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The Planet

The Planet
November 1998 Volume 5, Number 9

See You in Court, Maybe

by Jenny Coyle

"The best lawsuits are linked to a campaign so that they not only accomplish your legal objective, but also increase the public profile of the issue."

A crowd of activists waving signs and chanting demands in front of a government building can change the course of history. A lobbyist's well-placed calls to a few powerful decision-makers can do the same.

And sometimes it takes a lawsuit.

Lawsuits are vital tools in accomplishing the Club's environmental goals. Recent legal successes have protected endangered species, preserved wetlands and cleaned up air and waterways.

But court battles aren't a panacea. They can be expensive and demand an incredible amount of time and energy from volunteers and staff alike. So how do you know when a lawsuit is the right way to go?

"The best lawsuits are linked to a campaign so that they not only accomplish your legal objective, but also increase the public profile of the issue," said Club Law Program Director Alex Levinson. For example, the Mother Lode Chapter's sprawl campaign in California included a number of lawsuits to stop sprawl in the Sacramento area.

"Lawsuits are sometimes a last resort, but if you've got a smart, well-developed campaign, a timely lawsuit might be one of the things you roll out early to galvanize public support to protect the environment," Levinson said.

Take the Georgia Chapter's work to get the state to set pollution standards by assessing the total maximum daily load (TMDL) of contaminants for waterways (see related story page 8). "No one was paying attention to TMDLs," said Sierra Club Staff Attorney Rebecca Bernard, who works with Levinson in the San Francisco headquarters. "But the time was right to push, so the lawsuits started coming, and now the Environmental Protection Agency and the states are paying attention. The lawsuits led the campaign."

Although the EPA was the defendant, activists knew the agency could use the court ruling as extra leverage to push states into compliance. "When Congress holds the pursestrings for the EPA and at the same time is responsive to pressure from the states, the EPA is cautious about hounding states for compliance. Our suits gave the EPA extra clout," said Bernard.

Of course, there are times when a lawsuit is not the best option. "If a lawyer says there's a 30 percent chance of winning, and the resource isn't a high priority, and you don't have a plan to use it to raise awareness, then it may not be a good activity for your chapter," Levinson said. "And if you don't have the resources to go all the way, then don't start. It's also a bad idea for the Club to join another organization's lawsuit just to bring in the credibility of the Club. Such cases often require the use of Club resources that may not be evident up front, and drain energy away from our own priorities."

Sometimes just the threat of a lawsuit can force change. After the EPA ruled that the San Francisco Bay Area had reached acceptable standards of ozone in the air and no longer had to meet stricter air-quality requirements, the Club petitioned the EPA to reverse the designation. "We believed the change in status was in error, and in our petition told the EPA we'd go to court if the designation wasn't reversed," Bernard said. "It worked, and Californians will breathe cleaner air because of it."

So what should Club activists take into account when considering a lawsuit? Levinson has a few suggestions:

--- Decide the specific goals. Do you want the suit to halt a project or just to modify it? To mobilize the public or to affect agency decision-making? To directly support a larger conservation campaign and, if so, how can the suit best provide that support?

--- Develop a campaign plan, including a media plan. What is the central message you would like to convince the media to highlight? For example, is it that the government isn't doing its job, or that the development or extractive project will harm the environment?

--- Determine the resources needed. What will the suit cost? How much volunteer or staff time will be needed to implement the legal campaign? Do our political allies need to be contacted? Would a courtroom victory ultimately be sustainable without a major political effort?

--- Assess the risks. Could the suit cost a lot more than anticipated? If we lose, is there a risk of long-term legal or political fallout? Are there political consequences to winning?

"When Club activists take the extra time to develop a legal campaign that supports their most important environmental priorities, they typically reap many extra benefits, including building their chapter or group and gaining support in their communities," Levinson said.

For More Information: Contact Alex Levinson, (415) 977-5695;; or Rebecca Bernard, (415) 977-5680;
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