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January/February 2023

Pledge to keep listening: The role of legal ethics in environmental justice advocacy

Cale Jaffe

Summary

  • Defines environmental justice as an understanding that people of color and low-income communities are more likely than the population at large to suffer adverse effects from major environmental permitting decisions.
  • Discusses the historic Pine Grove School and how it is threatened by a proposed landfill on immediately adjacent property.
  • Addresses how the “rebellious lawyering” model seems particularly well suited to environmental justice cases.
Pledge to keep listening: The role of legal ethics in environmental justice advocacy
Tim Robberts via Getty Images

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Environmental justice is rooted in an understanding that people of color and low-income communities are more likely than the population at large to suffer adverse effects from major environmental permitting decisions. For decades, facilities like hazardous waste landfills, coal-fired power stations, and chemical manufacturing plants have been far more likely to be located in environmental justice communities than anywhere else. 

Zealously representing these communities may require a different understanding of the lawyer’s role than what is typically taught in law schools. It might even benefit from amendments to the American Bar Association (ABA) Model Rules of Professional Conduct.

Background

In 1982, women in Warren County, North Carolina, engaged in a powerful act of civil disobedience, blocking the path of trucks carrying PCBs to a toxic waste landfill that had been sited in the predominantly Black community. The civil rights leader Ben Chavis termed that siting decision “environmental racism.” It was a landmark event in the birth of a movement.

Today, mainstream, national groups like the Natural Resources Defense Council and the Sierra Club have placed lawyers focusing on environmental justice into leadership roles within their organizations. States like Virginia have enacted new laws, codifying a policy “to promote environmental justice and ensure that it is carried out.” In Friends of Buckingham v. State Air Pollution Control Board, the U.S. Court of Appeals for the Fourth Circuit admonished an agency that “environmental justice is not merely a box to be checked,” and remanded a permitting decision over “failure to consider the disproportionate impact on those closest” to sources of pollution. 947 F.3d 68, 92 (4th Cir. 2020).

Despite working as an environmental advocate in the Southeast for nearly two decades, I had little direct experience with environmental justice campaigns until I was approached by a group of former students from the Pine Grove School in Cumberland County, Virginia. Pine Grove operated from 1917 to 1964 as part of the Rosenwald Schools initiative, which sought to create educational opportunities for Black schoolchildren who had been locked out of public schools due to Jim Crow oppression. Today, the historic Pine Grove School is threatened by a proposed landfill on immediately adjacent property.

The Environmental Law and Community Engagement Clinic at the University of Virginia, which I direct, is representing the AMMD Pine Grove Project—largely a group of former Pine Grove students who are seeking to preserve this remarkable school. But Muriel Miller Branch, a cofounder of the AMMD Pine Grove Project, has resisted framing the case exclusively as a school preservation effort.

Reflecting on what is at stake, Ms. Branch has noted that her “connection to the Pine Grove community is spiritual.” She adds, “This is the place that gave me that sense of being, of who I am, and a sense of purpose. I am determined to preserve that legacy as much as the legacy of Pine Grove School. This is more than a building.”

Hearing these words have helped me understand that our work needs to focus on preservation of all resources—not just the physical structure of the Pine Grove School, but also the community of which it has been the center.

Ethics and environmental justice

The ABA Model Rules of Professional Conduct are replete with guidance for lawyers on how to advise their clients. But there is little in the rules on how to listen.

One of the comments to Rule 1.1 advises that “Competent handling of a particular matter includes inquiry into and analysis of” the facts underlying a problem. Rule 1.2 is clear that “A lawyer shall abide by a client’s decisions concerning the objectives of representation. . . .” Further guidance comes from Rule 1.4, which directs lawyers to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”

Still, these rules never expressly endorse the view that listening to a client requires being patient. There is no prescription about resisting the urge to offer immediate advice on a course of action. There is nothing about taking time to let a client’s fears, concerns, aspirations, and expectations sink in.

Case law from the U.S. Supreme Court does a bit better, with one of the clearest statements on how to listen to our clients coming from McCoy v. Louisiana, 138 S. Ct. 1500 (2018). That case focused on a criminal defense attorney who had conceded his client’s guilt as a legal strategy “best suited to avoiding the death penalty.” Id. at 1508. The client—who wished to maintain an assertion of innocence—protested. Writing for the Court, Justice Ginsburg emphasized, “These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.Id.

The McCoy Court was adamant that a lawyer is obliged to honor a client’s “autonomy”—even when that contradicts a lawyer’s insight on the best path forward. Doing so requires accepting that our expertise as lawyers matters less than a client’s dignity. It demands humility.

Humility and environmental justice

Humility is an essential element of our clinic’s legal work with the environmental justice community at Pine Grove. I began our involvement with the AMMD Pine Grove Project by proposing to serve as a legal expert and help the school navigate environmental permitting processes with federal and state regulators. But that is not how it has worked out. It has been far more of a collaboration than a representation. More following, less leading.

The model for this approach was sketched out three decades ago by Professor Gerald Lopez in the seminal book, Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice. Rebellious lawyers “must understand how to be part of coalitions,” which means honoring the problem-solving prowess of the communities they represent. Lopez adds that rebellious lawyers should jettison a traditional mode of representation that tends “to assume that the client’s primary goal is to win the case and address a narrow legal problem.”

This aspect of the “rebellious lawyering” model seems particularly well suited to environmental justice cases. The ABA Model Rules (perhaps starting with Rule 1.4, the baseline rule on communication) might benefit from amendments or additional guidance via comments to capture such a mindset.

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