmentalDefense and Tulane’s Environmental Institute Director EricDannenmaier, met with officials responsible for managingmarine resources and overseeing coastal development. Athird group examined Cuba’s rural development and agricul-tural policies – looking, for example, at innovations in or-ganic agriculture that have grown in part from constrainedaccess to modern agrochemical products. In each case, thegroups must sort through the policy impacts of Cuba’s uniquepolitical and economic circumstances, and the lingering ef-fects of the so-called “special economic period” that fol-lowed the collapse of the Soviet Union and Cuba’s conse-quent loss of important trading partners and revenue sources.

The results of all three groups’ work will be published in

The community of Rosario, south of Havana, has faced relocationand hurricanes (a road ran to the left of the tree before the storms,and now even a small storm surge floods homes). A study of how theCuban government developed a negotiated approach to relocatingresidents is one of the cases examined by participants in Tulane’sAugust 2002 research colloquium.

A special 2002-2003 issue of the Tulane Environmental Law Journal will feature research conducted by U.S. and Latin Americanexperts during Tulane’s August 2002 research colloquium in Havana. Authors and topics include the following:

Tom Ankersen “Learning to Speak Environmental Law Creole: Comparative Environmental Law Jurisprudence in Latin America and the Caribbean”

Colin Crawford “The Frog Jumps Because it Must: An Evaluation of Cuba’s Urban Agriculture and its Implications for Land Use Planning”

Eric Dannenmaier “A Beachhead in Havana: The Community Voice in Cuban Coastal Development”Sheila Foster “From Harlem to Havana: Sustainable Urban Development”Carmen Gonzalez “Seasons of Resistance: Organic Agriculture and the Cuban Farmer”Oliver Houck “Thinking About Tomorrow: Cuba and Sustainable Development”Ricardo Katz “Pollution Control Strategies in a developing country. The possibilities of Cuba”Ken Lindeman “Managing Coastal Tourism and Marine Parks in Cuba: The Roles of Impact Assessments, Management Plans,

and Certification Standards”Daniel Suman “Management of Mangrove Ecosystems in Cuba: Evolution of the Legal Framework”Luis Vera “Studies in Enforcement: Cuba and Mexico”Daniel Whittle “Protecting Cuba’s Coastal Environments: Challenges, Opportunities, Solutions”Edward Yates “Environmental Planning in Cuba: Central Planning Meets the Neighborhood”

a special edition of the Tulane Environmental Law Journal inearly 2003 – the first effort of its kind to present a range ofoutside academic views on the environmental and develop-ment policies and practices of Cuba.

In the background, debates continue in the US Con-gress about rethinking a forty year old policy of blockadingand isolating Cuba economically. While the research tripwas academic in nature – focused on environmental policyrather than economic politics – there is little doubt that theeconomic and political circumstances in Cuba, and its long-strained relations with the US, have combined to create alegal laboratory into which few have ventured. The profilesand comparative research that emerge from this colloquium

should prove of interest to those already active in environ-mental policy in the Americas – as well as those who wish topeek behind what’s left of the “curtain.”

–Eric Dannenmaier, Director, Tulane Institute for Envi-ronmental Law and Policy.

TELJ Special Edition to Publish Results of Cuba Research

Cuba’s uniquepolitical andeconomic cir-cumstances -compoundedby the “specialeconomic pe-riod” that fol-lowed the fallof the SovietUnion - haveleft much ofthe country,including Ha-vana, in a sortof suspendedanimation.


INSTITUTE AGENDA: 2002-2003Tulane’s Environmental Law and Policy Institute will be active over the coming year on projects including:

Legislative and Regulatory ReformAssistance to governments in designingenvironmental laws and regulations. Projectsrange from basic water and air regulations todesign of instruments that provide incentivesto meet and exceed baseline requirements.

Public ParticipationPromote legal frameworks that provide avoice for citizens in designing andimplementing environmental policies andprograms.

International Trade and EnvironmentIn partnership with the OAS, WorldResources Institute and The University ofMiami’s North-South Center, the Institutewill conduct an environmental impactassessment of the Free Trade Agreement ofthe Americas. The Institute is also workingwithin Tulane on an interdisciplinaryassessment of economic and politicalintegration in the Western Hemisphere.

Environmental Technology & EfficiencyDesign and implementation of regulatorypolicies that promote new investments inenergy efficiency and industrial cleanproduction in Southeast Asia as well as LatinAmerica and the Caribbean. This supportincludes an Internet-based “virtual dialogue”on industrial incentive policies amonggovernment officials and experts in Andeancountries.

Climate Change PolicyExplore policy challenges associated withClimate Change in the US Gulf Coast andother low-lying coastal areas. The Instituteis commited to the design of national andlocal policy alternatives to implementinternational commitments.

Environmental SecurityExplore linkages between environmentalgovernance models and international security.

Kathy Harrison Joins InstituteKathy Harrison joined Tulane’s Institute for Environmental Law and Policy inApril as Program Coordinator. Kathy is a 1999 Tulane Graduate with a Masters inLatin American Studies and had been working with immigrant and refugee popu-lations through Catholic Charities in New Orleans prior to joining the Institute.She is a native of Virginia, and her studies have taken her to field work in Mexico,Honduras and Cuba. Kathy’s baptism by fire was planning a 20-person aca-demic visit to Cuba for professors and experts from across the United States,among others. She safely navigated licenses, restrictions, visas, and academicegos on both sides of the border to help assure the success of the program.

One Institute priority is the design of legaltools for citizen participation in developmentdecision-making, including the participationof communities traditionally on the marginsof environmental policy, such as indigenouspopulations in countries like Bolivia. Here,indigenous women wait on the steps outsidethe Ministry of Justice in La Paz.

Joint Degrees: Joined StarsTulane Law School maintains joint degree offerings in Law and Business, Law and Latin American Studies, and Law and

Public Health. In Spring 2002, Law and Public Health degrees were conferred upon two of the law school’s top environmentalprogram students: Jeffrey Becker, who had been Editor-in-Chief of the Tulane Environmental Law Journal, and ElizabethAlderman, an active member of both the Journal and the Clinic.

The School of Public Health and Tropical Medicine’s curriculum for lawstudents is titled “Environmental Assessment and Management” and featurescore classes in Biostatistics, Epidemiology, Health Systems Management, andInfectious Diseases. Upper-level classes include Risk Assessment, Toxic andHazardous Wastes, Water Quality, Air Pollution, and various electives. The pro-gram culminates in a “Capstone,” which may be either a master’s thesis or apracticum/internship, the product of which is defended orally before the faculty.

Becker describes the Public Health School faculty as “incredibly knowledge-able,” and more than willing to “spend extra time to bring us up to speed onscientific concepts.” He also stated that while he cannot say if the dual degreehelped him to obtain his job in the environment and energy department of a largelaw firm, almost all of his new peers have an advanced science degrees. Aldermanagrees that her Environmental Health classes were “challenging,” and helpful inunderstanding “how scientific analysis plays into environmental law and policy.”

P.S. -- Becker and Alderman will be married this fall.

Jeffrey Becker and Elizabeth Aldermanwith Chloe (not a TLS grad)

Kathy Harrison, in situ


Tulane students take some amaz-ing journeys into environmental lawpractice as summer interns, often sup-ported by grants from the Tulane Pub-lic Interest Law Foundation. Over thispast summer, and in their own words:

Batya Stepelman, 3L, Conservation In-tern, Audubon Society, Portland, OR

“My summer experience was theperfect foray into public interest work.For my first assignment I analyzed theimplementation of Goal 19 (a statewideplanning goal that protects marinebiodiversity and renewable ocean re-sources) by state agencies, interview-ing policymakers, user groups and ma-rine scientists. After six weeks of re-search, I recommended legislation cre-ating a network of ‘no-take’ marine re-serves as a means of complying withGoal 19. This will be used to shapeAudubon’s presentation to theGovernor’s Office later this fall. Mysecond assignment put me back on dryland. I researched state forestry prac-tices that govern the management ofthe Tillamook Forest - a beautifulcoastal rainforest - deeded to the statefor management by local countiesaround the time of the Great Depres-sion. I analyzed the conflict betweencounties that want the State to maxi-mize timber revenues pursuant to its‘trust’ mandate and conservationistswho call for other uses under the samedoctrine.”

Alison Kirshner , 3L, Appellate Sec-tion, Environmental and Natural Re-sources Division, U.S. Dept. of Justice.

“For me, it was more of the envi-ronment at the DOJ and big picture ofthe job and what the DOJ accomplishedthat I most enjoyed. My most complexbrief involved a condemnation pro-ceeding going back to 1979. After 20years of litigation, one party to the con-demnation wanted to intervene in asettlement that had been reached be-tween the United States and other par-

ties. I drafted the appellate brief for thegovernment, arguing that the appellantlacked standing to intervene in the firstplace and did not satisfy the require-ments for intervention. I was given com-plete responsibility to do my research,decide the arguments I would include,and write them. I also got to attend theAttorney General’s Weekly Lecture Se-ries which gave the interns the opportu-nity to hear many government employ-ees speak to us, including JohnAshcroft, Condoleza Rice, and RobertMueller of the FBI. I loved working atthe DOJ and hope to go back there towork in the future.”

Jennifer Mogy, 3L, Law Clerk, NaturalResources Defense Council, Washing-ton, DC

“My litigation assignments in-cluded analysis of EPA regulations un-der the Data Quality Act, and whetheraction taken in response to the regula-tions was ‘final agency action;’ a memo-randum discussing the ‘law of the casedoctrine’ for a suit against the Depart-ment of Energy, and a memorandum dis-cussing the actions a domestic corpora-tion can take against a foreign govern-ment regarding oil exploration conces-sions. The best part was reading theopinion of the district court judge to notdismiss the DOE case on summary mo-tion, and having my work cited in theopinion. The next best part was comingto the realization that I don’t love policywork. I definitely prefer litigation.”

Tara McBrien , 2L, Office of RegulatoryEnforcement, EPA, Washington, DC

“I clerked in the Multi-Media En-forcement Division (MED). Unlike theother EPA divisions that deal with asingle issue (i.e. air, water, toxics), MEDfocuses on facilities that have violatedmultiple statutes. Much of my work cen-tered around the “Incentives for Self-Policing: Discovery, Disclosure, Correc-tion and Prevention of Violations,” com-monly referred to as the Audit Policy. The

Policy is a unique, and often controver-sial, tool used by the EPA to bring fa-cilities into compliance. It provides in-centives for entities that voluntarily dis-cover, promptly disclose and expedi-tiously correct noncompliance, makingformal investigations and enforcementactions unnecessary. Using a set ofguidelines, the EPA then assesses theamount of damage to be paid by the vio-lators. This assessment usually in-cludes a total waiver of “gravity” dam-ages leaving the polluter to pay onlyeconomic benefit. I also spent a por-tion of my time on Supplemental Envi-ronmental Projects (SEP) decisions. ASEP is an environmental project that aviolator voluntarily agrees to performas part of the settlement of an enforce-ment action. Another controversialtradeoff. I learned a lot. I’d do it again.”

Leslie Keig, 3L, Environmental Enforce-ment Division, CA Office of the Attor-ney General, Sacramento, CA

“I was involved in three separatecases: two involving hazardous wastefacilities operating outside the boundsof their permits, and the third involvingliability for a hazardous waste sitecleanup. I researched hearsay admissi-bility rules in an administrative hearing;equitable estoppel as a viable defensein a CERCLA action; theories of admis-sibility of prior bad acts in a CaliforniaState court; elements of a public nui-sance claim under California law;grounds for the State to collectattorney’s fees when it prevails in anappeal. I also prepared interrogatories,attended an administrative hearing,heard arguments in the California Su-preme Court, and participated in a me-diation. There is a great deal of satis-faction in knowing that you are work-ing with the state behind you. The cli-ent is the people of California. The en-vironmental injuries are real. It was ajob I felt good about doing.”

Summer Clerkships: When It All Comes to Life


Law Clinic Continued from page 2

plified in March 2002, when the Louisiana Legislative Audi-tor issued an independent report concluding that “LDEQenforcement” and “LDEQ’s permitting activities . . . may notensure that the state’s health and environmental resourcesare protected” (report available at http://www.lla.state.la.us/perform htm.).

Various citizen groups, represented by the clinic, are at-tempting to fill the gap. For example, the Concerned Citizensof New Sarpy have launched a major Clean Air Act enforce-ment action against Orion Refining Corp., located in St.Charles Parish. Clinic student attorneys Christopher Ott andRobert Sidman based allegations in the Concerned Citizens’complaint on Orion’s admissions found in LDEQ’s files, butupon which LDEQ had failed to act. A group of ColumbiaLaw School students - who came to work in the clinic duringtheir spring break - quickly identified a number of Clean Wa-ter Act violations upon which LDEQ had taken no action.

The Louisiana Environmental Action Network (LEAN)and other groups are pushing EPA to withdraw its authoriza-tion for Louisiana to administer the federal clean air and wa-ter act programs, based on specific illegalities that the clinic’sstudent attorneys cited in a petition for withdrawal of thewater program and in administrative comments on deficien-cies in Louisiana’s air quality program. On behalf of LEAN,the clinic’s student attorneys have petitioned EPA to over-turn five LDEQ-issued permits. On behalf of LEAN and oth-ers, the clinic has challenged other permits in state court.

The Oakville Community Action Group brought a citizenenforcement case in April 2002 - represented by student at-torney Zahirah Washington - after LDEQ and EPA ignoredthe group’s formal notices of illegal operations at a solidwaste landfill. Also in April, on behalf of a local musician,student attorney James Johnston obtained a state court or-der vacating LDEQ’s issuance of a water quality certificationthat would have allowed dredging and disposal of mercurycontaminated sediments in and around Little Lake, at themouth of the East Pearl River in St. Tammany Parish. Theseand other cases on Clinic’s docket are summarized at http://www.tulane.edu/~telc/Docket html.

The clinic’s representation of individuals and commu-nity organizations whose voices would otherwise go unheardin the legal process has been a subject of continuing contro-versy. What often goes unsaid when the clinic’s role is dis-cussed, however, is that even aside from its role in trainingcompetent and ethical young attorneys, the clinic performsan important service for the Louisiana bar as a whole.

The bar is responsible for ensuring that competent le-gal services are available for all persons, including thoseunable to pay for services and those whose causes are con-troversial. But as a practical matter, few law firms offer signifi-cant pro bono services on environmental issues. This is be-cause environmental cases tend to have broad ramificationsthat could compromise a firm’s potentially lucrative relation-ships with business clients.

Because the clinic offers competent environmental as-sistance to indigent clients, it takes some of the pressure offthe rest of the Louisiana bar to see to it that an inability topay does not deny people the opportunity to enforce theirrights under environmental laws and the Louisiana Constitu-tion. After all, legal rights are not worth the paper they arewritten on if they cannot be enforced. And few if any of uswould wish to envision a Louisiana where only the wealthyhad the right to a healthful environment, which the LouisianaConstitution provides for us all.

– Adam Babich, Clinic Director

TLS Dean Lawrence Ponoroff (from left) with LisaLavie Jordan, Clinic director Adam Babich, Pat

Melancon and Lifetime’s Mary Dixon

Tulane Environmental Law Alumni: The Beat Goes OnTulane environmental law alumni have diverse practices across the country ... putting environmental law to work.

Justin Bloom 1996 – Riverkeeper, New York City, NYThe Hudson Riverkeeper is the nation’s first and most famous water watchdog, and a model for riverkeepers around the

country. As staff attorney at Riverkeeper, Justin works on any and all problems that affect the Hudson River and New YorkCity’s drinking water supply. The majority of his cases involve citizen suit litigation under the Clean Water Act, SEQRA (NewYork NEPA), and support for restoration/redevelopment and public access projects on the Hudson. He loves his job.

Matt Mathews (1993) – McGuire Woods, Richmond, VAMatt is keeping busy with a wide array of environmental litigation. He has been involved in the numerous cases with the

Riverkeeper Alliance/RFK, Jr. and a group of national trial lawyers v. Smithfield Foods and its subsidiaries. He writes, “I neverimagined while struggling through...criminal law and environmental law classes [at Tulane] that the two would meet togetherin my career a decade later.” Continued next page


Deborah Clarke Trejo, 1998 – Kemp & Smith, Austin, TX

Deborah is an associate in the environmental, adminis-trative and public law section of her firm. Her primary clientis the Edwards Aquifer Authority, a groundwater conserva-tion district managing the unique natural resources of theEdwards Aquifer for many communities in South CentralTexas. Several federally-listed threatened and endangeredspecies depend upon the Aquifer, which has inspired somecelebrated Endangered Species Act litigation. Deborah isinvolved in the rulemaking process of the Authority, pros-ecuting enforcement cases in district court for violations ofthe Authority’s rules, and defending the agency from law-suits.

Greg Young, 2001 - Bass, Berry & Sims, Nashville, TN

Greg’s firm represents clients on air and water pollution,hazardous and solid waste, toxic materials, underground stor-age tanks, Superfund, right-to-know laws and NEPA. Oneclient was the only county seat in Tennessee without a waste-water treatment plant. Many of the public facilities (nursinghome, school, jail) had failing septic systems; raw sewagewas seeping into yards and basements. After the firm ob-tained the proper permits for a new treatment facility, severalgroups challenged the proposed discharge point for the planton the basis that it would degrade the receiving stream, ir-reparably harming a newly-discovered cave ecosystem. Thefirm won on the administrative level, but a state court judgeissued a stay and ordered a settlement conference. The con-ference yielded an agreement with the challenging groups tore-locate the discharge to a larger and less-sensitive body ofwater. A win-win, in the real world.

Douglas Frankenthaler 1999 – Montgomery,McCracken, Walker & Rhoads, Philadelphia, PA

Following a stint with Region III of the United StatesEnvironmental Protection Agency, Doug now practices en-vironmental law in Philadelphia representing a wide array ofclients. In addition to advising regulated industry on permitsand compliance, he represents a citizen group opposing ex-pansion of local rural road into a major expressway, fosteringsprawl and the conversion of the area from farmland to stripmall: NEPA writ large. He also represents a state agencytrying to get former service station operators to remediatecontamination, and a local township trying to preserve openspace in the face of a constitutional (takings) challenge.

Lisa K. Rushton, 1994 – Paul Hastings Janofsky & Walker,Washington, DC

Lisa’s practice involves regulatory counseling on pollu-tion and toxics issues. She also represents businesses en-gaged in acquisitions and divestitures of real property. Sheoversees the investigation of site conditions, helps quantifypotential risk, and drafts and negotiates contract terms relat-ing to contaminated properties. Her Superfund work includes

consent decree, settlement negotiations, third-party claims;and service on PRP committees - a law school exam on haz-ardous wastes.

Punam Parikh, 2001, Research Associate, National RiskManagement Research Laboratory, U.S.EPA, Cinncinnati, OH

Punam writes: “I started working this week (September,2002) and already I have a ton to do. My first project isworking on a legal framework for a potential tradable creditssystem for storm water. Not sure if this is possible, but that’swhy I’m here.”

Felipe Leiva, LLM 2002, private practice, Santiago, Chile

Felipe writes: “I’m working for an UNEP project called“Development of a National Implementation Plan on Man-agement of Persistent Organics Pollutants.” The frameworkof this project is the Stockholm Convention and my workinvolves coordinating the different stakeholders on POPSand proposing to the Chilean Government a plan for manage-ment of such toxic substances (PCB’s, Pesticides, Dioxins,etc). The project is already interesting, and I’m excited.”

Ashley Wadick, (1991) TX General Land Office, Austin, TX

Ashley writes: “Part of my work involves Gulf beaches.Texas’ “Open Beaches Act” (OBA) was enacted in 1959 tocodify the common law rights of the public to use and haveaccess to Gulf beaches used since “time immemorial” by thepublic and as public roads for pleasure and commerce (mer-chants, mail carriers, etc.). The easement is a “rolling” ease-ment; it rolls with the shoreline. No one focuses on it much inan accreting or undeveloped area or along fed/state/localgovernment property. It is most contentious in highly devel-oped areas landward of highly eroding beaches. In thoseareas, when the easement rolls landward, private structurescan end up on the public beach. The OBA prohibits a privateperson from erecting, maintaining or repairing a structure onthe Gulf beach, even though the structure may have origi-nally been built far landward of the beach. Texas has beensued for takings (won each time) and is in litigation nowregarding properties in Brazoria and Galveston counties.

Courtney O’Hara Taylor , 2000 – Solicitor’s Office, Parks andWildlife Division, Washington, D.C.

Courtney just recently left private firm life for the U.S.Department of Interior, where she is getting back to her pas-sion -- wetlands and endangered species. Her work there willprimarily focus on the Florida Everglades and implementingthe Comprehensive Everglades Restoration Plan.

Trilby Dorn, 1997 – Tousley, Brain and Stephens, PLLC,Seattle, WA

Trilby writes: “Things are great for me – still getting todo salmon restoration work in the North Cascades, in addi-tion to complex litigation (mostly plaintiff’s class actions.My fiancee, Michael Robinson, is head of the environmentaldivision of the Seattle City Attorney’s Office.”

Tulane Alumni Continued from previous page


ELS Horn Island Trip Memoirs

The prodigal son has returned. John Suttles joined the staff of the Tulane Environmen-tal Law Clinic as its Deputy Director in August of 2002. Suttles graduated from Tulane LawSchool with a JD in 1988, an LLM in Environmental Law in 2002, and a mound of debt. To payit down, he went into private practice, soon reaching the level of firm partner and specializingin asbestos litigation. He made money. He got used to the high life. Interviewed for thisarticle, he commented: “The worst curse is to get everything you wanted” – because thenyou are tied to it.

John then broke with private practice and opted for life in the lower-paid lane, publicinterest law. He brings attitude and energy to the clinic. He has rediscovered the optimismof his student days. He says, “public interest lawyers tend to be better-trained lawyersbecause they simply haven’t got the support staff of a large firm – the attorney has a betterhandle on the litigation process.” He encourages students to really enjoy the learningprocess and make the most of it. – John Wayne Pint, 2L

Return of the Prodigal: John Suttles Becomes Clinic Deputy Director

John Suttles back on hometurf in the TLS courtyard.

The schooner Glenn L. Swetman

“The first poetry was written by sail-ors who sang with the wind in theirteeth….” - Walter Anderson

Explorer and artist Walter Ander-son is best remembered for his love ofHorn Island, and is primarily respon-sible for the preservation of Horn andits sister barrier islands as part of theNational Park Service. - Ed.

From Texas to Florida, along the Gulfof Mexico, a string of barrier islands pro-tects inland areas from storms and pro-vides refuge for wildlife. Each spring,migratory birds come to these islandsby the thousands after the long Gulfcrossing. One weekend last April, thewildlife included some 30 Tulane lawstudents who camped on Horn Island,off the coast of Mississippi.

Finding the way out to Horn Island,15 miles off the coast of the casino townof Biloxi, Mississippi isn’t easy, but itcan be half the fun. The Tulane Envi-ronmental Law Society chartered a 48-foot schooner, the “Glenn L. Swetman,”

for the 2-hour trip. Breaking out a fewcans of beer and lots of suntan lotion,the crew left the neon sprawl of the Mis-

sissippi coast for Biloxi Bay. Most ELStrips require students to provide thehorsepower: paddling, pedaling, or hik-ing. This time the future lawyers satback and let our ship’s Captain Carollrun the show.

Horn Island’s his-tory belies its smallsize. Now part of theGulf Islands NationalSeashore and a popu-lar destination forkayakers and fisher-man, the island hasseen it all: from a smallfarming community inthe 1800s, to chemicalwarfare laboratory dur-ing the Second World War, to outpostfor Mississippi artist and legend, WaltAnderson. Rowing out to the island ina dory, alone, Anderson made the is-land his home for long stretches of time,once riding out a hurricane under hisoverturned boat. On the island he would

pass weeks painting andwriting in isolation.

Rather than campwith a view of the Biloxiskyline, we braved a half-mile trudge across softsand to the quieter Gulfside. There we foundclear water and a wide,white beach, not another

person in sight, and just enough breezeto keep the mosquitoes at bay. Dinnerwas a communal meal of red beans and

rice. Then a few drinks, a few songs,and we retired to our tents, leaving afew souls up next to the fire and swap-ping stories until dawn.

Breakfast on an ELS outing is notfor the faint-hearted. For those who are

non-vegetarian, “grease biscuits” (pat.pending) are the breakfast of choice –(1) fry up all the sausage (2) removesausage to a dog-free environment, (3)split English muffins, place face downin the grease and bring to a rolling boil,then (4) remove muffins and insert thesausage as a sandwich. Yield: Enoughenergy to power an ocean-going tanker.Louisiana Pemican, say its defenders.

The trip home came too soon. Formany of the graduating seniors – includ-ing me – the weekend away took on aspecial importance as our last time to-gether. Whether an overnight canoepaddle, a swamp trip, or those infamousall-day bike-a-thons, the TELS tripsbrought us together. We went, survived,laughed, and left as friends.

– James Johnston ‘02

Quest for Fire

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THE FOUR PILLARS:

TULANE’S ENVIRONMENTAL LAW PROGRAMThe Tulane Environmental Law Program is one of the largestand most diverse in the United States. Each year Tulanegraduates more than forty Juris Doctor and fifteen Masterscandidates with specialties in environmental law. Whatdistinguishes Tulane’s program, in addition to the experienceof its faculty, is the scholarship of its journal, the strength ofits clinic, the international projects of its institute, and themomentum provided by its students. These four components

of Tulane’s program—in the extraordinary setting of NewOrleans, the Lower Mississippi River, and the Gulf Coast—provide a unique academic experience for those with aninterest in environmental law and international sustainabledevelopmental policy. For more information, contact theLaw School’s admissions office at John Giffen WeinmannHall, Tulane University, 6329 Freret Street. (504) 862-5930, orits web site at http:\\www.law.tulane.edu.

How would you answer this one? At the close of an examination last year in Natural Resources Law,without prologue or further explanation, appeared the following question:

“The Desert Speaks” by Jorge Luis BorgesThere is a time towards evening when the desert seems to speak, but we cannot hear it.

Or perhaps we can hear it, but we cannot understand what it has to say.Or perhaps we can understand it, but what it has to say is as untranslatable as music.

Question: What does this poem have to do with Natural Resources Law?

Dear Reader:We are still searching for the answer. Professor Houck swears that, while he received several “good” responses, nonewere (in his words) “magnificent.” If you think you have an answer for us, please e-mail it to this Newsletter [email protected]. Magnificent answers will be printed in the next issue of this newsletter. Ed.

The Impossible Exam Question

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