"How Can Citizen Groups in Rural Communities Protect Their Environment and Quality of Life Through the Courts When They Lack the Financial Ability to Retain a Lawyer?"
I. Introduction
Launched as a Program to assist rural organizations unable to afford legal counsel in environmental cases, the Grassroots Litigation Support Program area has become one of the Fund's most popular service delivery areas. The Grassroots Litigation Support Program provides several layers of litigation support to requesting organizations. The first layer consists of attempting to locate pro bono or low cost legal counsel who can litigate on behalf of the organization. If that attempt fails, the second layer consists of consideration by the Fund concerning the acceptance of cases for direct representation by Fund attorneys. If the Fund's capacity to carry out direct litigation is limited, then the Fund assists the organization in bringing suit without an attorney.
II. Maximizing the Limited Resources of Public Interest Lawyers: Creating a Pool of Affordable Environmental Legal Services and Assisting Organizations to Litigate Without Attorneys
Assisting citizen and environmental organizations unable to afford legal counsel to both locate affordable legal assistance - and to litigate in Courts and within agencies without attorneys - is beneficial to the public interest for a variety of reasons. First, it allows the small number of public interest law firms to become more effective by partnering with other law firms, and by teaching groups to litigate certain cases on their own without legal counsel. Recognizing that only approximately two hundred (200) full time public interest litigators exist in the United States, it is essential that the public interest bar begin to explore creative ways to deliver legal assistance through partnerships and by encouraging and supporting litigation brought directly by citizen groups.
Second, pro se assistance allows suits and permit appeals to be brought in federal and state courts at affordable cost to litigants. Too often, in the U.S. legal system, environmental and citizen lawyers are beyond the reach of citizen organizations and individuals acting in the public interest. Given that an average "environmental" lawsuit now costs between $50,000 and $75,000 to litigate at the federal U.S. District trial court level with hired counsel, it is increasingly important for public interest litigators to search for ways in which organizations can directly access courtrooms.
Finally, pro se assistance creates "citizen litigators" in a given geographical area who are then able to litigate future claims that arise in that area. Too often, well-meaning public interest litigators will lend considerable time, effort, and resources to individual cases, only to physically leave that region when the litigation is complete. This "flash in the pan" approach to the provision of legal services is avoided by a pro se strategy, which enables the group to concentrate on educating and organizing, rather than on locating low-cost or pro bono counsel to litigate on behalf of the organization each and every time a legal issue arises. In essence, these "citizen litigators" are then able to carry their knowledge of the legal forum into the next situation which demands legal action in their region - thus allowing the organization to become sustainable in terms of legal services.
A. Layer One of Assistance: Litigation Referrals Through Partnership Agreements with Pennsylvania Law Firms
To accomplish the first layer of assistance, the Fund maintains a referral network of pro bono and low cost legal providers throughout the Eastern United States. Depending upon the nature of the case and the degree of preparation work completed by the Fund, the Fund will meet with referral counsel to transfer completed work to them. The Fund then acts as a facilitator between the law firm and the organization to ensure that the attorney is integrated into the operations of the grassroots organization as it pursues litigation or permit appeals. The Fund also operates to defray the expenses of primary counsel by providing materials and expertise to them, on behalf of the organization. Occasionally, the Fund will also agree to directly litigate an appeal, if referral counsel is unable to do so.
For those cases in which plaintiff-organizations have financial resources, the Legal Defense Fund has entered into referral agreements with a well-respected environmental law firm in Harrisburg, Pennsylvania - Killian & Gephart, LLC - and several Pennsylvania environmental law practitioners across the state. Those agreements provide for the provision of legal services at reduced fee rates specifically for Legal Defense Fund referrals.
During Program Year 2001-2002, the Legal Defense Fund referred three organizations over to Paula McDermott, Esq. and Thomas Scott, Esq. of Killian & Gephart, Inc. for litigation. Those cases have since produced two clear victories - an overturning of a permit issued to a corporate factory hog farm, and the dismissal of the majority of claims filed by a sludge hauling corporation against a municipal government in North-Central Pennsylvania.
In early 2001, the Legal Defense Fund formally collaborated with Dan Brannen, Esq., a Centre County, Pennsylvania attorney interested in partnering with the Legal Defense Fund to provide services to rural municipal governments and community organizations. Currently a contract attorney with the Fund, Brannen supervises the Fund's Quality of Life and Local Control Caucus of Township Supervisors - an association of municipal officials launched by the Fund in 2001 - and provides Ordinance drafting services to municipal governments, and litigation services to community groups, in North-Central and Northwestern Pennsylvania.
At various times throughout the 2001-2002 Program Year, the Legal Defense Fund referred litigation-oriented inquiries to the University of Pittsburgh's Environmental Law Clinic, Robert Ging, Esq. - a Somerset County environmental law practitioner - and to Citizens for Pennsylvania's Future - a public interest law firm with offices in Harrisburg, Philadelphia, and Pittsburgh. During that Program Year, the Legal Defense Fund referred over a dozen cases to those lawyers.
B. Layer Two: Direct Representation of Organizational Clients
Since its formation, the Legal Defense Fund has handled cases on behalf of community organizations in Pennsylvania's Commonwealth Court and Supreme Court, in several U.S. District Courts in the Eastern United States, and in several federal Courts of Appeal. The Legal Defense Fund has also represented clients in the United States Supreme Court. Legal Defense Fund attorneys are licensed to practice in all federal courts and state courts in Pennsylvania, as well as the United States Supreme Court, two federal Courts of Appeal, and several U.S. District Courts.
Due to resource limitations, the Legal Defense Fund carefully selects cases for direct representation that have the potential to achieve systematic changes in the environmental law field. For example, in 2000, the Legal Defense Fund litigated a case in federal court on behalf of a farm couple located in South-Central Pennsylvania. The case dealt with the power of a state agency to condemn farmland for a highway project, and resulted in a Pennsylvania Supreme Court decision that limits the ability of state agencies to condemn farmland across the state. In 2001, the Legal Defense Fund began its litigation of a federal court case in Pennsylvania that promises to fundamentally alter the commitments of federal agencies to prepare comprehensive Environmental Impact Statements. In 2002, the Legal Defense Fund accepted representation of several groups in a case focused on enforcing Pennsylvania's Sunshine Act against legislative committees holding committee meetings dealing with environmental issues in areas closed to the public.
Over the past several years, the Legal Defense Fund has litigated over a dozen cases on behalf of community groups. Several, including those highlighted in the paragraph above, have resulted in widespread beneficial impacts for environmental protection.
Due to time and resource constraints, direct acceptance of cases is not always possible. Thus, the Fund has prepared and continues to maintain a comprehensive support network for those organizations who wish to proceed with litigation in administrative agencies and courts without an attorney.
C. Assisting Groups Unable to Afford Legal Counsel to Litigate in Pennsylvania Courts and Administrative Agencies Without a Lawyer
The Fund has recognized four specific legal arenas in which pro se litigation can be effective. These four legal arenas were chosen by the Legal Defense Fund based on several criteria, including (1) simplicity of legal issues, (2) ease of use of legal research tools to develop causes of action, and (3) ability of lawsuits in those areas to correct environmental degradation and reinstate citizen access to local governmental decisionmaking.
Application of those criteria to a range of environmental and public interest statutes allowed the Fund to select four legal areas in which pro se litigation can be effective. Those litigation areas are:
(1) Litigants proceeding in federal District Court and federal Appellate Court in lawsuits challenging the adequacy of Environmental Impact Statements (EIS's) under the National Environmental Policy Act (NEPA);
(2) Litigants proceeding in Pennsylvania's Environmental Hearing Board (EHB) to challenge the issuance of permits by the Department of Environmental Protection;
(3) Litigants proceeding in state court against the State Attorney General to revoke the charters of corporations that have a consistent history of violating environmental, regulatory and statutory provisions; and
(4) Litigants proceeding in Pennsylvania County Courts of Common Pleas to enforce the provisions of Pennsylvania's Sunshine Act; and appeals from adverse rulings of those County Courts.
Each of these four specifically identified program areas are the subject of four pro se "how-to" manuals published by the Fund. The Manuals are available in either hardcopy format from the Fund (for the cost of copying and mailing) or from the Fund's internet site at http://www.celdf.org under the Grassroots Litigation Support Program. The Manuals come complete with sample legal documents and common motion forms, along with complete directions dealing with the drafting of complaints, drafting of legal Briefs, and legal strategy.
More importantly, these Manuals are not intended for use in a vacuum - the Fund offers on-site, personalized assistance to organizations and individuals using the Manuals to ensure that the case is litigated properly within the judicial forum. Through this Program, the Legal Defense Fund also implements the Pennsylvania Bar Association's goal of stimulating legal assistance to individuals and groups litigating without an attorney.
III. Specific Support Offered Through the Pro Se Tier of Assistance
Direct support under the pro se tier of assistance consists of educating individuals and organizations through Legal Defense Fund-provided assistance with locating legal research tools and litigating. The Fund then works with the organization throughout the litigation process - reviewing documents, suggesting arguments, etc. Perhaps most importantly, the Fund teaches the local organization how to (1) locate legal resources, (2) research case law, (3) understand state and federal regulations, (4) draft complaints, (5) draft legal briefs, and (6) conduct oral argument at the conclusion of the case.
In addition to the direct support provided under the pro se Tier, the Legal Defense Fund has published several pro se manuals, which guide users through the litigation process in the four scenarios outlined above. These manuals are available through the Legal Defense Fund and through the Legal Defense Fund's web page, and include sample legal documents for each legal area, as well as strategy tips on each litigation area.