Barry Rascovar: Teachable moment crops up in pollution lawsuit -- Gazette.Net


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With the General Assembly about to reconvene, a federal judge has guaranteed continuing debate over the role played by University of Maryland law school students and professors in environmental lawsuits.

U.S. District Judge William Nickerson came down hard on attorneys — including UM’s Environmental Law Clinic — who sued Berlin chicken farmer Alan Hudson for water pollution violations. The judge politely denounced the environmental group that had sought to punish Hudson and in the process drive big poultry operators from the state.

While the fundamental intentions of the law clinic litigators were worthy — preventing farm pollution from flowing into Chesapeake Bay tributaries — the case they relentlessly pursued was deficient from the outset.

This should be a wake-up call for law school leaders.

Did an anti-pollution lawsuit turn into an “unjustified” — to use Gov. Martin O’Malley’s evaluation — persecution of a small family farmer?

Did the law clinic fail to conduct adequate due diligence of the facts before jumping into this flimsy case?

Did the state-run law clinic take to trial a dispute that could have destroyed the Eastern Shore’s primary industry?

Legal challenges of this nature, Nickerson wrote, must be pursued “responsibly and effectively.” The litigators failed to do either, he concluded.

That’s a pretty damning conclusion.

As a result, students in UM’s Environmental Law Clinic received an excellent education in how not to bring an anti-pollution lawsuit.

Nickerson found the case lacking in basic evidence. He called it “indefensible” that a well-healed national group “would not have conducted the straightforward testing and sampling that could have established [whether there had been] a discharge from the poultry operation.”

Instead, plaintiff lawyers substituted theories about how pollution might have made its way from chicken houses to a drainage ditch. When those theories crumbled, the judge wrote, the lawyers changed their line of reasoning midstream.

The case brought by the law school clinic and the Waterkeeper Alliance was so feeble that their star expert witness — who turned out to be a professional testifier for environmental groups — “came close to conceding that he did not know if there was any [chicken] litter” that could have contributed to stream pollution, Nickerson wrote.

The judge called it “astonishing” that a wealthy environmental group would say it was too costly to conduct extensive sampling at or near the Hudson farm. That refusal “borders on the indefensible.” It essentially rendered testimony from the plaintiff’s expert witness useless.

In his 50-page ruling, Nickerson found the Waterkeeper Alliance and the law clinic had “failed to establish that there was a discharge from the poultry operation.”

Nor could he find any evidence Perdue Farms Inc. was dictating how the Hudsons ran their Cornish hen-raising business.

The judge said the plaintiff’s real intent was to make Perdue responsible for pollution violations caused by its contract farmers. This, the judge reasoned, would force Perdue and other poultry integrators to “seriously alter if not abandon their operations on the Eastern Shore.”

The evidence presented, though, convinced Nickerson that Perdue “should be commended, not condemned” for its efforts to educate contract farmers on how to be good environmental stewards.

What an embarrassment for the law school clinic. This case never should have found its way into court.

It all started with a huge gaff: A gung-ho environmentalist spotted what she claimed was a pile of chicken manure on the Hudson Farm polluting a nearby stream.

Wrong. It turned out to be sewage sludge given to the Hudsons by Ocean City for use as crop fertilizer.

But that didn’t stop this zealot and plaintiff from pursuing an “‘end justifies the means’ approach,” according to the judge. Even after the state twice investigated accusations lodged against the Hudsons and found no pollution emanating from the chicken houses, the Waterkeeper Alliance continued its misguided crusade.

That should have been the end of the law clinic’s participation. In fact, Nickerson concluded it was obvious what caused the Hudson farm pollution — 3,000 pounds of daily cow manure.

Why didn’t the law school clinic reach that same conclusion?

UM’s environmental law program has a well-deserved national reputation, which now is at risk. When a respected federal judge calls your legal efforts ineffective and irresponsible, it’s time to re-evaluate and reassess.

The U.S. Army engages in a rigorous “lessons learned” self-examination following military actions. Shouldn’t the law school do the same?

No wonder rural legislators worry UM’s environmental law clinic may have lost its ethical compass. Its performance in the Hudson case should shake the faith of legislators who graduated from the law school, too.

Has the clinic become so intent on finding cases with national significance that it failed to see the deeply troubling flaws in the Hudson farm case?

Should stricter standards be applied before the clinic signs on to litigate a case? Is additional review and oversight needed by the law school or the university?

UM leaders have a choice when they testify before legislative committees this session: circle the wagons and defend what the judge called “indefensible,” or use the Hudson farm case as a “teachable moment” to make sure missteps like this don’t happen again.

Barry Rascovar is a political columnist and a communications consultant. He can be reached at brascovar@hotmail.com.