PREPARATION FOR LITIGATION
One of the main requirements for being able to bring a lawsuit to stop an environmental tragedy is the requirement of standing.
Standing is nothing more than a plaintiff's position vis-a-vis the action which resulted in the lawsuit at hand. So, assuming you are contemplating suing somebody, maybe the U.S. Fish and Wildlife Service for instance, then you MUST be certain whether or not the Court will even let you jump the first hurdle: the question of whether you have proper standing or not.
The basic rule of standing is now found in a U.S. Supreme Court case called Lujan v. Defenders of Wildlife. Rather than having you look it up, I'll tell you about it here. In that case, the Court held that to have "standing," a plaintiff must have a sufficient, particular stake in the wild thing about to be destroyed. In Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992), the Court examined standing under the Endangered Species Act (ESA), but the language appears to apply to all environmental statutes. "Standing" is a legal concept that essentially means that one bringing a lawsuit must have a sufficient stake in the controversy to obtain judicial resolution of that controversy. Ever since 1972, because of the landmark ruling of Sierra Club v. Morton, 405 U.S. 727 (1972), the rule for standing in citizen suits under our environmental laws had been fairly lenient; if the plaintiff group had members who had even a merely aesthetic interest in what the government was about to destroy, then the group had standing to sue to stop that destruction. Standing now means that the group's members must prove that the action complained of will produce imminent, actual harm unique to those members. Standing of citizens near ponds and wetlands that were to be drained was upheld in Save Our Community v. EPA, 971 F.2d 1155 (5th Cir. 1992). Standing was granted for the decreasing ability to enjoy a river for swimming, boating or fishing in the cases of Natural Resources Defense Council v. Watkins; 954 F.2d 974 (4th Cir. 1992); Natural Resources Defense Council v. Vygen Corp., 803 F. Supp. 97 (N.D. Ohio 1992), and Sabine River Auth. v. Department of Interior, 951 F.2d 669 (5th Cir. 1992). Standing was also upheld for aesthetic injury resulting from a plaintiff's experiencing an oily or greasy sheen on a river in Public Interest Research Group v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1991), cert. denied, 111 S.Ct. 1018 (1991). A scientist who studied an Endangered species and its habitat about to be impacted by a development was held to have standing under the ESA to bring a citizen suit against that development in Morrill v. Lujan, 802 F. Supp. 424 (S.D. Ala. 1992).
The cases hold that a plaintiff's members "must show a connection with the geographical area that is the subject of the suit." Public Interest Research Group of New Jersey v. Rice, 774 F. Supp. 317 (D. N.J. 1991). As that court showed, use of the exact acreage in issue is not the requirement of standing.
"The complaint must properly allege that the members of the plaintiff organizations reside in the vicinity of, own property near, or recreate in or near the body of water into which the defendant discharges pollutants, and that the health, economic, recreational, aesthetic or environmental interests of these members are being and will be adversely affected by the discharges. Powell Duffryn, 913 F. 2d at 71, Natural Resources Defense Council, Inc. v. Outboard Marine Co., 692 F. Supp. 801, 807 (N.D. Ill. 1988); Student Pub. Interest Research Group v. Monsanto Co., 600 F. Supp. 1479, 1484 (D. N.J. 1975)."
In Rice, the court found, "These individuals attest that they walk, hike and sail on or near the waters or other waters which are downstream from the defendant's facility or tidally related to the area where defendant discharges." The key is using the area that is in the zone of impacts of the contested project, not using the actual acreage where the project takes place.
In another case also involving private lands, where the plaintiffs' direct use of the lands would have been an illegal trespass, the Southern District of Alabama nonetheless found that the plaintiffs had standing to bring the case. In Sierra Club v. United States Army Corps of Engineers, 935 F. Supp. 1556, 1569-71 (S.D. Ala. 1996), the court held:
"Additionally, specific plaintiffs allege that their members engage in various activities, such as fishing and bird watching, in Dog River and in Mobile Bay, and that their ability to enjoy those activities will be impaired by the destruction of the wetlands at issue in this litigation.
"To bolster their claims further, three individual members of plaintiff organizations have submitted affidavits to the Court explaining how they are benefitted by the wetlands at issue, and how they would be harmed by their elimination. Margie Welch, Chair of the Alabama Chapter of the Sierra Club, filed an affidavit in which she states that she and many other Sierra Club members live on Dog River or in the Dog River basin, that they use Dog River for canoeing, hiking, boating, and fishing, and that they drive by the impacted wetlands and enjoy their aesthetic beauty. Ms. Welch further avers that the filling in of the wetlands at issue here will further degrade the water quality, destroy the aesthetic beauty of the site, diminish the quality of life for herself and other members of her organization, and otherwise directly affect them. In a second affidavit, Myrt Jones of the Mobile Bay Audubon Society alleges that many organization members live on or near Dog River, and enjoy skiing, birdwatching, boating, and observing the serene beauty of the impacted wetlands. A third affidavit was filed by Cherie Marceaux of the Native Forest Network, who asserts that she and other members of her organization engage in such activities as canoeing, kayaking, photography, and daydreaming on and alongside the Dog River. Ms. Marceaux also asserts that she and other members of her organization enjoy cycling alongside the wetlands which would be impacted by the stadium complex, and that the proposed fill-in site is 'magical and beautiful' for its various flora and fauna. In short, Ms. Marceaux contends, she 'love[s]' the wetlands which are at issue in this litigation.
"The allegations presented in both the complaint and in the affidavits filed by individual members of the plaintiff organizations are sufficient, as a matter of law, to satisfy the injury in fact requirement for standing. The plaintiffs have alleged that they engage in various activities in Dog River and in the Dog River basin which will be curtailed or otherwise be adversely affected by the proposed wetlands fill-in. They have further contended that they derive aesthetic enjoyment from the site itself, that they have studied the wildlife on the site from nearby locations, and that their ability to engage in these pastimes will be directly and tangibly affected by the destruction of the wetlands in question. Though the injury is small in that the impact of the wetlands fill on recreation in the Dog River will undoubtedly be slight, it is sufficient to create an injury in fact. The case law is abundantly clear that a minimal showing of detriment is all that is required to establish an injury in fact, and that the plaintiffs' demonstration of an injury in fact in this case is more than adequate to establish standing to sue. See, e.g., Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 231 n. 4, 106 S.Ct. 2860, 2866 n. 4, 92 L.Ed.2d 166 (holding that plaintiff whale watchers alleged sufficient injury in fact by asserting that their ability to engage in whale watching activities would be adversely affected by continued whale harvesting activities of the defendant). Accordingly, the Court hereby rejects the defendants' argument that the plaintiffs have not sufficiently alleged an injury in fact in this case."
An injury alleged to be threatened or caused by a violation of the procedural provisions of the Clean Water Act confers standing. Friends of the Crystal River v. United States Environmental Protection Agency, 794 F. Supp. 674 (W.D. Mich. 1993). An injury from violation of procedural rights under NEPA confers standing. Idaho Conservation League v. Mumma, 956 F. 2d 1508, 1514-15 (9th Cir.), amended on other grounds, 956 F. 2d 1508 (1992). Threatened injury will satisfy the injury in fact requirement for standing. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed 2d 700 (1982). An affidavit establishing threat of future injury meets Article III standing requirements. Sierra Club v. Simkins Indus., Inc. 847 F. 2d 1109, 1113 & n. 4 (4th Cir. 1988), cert. denied, 491 U.S. 904 (1989).
The magnitude of the harm suffered or to be suffered by the plaintiff is not relevant to the standing inquiry, and thus, the injury need not be large; an "identifiable trifle" is sufficient. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed. 2d 254 (1973).
In Save Our Community v. United States Environmental Protection Agency, 971 F. 2d 1155 (5th Cir. 1992), the plaintiff organization supported its standing argument with affidavits by some of its members who owned property or lived in the vicinity of the wetlands that were being drained by the defendant. These affiants stated that they enjoyed "the wildlife, aesthetics, open space, ecological and other values of the wetlands, ... and [were] directly and beneficially interested in the continued protection, preservation, and enhancement of these values." Id., at 1160-61. The Fifth Circuit held that "harm to aesthetic, environmental, or recreational interests is sufficient to confer standing, providing that the party seeking review is among the injured." Id., at 1161. The Fifth Circuit reaffirmed these holdings in Sierra Club v. Cedar Point Oil, Co., Nos. 94-20461, 95-20227, 26 E.L.R. 20522 (5th Cir. 1996).
The court in Sierra Club v. United States Army Corps of Engineers basically held that one can have "drive by" standing, if one genuinely enjoys the area you drive by. Of course, one should not try to establish standing by trespassing on private property, as the courts will not likely tolerate that. When the proposal involved private property, one can establish standing by using the areas near or around that property or areas affected by that property, such as a lake downstream. For matters on public lands, direct use of the land in question is normally no problem.
People who are directly and individually affected by some action affecting the environment still have standing to sue. All that has changed after Defenders of Wildlife is that the "arm chair" environmentalists are taken out of the litigation game.
For many reasons, none of them too good, the mainstream eco-community panicked when the Defenders case came down. But, the Court, as they always do, shows the astute person how to thread the maze. They just raised the stakes, that's all. Only now, the Big Ten Environmental Groups must actually have members who leave the privacy of their own comfy homes and venture forth into the wild.
But an important point is that standing MUST be established before you bring suit or before you file an administrative appeal (if you must file such an appeal first). Nothing will get you kicked out of court faster that to tell a judge you visited the place in question for the first time five weeks after the case was filed. Here's how you do it:
1. Read about the areas of ecology that interest you most. Usually, unless you recently came into a nice fat trust fund, the best thing to do is to focus on issues near your home. That gives you more credibility and reduces the cost and work involved in maintaining standing to sue.
2. Keep it simple, at first. Maybe zero in on a couple of species of wildlife or the roadless areas of the nearest national forest that you believe are not being treated properly by those entrusted to do so. Or, begin reading about that river flowing through your neck of the woods. Newspaper clippings work. Save them, and build a file. It makes for good evidence in court.
3. Join a local conservation group. They'll usually be a decent source of news and information concerning your topic. Latch onto the most knowledgeable person in the group and ask them for info. For the purposes of standing, it usually does not pay to claim as your local group the most radical folks in town. Not to shy you away from such, but conservative members of the judicial branch of government take a slanted view of the "crazies." Do the wilder stuff under cover of darkness. Remember, we're talking "standing" in Federal Court here.
4. Ok, here's the fun part. GET OUT IN THE WILD! Go visit that river or the habitat of those species you've been studying and have fallen in love with. Visit it many times. Camp, picnic, swim, take pictures. Do it all; but JUST DO IT! The courts will scrutinize whether or not you have actually been to the wild. If you forget the rest of this primer, remember this one thing: You must get out there and PLAN TO GO BACK. "Yes, your Honor, I am planning to return to the Blue Mountain Roadless area several times a year." Then hinge your plans to a cute biological nexus -- the Cerulean Warblers migrate through during your planned visits and you enjoy watching them. It is important for standing purposes that you have definite plans to go back to the wild place in question and do whatever it is that you do there again and again. Nebulous plans to return "someday, soon maybe" will not cut it. "Your honor, I already have canoes reserved to run float trips down the Cahaba River on May 25 and June 2 of this year to view the Cahaba lilies. And I have already made plans with the local canoe club to return again during Spring next year." The federal courts are not concerned with whether you have been somewhere once and are "concerned about it;" continuing active involvement and definitive intentions to remain involved are the key to show standing.
5. Have pictures ready to show the court. Proof is in the pudding. Have witnesses. Document everything you do concerning the wild thing at issue. Be hip like Thoreau, keep a journal.
6. Do not be intimidated by the opposing lawyers when they (and they will) challenge your standing. It's a formality. You can beat it!
7. Be sure to have a FILE on all your studies, etc. Include all you records and impressions of all THREATS to your interest, such as "That dam will drown the only known habitat of the Plicate Rocksnail, and I'll be deprived of ever seeing it again in The Wild!" Or, "If the Forest Service clear cuts Indian Tomb Hollow, it will imperil the Flame Chub's habitat and will destroy where I go for vision quests, and I'll be injured and deprived of the experience of visiting the spot which I love."
8. If you have some sort of financial interest in the wild thing that is about to be destroyed, then your proof of standing gets much better. The federal courts consider threats to financial interests much more important than threats to other, more intangible interests. Remember: most federal judges are Republicans, and they think of money as important and of everything else as undeserving of real legal protection. For instance, I write articles in bird watcher magazines, for which I am paid, about Red-cockaded Woodpeckers in the Talladega National Forest, and I guide people there to see the birds. If the Forest Service does something that could destroy those birds, I would have standing to contest that action, because I have a direct financial interest in those birds that is unique to me and not shared by the public at large. I would not have standing, however, to defend Red-cockaded Woodpeckers in South Carolina, because I has never been there and seen them. My interest in the birds in Alabama will not translate into standing to defend birds elsewhere. Thus, there is a real need for people in every part of the nation to get out into the Wilds so that there will be someone with standing to defend every place.
9. Lastly, and I reserve this for the brave at heart, there's the little used but effective RELIGIOUS argument. It's important to note that the Supreme Court is very shy about probing into your religious beliefs. Separation of "church" and state being what it is, I like to throw in bona fide religious concerns into standing claims.
For example, a client of mine, the infamous Ned Mudd, in cases against the U.S. EPA and the U.S. Fish and Wildlife Service, boldly told the Federal Judge that he was (and is) a card carrying member of the International Pantheist Society. This collection of like-minded mystics adheres to the principle that "all is (literally) ONE." Thus, any Federal action which contributes to the extermination of an endangered species violates Mudd's right to express freely his religious beliefs. How? It's awfully hard to worship a species that just went extinct!
Mudd submitted thorough Affidavits of Standing to prove to the Court that he was, indeed, a Pantheist and even went so far as to suggest that he practiced something called "ecological oneness meditation" in the habitat of several endangered species in Alabama. Photos accompanied the affidavit showed Mudd in deep trance over the burrow of a Perdido Key Beach Mouse, one of America's most endangered mammals.
Try as they might, the U.S. Justice Department could not persuade the courts to throw Mudd out for lack of standing.
Now you have the basic outline for standing in federal courts. Usually State Courts are a tad more lenient about standing, simply because you are a resident there and operate as a beneficiary of the corpus of the Public Trust. Also, some states allow a taxpayer to bring a case over whether state tax money is being spent properly, and that can give you standing. The federal courts do not allow taxpayer lawsuits.
Be sure to follow through! Show HOW the action you want to stop is connected to the species you are close to. Water quality? How will degrading water quality harm the Cahaba Shiner? How will that new hydro-dam jeopardize the Bald Eagle? Regardless of the species or the place, you can usually demonstrate to a court that the proposed (or ongoing) action will damage the habitat. That is, assuming you've done the prerequisite homework to prove your case. How does the water pollution discharged by Big Chemical Company affect your use of that river for swimming, boating, fishing, etc? The main points behind the Supreme Court's standing rules are: (1) you personally must have a demonstrable history of involvement with the wild things that are at issue in your case; (2) your involvement must be different from that of the public at large (i.e.: you don't just care about water quality in general; the degradation of water quality in this river will hurt your ongoing use of that river for canoeing), and (3) you have definite plans to continue your involvement with these wild things in the future. To sum up: go there, participate there, go there again. Then you will have standing to defend it in federal court.
Remember, when you make first contact with a lawyer regarding your desire to sue over an eco-case, (s)he's going to wonder about your standing. If you come in with a file folder full of documentation showing your actual involvement with the wild area you're interested in, that lawyer will be aware of your status as a good plaintiff. Most "public interest" lawyers have an desire to improve things. However, they really drool over those court-awarded attorney fees. So, if they think you can jump hurdle number one, standing, they'll be much more likely to look at the real nuts and bolts of your case -- the issues.
The bottom line is this: Get out there, participate with the Wild first hand, study your issues, become competent to defend your local ecosystems, habitats and species, scope out what problems are occurring (or are on the horizon), be willing to make your government do its job to the fullest, and only THEN call a lawyer.
No matter how good you are at handling environmental law matters such as administrative appeals or other things, there may well come a time when you will have a major case on your hands. For that you should hire an attorney.
Before getting to the point of hiring a lawyer, though, there is a lot you can do to get things ready. Preparing a detailed file on the matter you are concerned about will save your lawyer time and you money.
Many environmental problems go through stages. There is the initial idea stage where some industry or government department comes up with the idea to exploit some portion of the planet. You will not be privy to this stage. The next stage of discussions and planning will also be unknown to the public. It is usually only once the plans must be made public that you will become involved. Before our present laws, plans to wipe out something became public only once people saw the bulldozers rolling over the place; now, at least with projects that involve the federal government in some way, the government agency involved must give the public notice of what they plan to do and allow you to comment. That is, of course, if you ever see the announcement in the tiny print of the legal section of the newspaper.
Part of the key to not missing out on an announcement for a project is to get on the mailing lists of every state and federal agency that will have anything to do with any environmental matter in your area. In addition to the newspaper announcements, these agencies must send announcements to members of the public who have explicitly requested to be on their mailing lists for such announcements. Often, an agency will maintain several lists, thus leading to a situation where you get notice of one type of permit but not another. When you write an agency to request to be put on mailing lists, make sure you request to be on all listing used to sending out public notices. Many agencies have a nasty habit of only putting you on lists you specifically request to be on. So ask to be on all of them unless you only want a certain type of notice, because being on all lists for a number of agencies can add up to a lot of paper in your mailbox.
But somehow, the word usually gets out about imminent environmental threats, and people organize around stopping the project. By this stage, the government unit involved and, of course, any company involved are set on doing whatever it is they plan to do. It is not the purpose of this primer to be a complete guide on how to organize a grassroots effort against some venture of industry; this is to give you the basics of the environmental laws involved and what you can do within that legal framework. As for getting people together and informing them of the plans, no legal assistance is needed. Use your imagination, call meetings, have petition drives, hold picnics and bake sales, speak insistently and incessantly (but politely) to every elected official you can find who may have any influence on the forces behind the project you oppose. Write to the newspaper and to television and radio stations; get to know local reporters and give them the story; show them where to dig. Get the public at large outraged. The only legal advice you need during grassroots organizing and motivating is common sense: always speak the truth, do not be reckless with your words about things you are not sure of, and be careful if the other side shows signs of violence.
It is possible to kill a project during the late stages of the government-approval process; politics can be funny, and a room full of hundreds of sign-carrying voters exercising their rights of free speech and of petitioning their government for redress of grievances has been known to make politicians in the pocket of the industry leap out and vote against what they had previously pledged to support. A landfill planned for the middle of a suburb of Birmingham, Alabama was killed when several hundred angry citizens waiving signs showed up at the city council meeting where the permit was to be voted on; although a majority of the council had already said they supported the dump, they voted it down 6-to-1 after they heard from their constituents. It is all a question of whether your votes and anger mean more to the politicians than the industry's money and power. Sometimes you win; most of the time you do not. Money usually means more than votes.
An important thing for you to do throughout the entire process of working on an environmental problem or project is to keep a complete file on everything. Make requests of the government agencies involved for copies of all of their documents on the project. Keep copies of all letters that you send or that are sent to you by the government agencies, the industry involved or anyone else. Collect all the newspaper articles on the issue. Get on the government agencies' mailing lists for all announcements, press releases, notices of hearings or other matters, or any other communications regarding the issue. If you build as complete a file as you can, then when you do seek the aid of a lawyer, you will have already done much of the preliminary work for him or her. You thus save yourself money, and the lawyer gets up to speed on the problem sooner. Also, it is just common sense to get everything you can on paper and save it, because that evidence can support your cause and protect your backside.
You don't have to be Perry Mason to piddle around with environmental law. Fact is, most certified lawyers and judges don't understand the intricacies of so-called environmental statutes any more than you do. So you need not worry yourself that you haven't gotten around to memorizing the Clean Water Act.
What is important is to get a basic grip on how you can operate within the legal system, achieve a reasonable amount of success, and have fun doing it. Consider this a simplified primer on what to do before the lawyer arrives. It will save you time, money, and a few brain cells in the process.
Much of the work of building a case can be done, and often must be done, by the regular folks who are fighting to save the wild. If you depend upon a lawyer to build, make and win a case for you while you sit on the sidelines, you are guaranteed to fail. As shown earlier, you must have standing to sue in court on behalf of the wild. You must be personally and intimately involved with the subject matter of any possible lawsuit you want to prosecute.
Keep a box of recycled manila file folders handy. They're cheap and will simply your task.
Keep a separate file for every facet of your issue. Newspaper clippings in one, scientific data in another, etc. Go so far as to break down your files into separate categories. Thus, for example, let's say you are defending an endangered species from a proposed development. Start a file. Create a separate file for biology (broken down into taxonomy, habitat requirements and locations, reproduction, etc.). Create other files for such things as adverse impacts to the species, famous quotes, photographs, historical news regarding the species, ad infinitum. Get on the agency's mailing lists for all announcements, press releases, notices of hearings and all other matters. It sounds like a pain, but is easy once your "system" is set up.
The point is not to turn into a pack rat from hell but to order your files in such a way that other folks -- like a lawyer -- can easily make sense of what's what. In essence, by paying attention to detail from the beginning (long before the word "lawsuit" materializes), you will be doing what lawyers call "discovery." This is an essential, yet often neglected aspect of environmental law. Remember, if and when you find yourself in the Halls of Justice on behalf of the wild, YOU must be ready to prove your case. And that requires EVIDENCE!
I have seen too many decent lawsuits lost for want of credible evidence. This is important: You do not win a lawsuit because you are right; you win or lose based on whether the evidence you present persuades the judge to follow the law. The bottom line is: If you do a good job of keeping your files together, your case will be light years ahead of where it would be otherwise.
Some people are just not aggressive. Those folks are at a distinct disadvantage when litigation pops up. They tend to be at the mercy of lawyers, either their own or someone else's. That sort of behavior gets expensive.
Aggressive types have the advantage where discovery is concerned. The goal is not to sit back and see what evidence turns up in the mailbox but to go out and discover the FACTS. And, often enough, the facts are hiding behind door #3. Or being hidden.
Long before you hire a lawyer, you should be involved in the events that impact the wild you want to defend. As a natural part of your participation in rallies, public hearings, meetings with bureaucrats and politicians, and confrontations with your opponents, you will acquire documents related to your eco-issue.
Rule One: keep copies of everything. Everything is important potential evidence to prove your standing and to supply the legal basis for a lawsuit. As shown earlier, use of the Freedom of Information Act can open previously locked doors.
Rule Two: gather other evidence yourself. Don't trust that something will be around when you need it or that someone else will get the evidence you need. Photograph everything that might have any significance to protecting the wild. Tape record all telephone conversations with anyone that has anything to do with the project. (Note, check your state laws on recording conversations before doing so; each state has different requirements and in some it is illegal. Federal law requires that you obtain the consent of one of the parties to the conversation before you may record it. Of course, if you are one of the parties, then you have your own permission, but if you are not, get permission from one of the parties before recording. Some state laws have identical requirements; some have more restrictive ones.) Record all in-person conversations with anyone involved in the matter. If you attend any public hearings, get a copy of the transcript, if you can afford it; if you cannot afford it, then bring a tape recorder to the hearing and record it yourself.
For example, back to our endangered species: You have been put on notice that the proposed development is en route. First, contact the U.S. Fish and Wildlife Service, the State Department of Conservation, and the State Natural Heritage Program. Use a simple "request for information" letter. Be sweet, no weird eco-rhetoric.
Next, corroborate all incoming data with knowledgeable folks willing to assist you. A trip to the library might round things off, as old clipping files are an invaluable source. (You'd be surprised what you can learn about your local judges from library clipping files).
Of course, you also paid a visit to the habitat of the endangered critter, taking photos and communing with nature. If so, your legal standing just improved.
All of this fabulous array of facts is being placed in your file folders under appropriate headings, as demonstrated above. Now you are ready to become an "expert" in your subject.
It is essential to comprehend what your files can tell you. You must find AND assimilate "the facts." Your objective is not to be a clerk of the world, but to defend the wild. So spend time learning your material.
Once you believe you have gotten to the bottom of things and your files burgeon with juicy facts, it is time to evaluate the situation, as well as the options. Ask these things:
1. Can this issue be settled amicably and out of court?
2. Are things so greed-locked as to necessitate legal action?
If you answer "yes" to the latter, keep reading.
If you do your own research, gathering the facts, then your lawyer doesn't have to do it. Lawyers charge a bundle for that kind of stuff. Clients are constantly shocked at how fast their retainers disappear during the "discovery" stage of their case, which is early on in the whole litigation.
From the get-go of every environmental issue, be diligent in searching out and cataloging all facts about your subject. You are only limited by your level of zeal for victory.
And don't overlook the obvious that may not seem directly related to your eco-issue. Video tapes work: Catching an evil developer with his banker's wife makes for good leverage.
Be creative, but be thorough. Make friends with those who came before you. Ask them to help you. I've found more than one University professor willing to duplicate their files for me. That, plus a bit of off-the-record discussion can lead to invaluable evidence. Seek out experts in a variety of disciplines. Just because you're dealing with the biology of a rare species, don't look to just biologists for help. A professor of urban development might look at the proposed development and see a way to redesign it so that the rare critter is spared.
Don't overlook the social aspects of your issue. Never neglect the seemingly innocuous web of people connections involved with your issue. The next door neighbor's mother might turn out to be our evil developer's secretary.
Once you've gotten your files in order, assess the situation. Once you are sure that the only option is judicial intervention, then you need a lawyer. Depending on your case, you may want to find a lawyer early in the process just for the peace of mind of having him or her look over your shoulder as you do things. But once litigation becomes the only way to stop something bad, you need a lawyer. Legally, you can represent yourself in court, but as the old saying goes, "Only a fool has himself as a client."
FINDING YOUR OWN LAWYER: What to Do and Ask
"The animals are not so stupid as is thought: they have no lawyers." -- Anonymous.
"Necessity knows no law; I know some attorneys of the same." -- Benjamin Franklin, Poor Richard's Almanac (1734).
Once you have a file and the situation with the matter at hand is to the point where you feel a lawyer is needed, here is some guidance on how to go about finding an attorney.
Lawyers are slippery things. Trying to get a hold on one or on what one is saying can be difficult.
Also, as discussed elsewhere in this primer, if one is to be a plaintiff in a case, you must have standing to bring that lawsuit. In the realm of environmental law, this requirement for standing means that you must get out into the real world and be involved in whatever is being threatened. If you are fighting a plan to clearcut a wilderness, you need to go out into that wilderness and learn all you can about it. No lawyer in the world can win your case if you get thrown out of court because you did not establish a sufficient, real, uniquely personal interest in the things about to be destroyed, and it is important that you establish standing prior to beginning any part of any potential legal action. Filing suit over the pollution of a river and then later going out to the river and canoeing on it will not work.
Once a project is permitted and is slated to go ahead with full government approval, your options for grassroots citizen involvement to stop the thing shrink dramatically. Without legal action against it, a thing with all necessary permits is almost certain to occur. With most federal permits and most state ones, there is an administrative appeals process that you must go through before you can take them to court, This is not always the case, but essentially, with the exception of things like Forest Service timber sale appeals, the administrative appeal in most agencies is sufficiently similar to a court trial that to engage in one without a lawyer is almost sure defeat. Once a permit has been granted to the project and one still wants to fight it, one needs a lawyer.
It does not hurt to have a lawyer ahead of this time. When negotiating with politicians and bureaucrats, there is nothing like having a lawyer at your side to let them know you are very serious about this matter and willing to play the litigation card. Many politicians, industrialists and other business types do not take anything the public may do seriously, except litigation; no matter how good an industry's situation may be, litigation is always a crap shoot, and it always has the possibility of stopping the best-laid plans of power. Also, because many permit decisions must be appealed or legally challenged within a certain, set amount of time, having a lawyer already retained will avoid the nasty scene of trying to find one on short notice before the appeal deadline passes.
What do you look for in a lawyer? Obviously, for purposes of environmental protection, one who is committed to the environment would be the best choice. Sometimes, you may be able to get a major environmental group interested in the thing you are fighting. For example, if you are fighting drilling in the Arctic National Wildlife Refuge, there will be no shortage of environmental lawyers from the Sierra Club (now Earth Justice) Legal Defense Fund, the Natural Resources Defense Council, the Environmental Defense Fund, and other groups working on the problem. But what if you are fighting something a little more local in nature? A call to these groups cannot hurt; they may take your case, but don't count on it, and if they don't, they may be able to recommend someone in your area. There are some regional environmental law groups such as the Southern Environmental Law Center in Charlottesville, Virginia, and WildLaw in Alabama.
Often, big environmental groups will not come to your rescue, and you will need to hire your own local counsel. Most of the lawyers who specialize in environmental law work for industry or for big law firms that work for industry. Do not waste your time on any of these. Check at your local county law library for books called Martindale-Hubbell; these contain resumes of lawyers and law firms throughout the country, including those near you. The big firms will be in these, and their main clients will be listed. Remember, not all lawyers are in these books, particularly sole practitioners, and it is the sole practitioner that will probably be most inclined to support your cause and agree to take your case.
What it may come down to is for you to ask as many people as you can about lawyers that have no ties to the industry you are fighting and who might take the case. Call your local and state bar associations to see if they have any attorneys in your area listed as willing to work on environmental or other pro bono cases. Contact state and local environmental groups to see if they know of any lawyers that may help. Look in the yellow pages; many lawyers advertise like every other business does, and one may actually be so bold as to put environmental law as one of her areas of practice.
Lawyers with expertise in environmental law and with a desire to help people rather than business are few and far between. If you find one, you may need to hire him whether you like him or not. Remember, your lawyer is not your friend, your mother, your confidant or your therapist; he or she is to counsel you on legal matters, so whether you like the lawyer personally should not be a deciding factor in whether to hire him or her. Of course, if they are an obvious shyster, that is another thing, but hoping to find a lawyer who will take your case and who will be likeable is asking a bit much. Environmental cases look complex even if they are not, and most attorneys will run from an environmental lawsuit as fast as they can.
Contact as many attorneys as you can about your case; go meet with those that express any interest at all. At these meetings, the lawyer will be deciding whether to take your case or not, so you need to be cordial and friendly, but also remember, that you are interviewing him for an important job. Here is a checklist of things to look for and to ask for; if the lawyer is less than frank with you or does not want to share all this information with you, walk out immediately.
Things to look and ask for:
___ knowledge of environmental laws, particularly the ones that deal with the project you are opposing;
___ experience with environmental law cases, particularly ones similar to yours;
___ knowledge of the agency and corporation involved in your situation and what they have done in similar situations in the past;
___ personal commitment to the cause of the environment in general and to your cause in particular;
___ involvement with local environmental groups, either on a personal or professional level;
___ whether he or she might have a conflict of interest; make sure that the lawyer has no ties to the industry or government agency involved in your situation;
___ references from environmental groups or persons that you know of and trust; talking to present or former clients of your prospective lawyer is important for making your decision; if he or she is uncomfortable with this, look out;
___ fees, costs and contract terms; you want to know everything you are getting into with this person before you do so; find out if they will take the case pro bono, that's Latin for "for free," and if not, find out exactly their billing system and how they can stretch your money as much as possible;
___ assuming the lawyer takes the case, how far is he or she willing to go with it; some attorneys will take a case through an administrative appeal but will not go on to court or will go through trial but not through appeal;
___ is the attorney financially solvent and stable; don't ask for detailed financial records but do get some kind of assurance; a lawyer that goes out of business can leave clients up a creek;
___ get a copy of the attorney's standard contract form and review it prior to hiring them; read it in its entirety; ask if there would be any different clauses for your case. Read everything before signing it, and do not be afraid to discuss and negotiate over clauses or anything in the contract. Have the lawyer explain anything you do not understand.
___ has the lawyer had any disciplinary problems with the state bar association; call the bar association to double check what the lawyer tells you.
Although you may be lucky and find an attorney to take your case pro bono, in all likelihood, you will have to pay for the lawyer and pay for the costs of the litigation. Even cheap lawyers can run 75 to 100 dollars per hour, and a single deposition of the other side's chief expert can cost a thousand bucks or more. Plus, if you need to have experts on your side of the case, unless they volunteer their time and expertise, you are looking at costs of up to and even beyond a thousand dollars per day per expert for expert witness testimony. No doubt about it, litigation, even simple litigation (which environmental cases often are not), can be very expensive; count on at least $10,000 to initiate even the simplest environmental lawsuit.
There is an exception; in things like cases over timber sales and wetland fill permits, the normal case will not involve new evidence. Instead, the court will review the record compiled by the agency before it made its decision. Thus, the only thing you lawyer will do is write briefs and make arguments to the court. This kind of case will be much cheaper than a case involving intense factual issues over pollution, toxicity, and other complex matters. Exclusive of attorney fees, cases like this can cost as little as a few hundred dollars. In cases where the court only looks at the record the agency compiled before it made its decision, it is important that you get all your expert opinions and other evidence into that administrative record during the official comment period held by the agency. If you forgot to get you stuff into the record before the agency makes its decision, the court will not look at it later when you sue, and your case will be dead.
Make sure that your lawyer understands all the consequences of what may happen to you and that he or she knows what to do about those things. Your lawyer should keep you regularly informed of what is happening with your case and should promptly return your calls for information. Have one person in your group or cause be the contact person with the lawyer. That way the lawyer gets used to dealing with one person, and you do not have all your money used up by having every member of your group call the lawyer for the same story over and over; attorneys will bill you for all time spent jawboning with you or anyone connected with you. The lawyer should give you detailed billing accounts every month; do not tolerate an attorney who is sloppy about informing you about the case or about how he or she is spending your money.
Finding a good lawyer who is expert in the environmental area and who is personally committed to your cause would be ideal but is extremely unlikely. If you find such a person, congratulations; go after the problem. If you don't find such a lawyer, take the best you can find and fight anyway, assuming you are prepared for the financial and personal tribulations of litigation. Law and litigation are not for everyone, but they are necessary for protecting the beautiful places of this Earth.