Legal Eaglets

For five years, the UW Environmental Law Clinic has defended the little guy, battled big corporations, and given sheltered students real-world experience. Now its benefactor is thinking of pulling the plug.

By Daniel Jack Chasan December 28, 2008 Published in the July 2008 issue of Seattle Met

GARY KNEW SOMETHING WAS WRONG when his granddaughter returned from her ride on a horse with no white feet. His wife was the first to notice: Normally, their horse’s hind feet were white. Now all four looked dark.

Gary and his wife live in the Okanogan highlands of central Washington, “at the edge of the pines.” They moved there from Seattle years ago. Social Security and senior discounts help them get by. In return, they can look out at miles of the North Cascades. At night, they see maybe four lights. The view was one of the things that attracted them to the area. And they wanted to live in a community where people knew each other and helped each other out.

So when a neighbor who owned property on two sides of theirs asked if he could clear a road through a corner of their land, Gary said he thought they could work something out. A road might serve as a fire break—Gary and his wife had already had to flee two wildfires—and, besides, it seemed the neighborly thing to do.

That day, when Gary’s horse came home with four dark feet, he and his wife asked their granddaughter what had happened. “There’s oil all over the place out there,” she replied. Gary walked up to take a look. He couldn’t believe what he found. “I was pretty flabbergasted. The stench was horrible.”

Out where Gary lives, if you scrape off the top layer of soil to, say, build a road, you’re down to old volcanic ash. If you don’t cover it with something, it’s called “moon dust” and it blows around like spilled flour. Usually you would cover it quickly with crushed shale. Gary’s neighbor had covered it with a thick layer of waste oil. “I just didn’t know what to do,” Gary recalls. “I called the Department of Ecology.” Ecology called the local health department. Someone from the health department went out to his place, looked, took a sample, told Gary and his wife to stay off the site. Next thing Gary knew, Ecology sent a letter informing him that he was the proud owner of a Model Toxics Control Act hazardous waste site. The letter was full of acronyms he had never seen before, but the gist of it was clear: He would be responsible for cleaning up a mess he hadn’t made. “That’s what set me off in a panic mode.”

He called a local lawyer. The lawyer said he couldn’t take the case because he was about to retire. He called another local lawyer. That lawyer said he couldn’t take the case because he had a conflict of interest. Gary figured central Washington probably wasn’t the best place to find environmental law experts anyway, so he went online to see whom he could find someplace else. He called a number he found there. The woman he spoke with said she’d get back to him. Her organization couldn’t take his case, she said, but she’d give him another number to call.

Berman has sued Enron, Boeing, Big Tobacco, Mike Tyson, and the City of Seattle’s coin-eating parking meter

He tried that number. The young man who answered the phone seemed interested. “He has compassion for somebody who’s 
just the small guy,” Gary thought. Then he discovered that this compassionate soul was just a small guy himself—a third-year law student at
 the University of Washington.

Steve Berman is definitely not a small fish. He is this state’s class-action king, one of its most successful and controversial trial attorneys, famous for what Spokane’s Spokesman Review called “his bare-knuckles style and big legal victories.” As a special assistant attorney general for Washington and a dozen other states, Berman played a key role in wringing a $206 billion health-claims settlement from the major tobacco companies, the largest settlement of any kind in American legal history. As a private attorney he has waged a number of other high-profile, high-dollar cases: His firm, Hagens Berman Sobol Shapiro, was co–lead counsel in an antitrust suit on behalf of Wal-Mart and millions of smaller vendors, nailing Visa and MasterCard for forcing merchants who took their credit cards to also take their debit cards; that one led to a $3 billion settlement. Berman has been co–lead counsel in a suit against Enron and its investment bankers, lawyers, and auditors for conning Enron employees into investing or keeping their retirement funds in company stock. He helped get a $290 million settlement for builders and home owners who had bought defective siding from Louisiana Pacific. He’s also sued Boeing, American Express, Mike Tyson, and the City of Seattle’s old coin-eating parking meters. He even filed a class action against a lawyer-rating service that gave him its top mark—on behalf of two attorneys who didn’t score so high. The National Law Journal has twice rated him one of the country’s 100 most influential lawyers.

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Berman attended the University of Michigan and the University of Chicago’s law school, but he’s long taken a special interest in the University of Washington. In 2003, he got an idea for a program that might fill two important shortfalls: Law students need practical experience in court and on real cases. And environmental victims and organizations need legal muscle. “I went to the dean and said, ‘This is what I want,’ ” Berman says matter-of-factly. “My vision was to do two things: hopefully to make a difference in some environmental problems that weren’t being addressed”—he cites global warming as an example—and also, of course, to “provide a training ground for students.”

What Berman was talking about was a law clinic—a real-world laboratory for lawyers-to-be. Such clinics take legal education out of the lecture hall and a little closer to the hallowed image of Abe Lincoln reading law in a small-town lawyer’s office. Many nonlawyers might be surprised to learn that a student can graduate from law school and pass a bar exam without ever learning how to practice law. Unlike doctors, lawyers don’t need any supervised hands-on training to get licensed; most learn the practical details after they graduate.

Law clinics provide that missing practical experience, and more. Greg Hicks, the UW School of Law’s interim dean, notes that they can also imbue the “solid ethical grounding” that the Carnegie Foundation for the Advancement of Teaching last year found to be lacking in most U.S. legal training. “There’s nothing like that sense of being on the line, when your advice is going to have real consequences,” says Hicks.

That sort of thinking is catching on. Law schools around the country are starting to offer more clinical training. UW and Seattle University each offers a dozen or so clinical courses, in specialties ranging from arts to immigration. Washington and Lee University’s law school recently announced that its students’ final year will be entirely devoted to practical experience.

Against this backdrop, it seems like a no-brainer that the University of Washington, the only public law school in a self-consciously green state, should have an environmental law clinic. Indeed, such a clinic had long been the dream of one legal eminence, William Rodgers, UW’s endowed Stimson Bullitt Professor of Environmental Law. But clinical education is expensive. “When you start moving from a professor and a class of 60 or 100 students to a professor with 8 or 10 students in a clinic,” Hicks says, and pauses. “You do the math.”

That was where Steve Berman came in. Five years ago he and his family put up seed money to launch the Kathy and Steve Berman Environmental Law Clinic. Michael Robinson-Dorn, an attorney who had grown up in New York and on Vancouver Island and worked for the U.S. Justice Department, headed the Seattle City Attorney’s Environmental Protection Section and became its director, a post he still holds today. The clinic had “two missions, which aren’t necessarily compatible,” says Robinson-Dorn. “We’re supposed to train students, 
and we’re supposed to protect the environment. That is the challenge—how are we going to allow ourselves to work together so that we can take on the problems and still achieve the training?” It’s not always easy to pick cases that do both.

The Environmental Law Clinic doesn’t normally take on small cases like Gary’s polluted road. But Josh Piper, the student Gary caught on the phone that day, argued for this one. “Josh came right to me,” says Robinson-Dorn, “and we began discussing the possibility of the clinic taking the case. Following classic clinic pedagogy, Josh would then take a ‘first chair’ role—speaking with the potential clients to learn more, etc. I then invited our private bar cocounsel to join us, and there was a significant amount of discussion before we took on the case.” Soon Gary was 
hooked up with the clinic and with the Seattle law firm Riddell Williams, where Piper had interned during the summer.

In 2005 the law clinic waded into one of the biggest cases of all: the 1989 Exxon Valdez oil spill. Seventeen years ago, the world’s largest oil company agreed to pay the federal and Alaska state governments $900 million for environmental damages caused when its wayward tanker ran aground in pristine Prince William Sound. But a question lingered: Could the feds reopen the case if the damages proved (as they did) to be even greater? Some legal scholars thought not. William Rodgers, the law clinic’s mentor, disagreed. Rodgers held a seminar on the question and asked students to look into possible causes of action. Drawing on their findings, he wrote a law review article on the subject and urged the clinic to bring a case.

It didn’t take much urging. With money from the law school’s foundation, a student team flew to Anchorage and drove to Valdez, making sure to check out the bar where Joseph Hazelwood, the tanker’s boozy captain, drank. The students then proceeded to Bligh Reef, where the ship went aground, and rode a fishing boat to the oil port of Cordova, where, as Robinson-Dorn puts it, “everyone had been affected by the spill.” They crossed Prince William Sound to the native village of Chenega and saw beaches still marred by spilled oil. One of the students wrote back, “Prince William Sound is the most beautiful place I have ever seen.”

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Thus inspired, the clinic drafted a petition to the Justice Department, Interior Department, and EPA urging that the government reopen the case. The feds and the State of Alaska have since done just that, demanding another $92 million. They’re now negotiating with Exxon. Did the UW clinic help make that happen? Robinson-Dorn knows of no one else “other than the villages and related groups that we worked with” who petitioned the feds to act. “Before Bill Rodgers set out the issue and legal questions very few people were thinking about the reopener,” says Robinson-Dorn. Rodgers’s article “acted as a catalyst for action and pressure.” Rodgers and Robinson-Dorn met with native leaders, activists, and folks out in affected villages. Rodgers gave public speeches and spoke to groups of every stripe, from tribal to environmental. “We brought cameras to the meetings,” recalls Robinson-Dorn, “and plenty of Alaskans started taking notice.”

To get the Alaskan natives’ story out and generate more pressure, the clinic joined with Seattle filmmaker Michael Harris to produce a documentary that could explain their clients’ situation to a broad television audience. Together they recruited Billy Frank Jr., the celebrated chairman of the Northwest Indian Tribal Fisheries Commission, to narrate it. The result, The 3rd Trustee: Native Alaska and the Big Spill, has shown only once, on Tacoma’s KBTC public television, but it may get a second life; it’s been nominated for two regional Emmy Awards.

That wasn’t the last time the law clinic strayed beyond the traditional legal venues of litigation and negotiation. Whatever its benefactor Berman may have hoped, it has not sued to halt global warming, but its students did help draft a recently passed state bill requiring that state agencies report greenhouse-gas emissions and setting ambitious goals for reducing them. Among other stringent measures, it tells state agencies to figure out how to reduce the total miles driven in Washington by 18 percent from 1990 levels by 2020, and 50 percent by 2050.

Meanwhile, back in the Okanogan highlands, Gary’s road dispute festers. The clinic’s students have been negotiating with his neighbors and the State over the unintended consequences of a law designed not only to clean up toxic wastes but to make sure someone other than the taxpayers foots the bill. They’ve drafted a complaint that has not yet been filed in superior court; until it is, Gary insisted that his last name not be used.

Ideally, environmental law stretches the mind; practitioners learn to think in micro and macro terms, and to recognize when to fight and when to cut a deal. Before entering UW Law, Corinna McMackin spent a few postgraduation years out in the real world, where she taught a youth conservation corps. And so she welcomed the chance to work on real-world problems at the Environmental Law Clinic, and to collaborate rather than compete with other students. She found herself especially drawn to the personal scale of Gary’s woeful tale—a sharp contrast to the loftiness and abstraction of the case she’d worked on before.

Then as well, McMackin and her fellow student lawyers had to contend with the consequences of waste dumping—but this time, instead of one guy befouling his neighbor’s property, they had to grapple with a fleet of giant ships dumping huge quantities of waste in the ocean. Cruise ships are basically floating towns; on an average cruise, one might discharge 30,000 gallons of sewage a day and generate eight tons of solid waste each week. It may treat the sewage on board, but then it must dump the leftover sludge.

In 2000, as the Clinton administration was drawing to an end, the Bluewater Network and 52 other environmental groups petitioned the EPA to assess and regulate the industry’s emissions. The agency started to respond but then, under George W. Bush, did little or nothing for seven years.

Local marine activist and consultant Fred Felleman brought the problem to the UW clinic. Robinson-Dorn and his students filed a complaint on behalf of the national environmental group Friends of the Earth, which had picked up the lead on cruise ship pollution. It asked a federal court in the District of Columbia to order the EPA to respond to the original petition. The famously outspoken Felleman and his colleagues were ready to push the case in court until the feds delivered, but, as he puts it, Robinson-Dorn “had to sort of give us the cold shower.” Robinson-Dorn urged Felleman et al. to negotiate a settlement—a quicker, cheaper way to get the same results. Last year -McMackin and other clinic students took part in settlement negotiations.

As a result, the EPA issued a thick year-end report on cruise ship emissions. Litigation might have been more emotionally satisfying but, Felleman concedes, “we would have gotten the report even later had we actually sued them.” Often a client is better off negotiating rather than litigating but, says Robinson-Dorn, “I think it’s a real surprise to the students.” For many, he explains, “ ‘clinic’ means ‘sue the bastards.’ ” It’s important to rein in their youthful hotshot impulses, to show that “there are multiple tools” in a lawyer’s kit.

And multiple avenues for aiding a client or a cause. The students also helped Felleman and his fellow watchdogs persuade the Port of Seattle to consider the big ships’ emissions in planning a new cruise ship terminal, even after it had disregarded them in its environmental impact statement. After drafting comments (with the clinic’s help) Felleman faced a decision. He could sue the Port and delay the terminal’s construction, but realistically, he says, “if you file a case and win, [all] you get [is] a better environmental impact statement. You basically get a better phone book to read.” Once again Robinson-Dorn told Felleman he’d be better off with an agreement. Felleman realized he was right.

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For Felleman, walking into meetings with a phalanx of lawyers—clinic students and Robinson-Dorn—was “a rabid environmentalist’s wet dream.” It conferred stature and an air of not-so-veiled threat, putting the discussion on a different plane. “You don’t have to threaten when you have your attorney with you.”

While the cruise ship cases taught some clinic students the virtues of negotiation, a case in the Yakima Valley has shown others that losing the first round doesn’t mean you abandon the fight. The polluters in question this time were industrial-scale dairy farms, which, from an environmental perspective, aren’t all that different from cruise ships. Both are packed with wholesome—looking large mammals that produce a lot of waste.

Helen Reddout grows Bing and Rainier cherries on 170 acres in the lower Yakima Valley, across the Cascades from Seattle and about 160 miles south of Gary’s troubled Okanagan hideaway. For years she watched what the trade calls “concentrated animal feeding operations,” or CAFOs, proliferate in the valley, spreading nitrogen-laden waste that can leak into groundwater. Finally she formed the nonprofit Community Association for Restoration of the Environment (CARE), which challenged the legality of the blanket state permit under which CAFOs operate, arguing that officials should monitor the groundwater, not just sample the soil above it, and that the blanket permit lets the big dairies hide critical information.

It’s important to rein in student’s youthful hotshot impulses, to show them there are multiple tools in a lawyer’s kit.

Reddout’s battle has won her plaudits in green circles; John and Teresa Heinz Kerry called her a “local hero.” But she and the lawyers from the Eugene-based Western Environmental Law Center who represented her didn’t fare so well in the legal arena. CARE lost before the state Pollution Control Hearings Board and appealed the decision to the Washington State Court of Appeals. At Rodgers’s suggestion, the Eugene center enlisted the UW clinic’s help.

Once again, the UW students went to see what they would be fighting to protect. Reddout gave them a tour. The Yakima fields were a world away from the green lawns of Bellevue where Meghan Marie Bowen, one of the UW students working on the dairy-waste case, grew up. Bowen met dairy workers and other impoverished neighbors who drank nitrate-laden water from waste-contaminated wells, many of them only 80 feet deep. She learned that many of these people worked for the giant dairies and couldn’t afford to make waves. “I think they feel kind of railroaded by the big animal operations,” she says. “People are very dependent on the industry for their jobs.”

As they drove around the valley, the law students received a very different reception from the warm welcome their fellow students had gotten on Prince William Sound. Big pickup trucks slowed down to let them know they were being watched. “Intimidation,” Bowen thought, and realized what Reddout had faced to pursue her battle. She’d never met anyone who had given so much to a cause; it was thrilling to see that one person could make such a difference.

And Bowen got a visceral sense of the issues. Reddout drove the students down a public road in the nearby town of Granger, lined on both sides with megadairies. They stopped the car and rolled down the windows; the ammonia vapors hit them immediately. “My throat started burning,” she recalls. “I couldn’t breathe.”

What does all this experience actually prepare students to do? Steve Berman hopes that even if they don’t choose careers in environmental law they will do pro bono work on environmental cases. Robinson-Dorn declares that he doesn’t “tailor the cases that we take” to helping students get jobs. But those students will have to work somewhere, and most of the work in environmental law does not come from the Helen Reddouts and Fred Fellemans of the world. There are two sides to every environmental case, and the industry side generally has a lot more money. Is the clinic just training savvier lawyers to defend big polluters?

None of its graduates has gone to work for Exxon so far, but if it comes to that, says Robinson-Dorn, “I would rather have people who came out of this training [than from more conventional legal backgrounds] working for Exxon.” And why stop there? “If you could bring the judges and educate them the way we do the students, it would be a whole different world.”

This year, Berman’s gift to the law clinic is set to run out. As of spring he hadn’t decided whether to keep funding it. Berman isn’t sure the clinic that bears his name and spends his money is working out as he envisioned. He’s disappointed that UW faculty hasn’t made more use of it. “I would hope that it would develop such a reputation for doing good work,” he says, that profs would immediately think of it when they faced a problem to big too handle. Instead they seem “too busy” with their own narrow disciplines: “They don’t see litigation as a way to solve problems. That part’s been a disappointment.”

Inside the university, Robinson-Dorn sees things differently. He says faculty members have consulted the clinic to a “remarkable” extent, and suggests it will play an even more central role when the university launches a planned interdisciplinary College of the Environment. But, he acknowledges, public money won’t be enough to bankroll the college either: “No small measure of it is going to come from private funding.” And the university will need more angels like Steve Berman.

Berman’s dissatisfaction with the clinic also has a personal side. Because customized programs like clinics are so expensive, they often entail close relationships with private funders—rather like the relationships between art museums and their major donors. Universities must match, or balance, their needs with their donors’ passions and expectations. Berman’s passion for litigation and environmental protection makes him want to run the show, or at least play a big part in it. “I try to be more hands-on than I’m permitted,” he confesses. The law school’s Dean Hicks is, understandably, conciliatory: “We’re committed to working closely with Steve.”

Back in his home in the high pine country of central Washington, Gary faces an even more uneasy prospect. The State is still trying to force him to clean up the toxic mess he didn’t make at a price that could cost him his retirement haven. “I’m tired of the whole thing,” he says, in a tone that lets you know he means it. But he’s found one consolation in the whole sorry struggle. For him at least, working with the junior litigators of the Environmental Law Clinic, who took his case when no private lawyer would, has “turned into a wonderful relationship.

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