The Rule of Law
Environmental Lawyers are at work in 2018 to exercise and strengthen the laws that protect earth.
A countryman between two lawyers
is like a fish between two cats.
I’ve heard a lot of lawyer jokes.
I’ve read some history and enjoyed conversation with friends and family who practice law, and I know that practicing law can be a lucrative profession, that it takes extra school and a lot of study to learn how to handle and explain the structure of laws that surround us as modern citizens, and I know that the history of law is intertwined with the possibility of individual human freedom.
“To live outside the law you must be honest.” And when you get in trouble with the Law there is often a heavy price to pay.
I have thought a lot about this, Law, through the years. My husband has often told me I should have studied law, and sometimes I think he is right, because I enjoy the logic in a good legal argument.
Q: Why won’t sharks attack lawyers?
A: Professional courtesy.
Despite our cultural portrayal of the lawyer as a predator of the common folk, we depend on the framework that Law gives to all interactions. I capitalize “Law” to give nod to the concept that there is a righteousness penetrating all we do that is greater than any one of us. We could expand all the way to the edge of the universe and still find ourselves looking for the natural laws that inform all of life and all of everything we know and don’t know.
Laws of growth certainly command in the garden, social laws inform our human life, and governmental laws rule the political lives of everyone on earth, but not equally, as we know, because a person without money cannot afford a good lawyer, and in some places laws protect only a portion of the population, by law.
Locks up the man or woman
Who steals the goose
From off the common
But leaves the greater villain loose
Who steals the common
From the goose.
In the history of the western world, the struggles of the “goose” accompany the development of common law into statutory law, the official rules of conduct defined in our legal system ostensibly defined by Justice. In the modern United States of America we like to say that everyone is equal under the law, and the fact that people are saying that a lot these days suggests that there may be some truth there, although we are getting nervous.
It is a fragile truth, if truth it be.
Merriam Webster dictionary defines the Rule of Law to be a situation in which the laws of a country are obeyed by everyone: The courts uphold the rule of law.
No matter who you are, there is always the possibility that with a good lawyer your rights can prevail. And no matter who you are, with the right lawyer against you, you will pay a price for breaking the law, as long as we continue to operate following the rules legally defined by our government.
So I watch political news from Washington, D.C. and courts around the country stream in, and I find myself placing a lot of hope in the rule of law.
Thieves in high places have the spotlight, lawyers are busy on all sides, and we see lawyers challenging the outrageous greed of thugs who apparently want to rape and pillage to the ends of the earth and leave the rest of us coughing in the dust.
Chuck Rosenberg, former official in the U.S. Justice Department, appears on MSNBC as a legal analyst, and recently, in his softspoken way, observed that so far the Article Three courts are working as they should.
He was speaking of Article Three of the United States Constitution, the part of the Constitution that set up the federal court system to stand in balance between the legislative and executive branches of government.
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
In the United States, the federal court system has three main levels. When a case is tried in the federal system, the first act is played in the trial court. If the case warrants a second act, lawyers can appeal a trial court verdict on the next level, the circuit court. The final level of appeal in the federal system is the supreme court. There are rules about who can and who cannot appeal a verdict.
The first Congress established district courts to be the federal system general trial courts, where both civil and criminal cases are heard, and it is in those courts now that we are watching corruption and environmental pollution cases that are challenging the Trump administration’s attempt to wield inordinate power and destroy the political balance proscribed in our Constitution.
Lawyers are busy.
I was born in Chicago, but didn’t stay in the city long. When I was a baby in the 1950’s my family moved out to a suburb. I could experience the sights, noises and smells of a working city- cement, tall buildings, people, bus exhaust, car exhaust, factories, trains, when I wanted, and then go home to suburban life. We lived not far from the tracks; I could hear the trains, but I didn’t smell them. We had gardens, large grassy lots, and trees enough to handle the exhaust. The air was sweet, usually.
But we certainly had a lot of waking up to do. My mother and I would sit on the front stoop, escaping the heat of the house on summer evenings, slapping mosquitoes, listening for the sound of the village fogging truck that came around to kill those pesky biters. The next step escapes my memory. Did we rush into the house and close the doors against the insecticide, or was even my mother, an artist and gardener, trusting in the government, operating with belief in the safety assurances of chemicals companies?
But the poison sprays were not the only environmental degradation we humans were performing on the earth. Mosquito fogging was not my only childhood chemical pollutant memory.
Sometimes my family left our home community by car, and our journeys took us out around Chicago through other towns more immediately impacted by factories whose smokestacks emitted clouds of steam and smoke and chemicals, colorful and powerful, thick, grey and pink steam and smoke intermingling in choking air. I tried to hold my breath, but the industrial areas were too big. I couldn’t get through without taking a breath, and I instinctively knew that the breath I took should not be deep; it was not life refreshing. For many people, air pollution was an ever-present fact of life.
It wasn’t until 1962, with Rachel Carson’s book Silent Spring, that the full impact of human chemical folly began to sink in. Rachel Carson was a scientist and writer who worked for the U.S. Fish and Wildlife Service, resigning in the early fifties to devote her time to writing. She published books celebrating nature and examining the human role in our ecology. The silence of the spring she foretold was a silence of nature dying from the ground up, and for many people the threat of silence demanded action to protect the natural world from the attack of modern science.
Rachel Carson’s heart awareness, paired with her keen scientific intelligence, allowed her to see and understand evidence of human caused changes in the natural world. These changes became toxic at the end of World War II with domestic application of poisonous chemicals that had been developed in the war effort. Aimed no longer at enemy armies but now at nature, at home, synthetic chemical pesticides posed a significant threat, and Rachel Carson changed her professional focus to write a warning, to warn the public that misuse of chemicals brought long-term ill effects to the natural world, of which we are a part.
Silent Spring, published by Houghton Mifflin and serialized in the New Yorker magazine, evoked opposition from people who were not so glad to see promotion of evidence that chemical applications can be harmful. The chemical industry opposed the publication of the book. Velsicol Chemical Company, the only manufacturer of chlordane and heptachlor, threatened legal action against Houghton Mifflin, The New Yorker, and Audubon Magazine unless they canceled promotion of Silent Spring, and DuPont, a major manufacturer of DDT and 2,4-D, mounted rebuttal with media releases.
But the publication of Rachel Carson’s book went forward.
Under the Sea-Wind (1941), The Sea Around Us (1952) and The Edge of the Sea (1955) celebrated the wonder of life and brought Rachel Carson fame as a naturalist. Silent Spring (1962) expanded her fame and started a conversation that grew into a world wide movement of social and political action. Rachel Carson called for a change in the way humankind viewed the natural world, and people were ready to hear her. The folly of poisoning the environment became an issue in the public forum.
In 1965 the Gallup polling organization had run their first poll about the environment.
The environmental movement had begun.
By my college days in the late sixties, growing awareness that we needed to pay attention to our living environment brought new questions to academics. Environmental Studies courses started showing up in educational institutions, courses in environmental law were added to law school study, and by the late 1960’s environmentalists were emerging from colleges educated and with a mission to promote the well being of the earth and her people.
Spurred to action by a massive oil spill in Santa Barbara, California in 1969, Gaylord Nelson, a senator from Wisconsin, worked with Pete McCloskey, a congressman from California, to organize and launch the first deliberately organized national celebration in honor of the earth. On the first Earth Day, on April 22, 1970, 20 million Americans took to the streets with signs and banners promoting environmental awareness.
Earth Day is now a recognized day on our national calendar, and in 1990 a reported 200 million participants mobilized in 140 countries,
In July, 1970, just months after Earth Day, President Richard Nixon proposed a consolidation of existing environmental laws under the broad umbrella of a new agency, the Environmental Protection Agency, the EPA.
Congress approved the proposal, and the new agency was created, taking on some of the functions of the Department of Health, Education and Welfare, the Federal Water Quality Administration, the Department of the Interior, the Bureau of Sport Fisheries and Wildlife, the National Air Pollution Control Administration, the Environmental Control Administration, the Food and Drug Administration, the Council on Environmental Quality, the Atomic Energy Commission, and the Department of Agriculture.
One might look at the number of existing legal federal responsibilities suddenly changing hands and know that political dialog and argument would follow the new agency. Questions of funding, power, and responsibility for environmental protection arose then and continue as a topic of national discourse to this day, at the federal, state and local levels. In 2018, we see the federal administration in power attempting to undermine federal environmental protection as much as possible, if not altogether. And we also see environmental lawyers working in opposition to those attempts.
The Huffington Post in February 2017 reported Pete McCloskey’s dismay at the changes being wrought by the current President and Congress.
Reporter Michael McLaughlin wrote, “While many federal agencies would get trimmed under Trump’s budget proposal, there would be spending increases for defense, homeland security, transportation and veterans affairs.”
“’It’s a disaster,’” McLaughlin quoted Pete McCloskey, “’and it’s going to set aside what we’ve accomplished since the first Earth Day.’”
In 1970, the year of the first Earth Day and the year of the founding of the EPA, five men associated with the Yale Law School founded The Natural Resources Defense Council (NRDC). John Adams, Richard Ayres, John Bryson, Edward Strohbehn, and Gus Speth organized as a non-profit in New York and announced a mission of environmental activism. Pioneers of the environmental work of the 1970’s, they helped write foundation laws in America’s environmental movement, and the NRDC has continued since then to focus on environmental issues. Today the organization reports membership world wide of more than three million members, in close association with 500 scientists, lawyers and policy advocates.
Since 1970, the environmental movement has grown from the grassroots, responding to local issues, all the way to umbrella organizations such as the US PIRG (Public Interest Research Group) overseeing the work of environmental protection worldwide.
In 1976, two environmental law professors at the University of Oregon, Mike Axline and John Bonine added a clinical program to the school’s curriculum, offering law students experience dealing with legal issues with real clients. After some years, the program left the university and became the Western Environmental law center, a non-profit agency with offices in Oregon, Washington, New Mexico and Montana.
In 1980, the Northern Michigan Environmental Action Council organized to work with issues in northwest Michigan.
In 1990 The National Environmental Law Center (NELC) litigation center was founded with offices in Boston and Seattle.
Using the Power of the Law to Defend and Protect the People and the Natural Resources of the United States
This theme appears in the mission statements of many of these regional organizations of activists and lawyers, and the theme is resounding in more and more law offices and more and more courtrooms around the United States. So far, we heard, the Title Three courts are working.
We moved to Charlottesville, Virginia about three years ago, and though we were working long hours, traveling from home to school to home, we had not been in Virginia long before news from the Southern Environmental Law Center (SELC) caught my eye.
The news was about environmental actions based on legal issues, and it looked as though the people in that organization were doing good work. I added my name to the SELC mailing list.
I was grateful to learn that people were successfully challenging environmental degradation in this beautiful and vulnerable region of North America, and I was always heartened by the headlines: Duke Energy Coal Ash Pollution Violates Clean Water Act, UK’s Coal Phase- Out and How That Could Affect Southern Forests, SELC Challenges Alabama Power’s Unjust Fees Targeting Rooftop Solar Customers. I was learning a lot about the region, new to me, and about the issues that were keeping SELC environmental lawyers busy.
The Southern Environmental Law Center has offices in six states and in Washington, D.C. and employs 80 lawyers and a support team of 140 to manage and fund the non-profit organization. There are two offices in Charlottesville, and the administrative headquarters are behind a quiet dark door on the city’s downtown mall.
Operating on the downtown mall since the law center’s inception in 1986, SELC’s founder Frederick (Rick) Middleton III chose this quiet and yet cosmopolitan city to be the homeplace of a legal center designed to serve the southeast region. A native of Birmingham, Alabama, Middleton organized a team to oversee and protect a wide range of environmental issues in the southeast, a region that includes close to a dozen large tracts of public land including the largest wilderness area east of the Mississippi River. The region is also home to historic and ongoing activity of the fossil fuel industry.
Middleton had attended college in Charlottesville, completing his undergraduate studies at the University of Virginia in the late 1960’s. A charming small town (pop. About 50,000) steeped in early American history, Charlottesville sits at the foot of the Appalachian Mountains and is within range of Washington, D.C.
Middleton went from college in Charlottesville to Yale Law School, at Yale University in New Haven, Connecticut. He graduated in 1971, one of the first environmental lawyers in the U.S., and he worked briefly at a law firm in Atlanta, Georgia, about 150 miles east of his home town of Birmingham.
Birmingham, Alabama was founded in 1871 as a business venture by the Elyton Land Company, in an area rich in industrial resources. Those resources included a potential cheap work force in a population still in flux after a major exodus from farms and small towns following the Civil War. In a region rich in coal, iron ore, and limestone, three materials necessary for the production of steel, the site of the new city was soon to be the intersection of north/south and east/west rail lines. Birmingham seemed a promising venture for the cotton planters, bankers and railroad entrepreneurs who were investing in the project.
They were successful. With mines, mills and workers, Birmingham emerged as a steel town. In 1901, Birmingham mining and steel industrialists amalgamated operations to spawn U.S. Steel, which is now headquartered in Pittsburgh, Pennsylvania. Though Birmingham was not ultimately able to compete with northern industrial cities, the story of its people and the quality of its air both developed in the wake of the steel industry. Sometimes called the “Pittsburg of the South,” Birmingham had other nicknames as well.
In the 1960’s truckers were calling Birmingham “Smoke City.”
And in the ‘50s and ‘60s, the Ku Klux Klan had an active presence in Birmingham. Klan members’ racially motivated bombings earned the city the nickname “Bombingham.”
In 1970, a 1964 University of Alabama School of Law graduate named Bill Baxley was elected Attorney General of Alabama, and he began working to counter the city’s negative nicknames, taking up race, corruption and environmental issues at the same time that Rick Middleton was in Atlanta, recently graduated from Yale.
The time was right for these environmental lawyers. The recently enacted federal environmental protection laws provided a framework for action, Birmingham air was so thick that everyone knew there was a problem, and grass roots organizations had begun environmental activism.
Early in his tenure, Baxley established an environmental division in the state’s Attorney General office, and he recruited a team of energetic and talented lawyers. During his two terms in office Baxley aggressively prosecuted industrial polluters, strip miners and corrupt officials. He successfully prosecuted Ku Klux Klansman Robert Chambliss for the 1963 bombing of Birmingham’s Sixteenth Baptist Church, and he appointed Myron Thompson to be assistant attorney general, first African American to hold that position in Alabama. And he began to pressure the steel industry to take measures to clear the air.
In 1974 Rick Middleton returned to Birmingham and started working for Bill Baxley and was involved in the famous Alabama state action to compel U.S. Steel to clean up its furnaces in the state by a 1975 deadline in the federal Clean Air Act.
Middleton left Birmingham in 1979 to join the Washington office of the Sierra Club Legal Defense Fund (now Earthjustice).
After fifteen years of work in environmental law in the region, Rick Middleton saw the southern United States calling for an environmental champion with a view across state lines. In 1986, the Southern Environmental Law Center began its work, serving Virginia, Tennessee, North Carolina, South Carolina, Alabama and Georgia.
The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Until they go and take it back.
Now, with more than thirty years of successful litigation behind him, Middleton has announced that he will retire at the end of March and plans to pass the torch of leadership of the Southern Environmental Law Center to Jeff Gleason, a former deputy director and director of regional programs for SELC.
Considered the regional leader in environmental protection and conservation in the Southeast, the Southern Environmental Law Center continues its work in the field and in the courts, and the headlines keep coming.