Motion DENIED - Louisiana retaliates against Tulane Law school environmental law clinic

Progressive, The, March, 1999 by Frank Wu

Louisiana retaliates against Tulane law students

Richard Exnicios was a student at Tulane Law School. Wanting some hands-on experience, he enrolled in an environmental law clinic. Soon he and other students at the clinic were given an interesting case. They represented residents of Convent--a town of 2,676 people, 80 percent of whom are African American, and 40 percent of whom live below the poverty line. These residents organized their community to oppose a plan by the Shintech Corporation to construct the world's largest polyvinyl chloride plant near their homes.

Encouraged by tax breaks from the state of Louisiana, Shintech hoped to build a $700 million facility on 3,700 acres near Convent. It was expected to produce 6.8 million gallons of waste water daily and release 600,000 pounds of toxic emissions annually. The Shintech operation would have joined another dozen facilities in the area known as "Cancer Alley."

"Once I went out there to Convent, met a client, her kids, her grandkids, I realized they're fighting for their lives, and we're these people's last resort," recalls Exnicios. With that sense of responsibility, Exnicios and his colleagues dedicated themselves to their work. They skipped Mardi Gras to prepare a 2,000-page response to a motion from the company.

"To me," Exnicios said, "that was the best education. I learned more than I did from two years of classes."

The Tulane students were able to forestall the project and persuade the Environmental Protection Agency to override a state decision favoring Shintech. As a result, the company announced last September that it would reduce the size of the plant, move it twenty-five miles upriver, and place better controls on its emissions.

"We're only doing what any good law firm would do," says Tulane professor Robert Kuehn, who directed the clinic.

But even before the Tulane students had prevailed, they drew the wrath of Governor Mike Foster.

Speaking to the New Orleans Business Council in the spring of 1997, Foster declared that the clinic students had "gone too far." He described them as "a bunch of modern-day vigilantes who are just making up reasons to run businesses out of the state." Foster appeared on local television and called the law school faculty "a bunch of big fat professors drawing big paychecks to run people out of Louisiana." During the TV program, Foster said the clinic clients ought to "use their own money" to hire legal counsel. He said he would call for an investigation of the nonprofit status of Tulane University. (His spokesperson subsequently retracted the threat.) He also said that he would contact alumni of the private school "to do what they can to put a stop to this" by withholding donations.

Later, Foster demurred on contacting alumni: "Sometimes it just takes a little colorful language to get your point across," he said.

Prompted by complaints from the governor and three chambers of commerce, the Louisiana Supreme Court conducted inspections of law school clinic programs, focusing on the Tulane environmental law program.

Using its power to license attorneys, the court announced a new rule forbidding law students from helping to create community organizations and from representing organizations with affiliations to national groups.

Members of represented groups are now obliged to divulge their finances, and a majority of the individuals in a group must have incomes lower than $20,563 for a family of four.

Under the amended rule from the supreme court, the Tulane clinic would be prevented from taking many of its former clients. On its docket recently have been cases for the Audubon Society and the Vietnamese-American Voters Association and legal assistance for a community group that was seeking historic status for an African-American public square.

Other than bias against particular clients and activist students, there appears to be no rationale for the court's actions.

"The only people who are going to let students handle their cases are people who can't afford a lawyer," says Exnicios, now a New Orleans district attorney.

As it happens, the annual conference of the American Association of Law Schools was held in New Orleans this January. About 200 law professors used the occasion to march to the state supreme court to protest its rule changes.

Governor Foster encouraged the professors to visit the French Quarter rather than demonstrate. Instead, they filed a petition signed by 900 teachers from more than eighty schools asking the court to reverse itself.

"The question is, do people believe in justice and equality?" said law professor Peter Joy of Washington University. "If you believe in justice and equality, then you have to believe people have a right to go to court. Poor people, working people, and people on fixed incomes need lawyers who won't charge for their legal fees. The supreme court has said to the truck driver or the waitress who has a legal problem that if law professors and law students want to represent them, they can't do it--because of big business."