When a court decides on an issue in a case, their written opinion contains the reasoning and resolution for that issue. As a law student, I read dozens of such decisions. Sometimes, court opinions are clear. But more frequently, as many law students across the country will tell you, they can be difficult and arcane. The most challenging sort, however, are the decisions where the law is clear, but the outcome is unfair or illogical. Without the ELI Pro Bono Clearinghouse’s intervention and connection, a case involving the Delaware Community Benefits Agreement Coalition (DELCBAC) and the Port of Delaware, Reed v. Delaware Department of Natural Resources and Environmental Control, may well have fallen into this third category.
The Port of Delaware is considering an initiative to revitalize the port, but the project could endanger the surrounding community. The activities that occur in marine ports can make them incredibly toxic areas. The DELCBAC observed that the revitalization had the potential to create devastating side effects for the majority-minority population living there. So, it challenged the permits for the project and sought evaluations and guarantees throughout the process. Yet the DELCBAC did so without the aid of an attorney. Because Delaware requires environmental justice groups (but not individuals) to have an attorney if they want to contest permits, the state invalidated the DELCBAC’s efforts, citing lack of standing--legal parlance for lacking a connection or an interest in the legal issue at hand. The illogical result of this decision? A community of residents, business owners, faith organizations, and others were denied the chance to fight a development that was taking place in their own backyard. They needed a lawyer but getting one would be especially difficult.
I spoke with Jeffrey Richardson, the chairperson of the DELCBAC, to better understand the situation. “There is a salient connection between Delaware and corporations,” he explained, and “the state receives a substantial revenue stream from these companies.” Because the DELCBAC is a nonprofit and lawyers are never cheap, the group needed a lawyer to take the case pro bono. But most of the Delaware bar was unwilling to take a case against one of the large companies incorporated there. And while individuals do not need attorneys to voice their concerns about permits under Delaware law, it is significantly harder and more expensive for an individual to go it alone. A collective may have the resources and bandwidth that a single person may not. Richardson believes the state is aware of this conundrum yet it nevertheless “forces individuals into an unwinnable fight.”
Enter the ELI Pro Bono Clearinghouse. “Every community deserves legal support,” says Scott Badenoch, a former visiting attorney with ELI who founded the Clearinghouse. Comprised of the environmental bar, students, and law clinics, the Clearinghouse serves as a nexus to connect communities who need legal services to legal professionals who can give it. The Environmental Law & Natural Resources Law Clinic at Widener University Delaware Law School, directed by Prof. Ken Kristl, answered the pro bono request, helping the DELCBAC attain standing. This result was an affirmation of the Clearinghouse’s mandate, as well as a step towards ensuring that every group has access to quality legal representation regardless of their means. Mr. Richardson told me that standing by itself was monumental. “It sets a good precedent for other groups in the state and country,” he said. Both he and Mr. Badenoch were thankful for the outstanding work of Professor Kristl and the clinic, and both hope that others will join the Clearinghouse’s effort to make environmental justice attainable for everyone.
There is an important distinction that I think is relevant to this case. Let us imagine that the DELCBAC never challenged the revitalization project. The Clearinghouse never got involved, and standing was never debated. Instead, the community waited until after the port’s activities polluted the air, water, and soil. Then, finally, the DELCBAC sought legal damages via toxic tort or perhaps a negligence cause of action. This method of environmental justice is common, and it does work. But it is reactive. Here, the DELCBAC chose to be proactive. With the standing issue behind it, the DELCBAC can now focus on reaching a community benefits agreement (CBA) that honors their needs and establishes critical measures to keep the environmental impacts at a minimum. CBAs are legally binding and enforceable, and securing one would be big for environmental justice. If a community like the DELCBAC can get a corporation or agency to agree to favorable terms, then a breach of those terms will more often result in a win for the community. In time, corporations will be incentivized to avoid breaching their contracts. By using pre-established law to its benefit, environmental groups can more efficiently advocate for the planet and the communities who live on it.
I titled this blog after a slogan used by a DELCBAC member. It was inspiring, and I felt that it was the perfect backdrop for this story. Having initially been denied standing, the community was not even allowed to fight. The Clearinghouse and Professor Kristl’s clinic helped changed that. Now, they can fight. And the slogan should tell the rest of the story.