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Maryland environmental law clinic focuses on enforcement

University program under fire for pursuing pollution case

November 24, 2011|By Timothy B. Wheeler, The Baltimore Sun

The clinic's 2010 budget, the most recent year for which information was available, was $160,000, with 12 percent covered by state funds. The remainder comes from foundation grants and donations. And while the students' and staff time is partially state supported, Barrett points out that no public money goes directly to litigation — filing fees, copying, expert testimony and other expenses must be paid by the clients, or covered by donations. The Cheverly area residents, for instance, took up a collection to cover the filing fees for their lawsuit.

Some critics, such as Del. Patrick L. McDonough, a Republican representing parts of Baltimore and Harford counties, have suggested that public university law clinics should not be allowed to sue private individuals or businesses. Others contend the clinic ought to be representing the Eastern Shore farm against the Waterkeepers, or limit its practice to indigent clients.

Law clinic directors counter that to do that would severely hamper the institutions' role in providing legal help to under-represented people and communities.

There are plenty of law school clinics around the country that represent businesses, but generally small businesses or startups that cannot afford a lawyer, said Ian Weinstein, president of the Clinical Legal Education Association and associate dean of the Fordham University law school in New York.

The University of Baltimore has a community development law clinic, for instance, that works with small businesses, said Leigh Goodmark, director of the school's nine clinics. But the clinic limits its work on behalf of businesses to drawing up incorporation papers and the like rather than representing them in lawsuits, she said.

If the state were to bar university law clinics from suing Marylanders, Goodmark said, it would curtail the work of UB's family law clinic, which includes filing for restraining orders in domestic violence cases.

Others, such as McDermott, say environmental enforcement should be left to the Maryland Department of the Environment, which found no conclusive evidence that the Shore farm was the source of high bacteria counts detected in a drainage ditch running by its chicken houses.

But Potomac Riverkeeper Ed Merrifield points out that Congress authorized citizens to go to court to enforce federal environmental laws when the government was unable or unwilling to do so.

The environmental law clinic is representing Merrifield and others in a lawsuit accusing the power company GenOn of polluting a Charles County river with coal fly ash it is dumping in a landfill there. State courts have denied their standing to sue, which the clinic is appealing to the Maryland Court of Appeals. The state Department of the Environment also has taken legal action against the landfill, but only after the citizens groups threatened to sue, Merrifield noted.

While he has been able to get free legal help at times on Potomac River matters from big Washington law firms, all too often they can't pitch in, Merrifield said, because it would conflict with the interests of their paying clients. University law clinics aren't as ethically handcuffed, he said, and "some of the best work we get is from our university law students."

Boyd, the Cheverly resident, concurs.

"It takes a certain kind of attitude and dedication, commitment and interest, concern in the community — I mean in the larger community — to do this work," she said.

A Prince George's County Circuit Court ruled against her group last year, but the environmental law clinic is appealing on its behalf to the Maryland Court of Special Appeals. Boyd says she has no regrets.

"This is not a new battle,'' she said, recalling decades of clashes with local authorities over getting stuck with dirty, unwanted facilities that other, more affluent communities could fend off. "This is the first time we've ever had the opportunity to have representation."

tim.wheeler@baltsun.com

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