Louisiana Considers Bill to Restrict Lawsuits

Just as Louisiana politicians are about to get an up-close-and-personal look at the BP oil spill (it is approaching the shores an hour's drive from Baton Rouge, the state capital), they are considering a bill to "kneecap" all university environmental-law clinics in the state, which have led the way in challenging the historically cozy relationship between state politicians and the petrochemical industry.

Senate Bill 549 would prohibit clinics that receive any government funding from suing state agencies, companies, or individuals for failing to comply with state or federal laws or for damages (unless the legislature granted an exemption). So "while the Gulf churns with oil and the state mourns the deaths of 11 oil rig workers, the Louisiana legislature is being asked to serve up a favor to the state's petrochemical industry," leaders of the Clinical Legal Education Association (the country's largest association of law teachers) warn in a letter obtained by NEWSWEEK and hand-delivered this morning to Sen. Ann Duplessis, chair of the committee that will hold hearings on the bill next week, May 19. A denial of state funding to a university would essentially cripple it, leaving a school no choice but to close or severely curtail its environmental-law clinic.

Although the bill would apply to clinics doing work in civil litigation, domestic violence, and juvenile law, says CLEA president Robert Kuehn of Washington University School of Law, "the target is clearly environmental-law clinics, especially Tulane's." Indeed, the Louisiana Chemical Association, the trade group of chemical (including petrochemical) companies which got a favored senator to introduce the bill, was quoted in The New York Times last month saying that if law clinics "want to play hardball by trying to kneecap industry," then "we should play hardball and kneecap them with their state appropriations."

What has law professors across the country up in arms is not that the bill would hamper those who have suffered from the Deepwater Horizon blowout (still gushing out of control) from suing for damages. There are so many private attorneys handing out their business cards to shrimpers and fishermen and boaters along the gulf that the cards alone could almost sop up the crude. The real threat is that the bill would prohibit university legal clinics from challenging any future permits the state issues to oil, chemical, or other companies that seem to be flouting good environmental practices, Tulane University law professor Oliver Houck, who founded the university's environmental-law clinic in the late 1980s, told me. "If an oil rig is in state waters—within three miles of the shore—we couldn't challenge any permits issued by the state over issues such as environmental impact, or compliance with clean air and water laws," says Houck, a former federal prosecutor. "There is no public interest law firm in the state, so either the clinic brings these lawsuits or nobody does."

The Tulane environmental-law clinic has been a thorn in the side of the petrochemicals industry since its founding in the late 1980s. As detailed on its Web site, the clinic has suits pending alleging violations of the Clean Water Act by sewage-treatment plants in Baton Rouge; challenging the decision of the state Department of Environmental Quality to issue permits allowing companies to bury oil and gas exploration and production waste in landfills; and challenging the decision of the state Department of Natural Resources to issue a permit to drill an injection well for disposal of oil and gas production waste in Vermillion Parish without analyzing the well's environmental impact on neighboring farms and homes. Back in 1998, it challenged the state's decision to issue a permit for a nonhazardous oilfield waste treatment, storage, and disposal facility near Gibson (the clinic won) and also challenged the Louisiana Board of Commerce and Industry's grant of a tax exemption to a company for a hazardous waste incinerator facility in East Baton Rouge Parish (the clinic won this one, too).

In its letter, the Clinical Legal Education Association warns that in addition to kowtowing to big business, the Louisiana bill threatens to undermine legal education by failing to provide law students with the hands-on work that the American Bar Association requires accredited schools to provide. The Louisiana Supreme Court's oath for lawyers, in fact, requires that they "never reject, from any consideration personal to myself, the cause of the defenseless or oppressed." As a result, the CLEA letter points out, "when Louisiana residents found themselves homeless after Hurricane Katrina and unable to afford private attorneys, they turned to the state's law clinics and were provided free legal assistance. When the elderly are victimized by unscrupulous contractors or salespersons, the state's law clinics are available to lend a free hand." But maybe not for much longer.