Public interest lawyers for quality of life and the environment can't work for free by gimleteye

Although there is a strong tradition of public interest law in the areas of social services and human rights—one area of the law in Florida that is chronically under-represented for the public is quality of life and the environment.

Last night’s Oscar Awards presentation by Leonard DeCaprio reminded approximately 1 billion viewers of the service provided in this respect by the Natural Resources Defense Council whose attorneys are fully engaged in energy policy reform. NRDC has worked on local Florida issues of great importance—like the fiasco of the Homestead Air Force Base—and water quality and water rights for the Everglades.

But even though NRDC has more than 100 attorneys, it does not have a Florida office because of lack of funding. It would take several hundred attorneys to do all the work that is required to simply protect Floridians from the impacts of growth and overdevelopment that regularly turn local legislatures into blank-stamp permitting agencies, irrespective of the intent of local, state, or federal laws.

Big city law firms that encourage attorneys to do public interest pro-bono (ie. free) work will not take on quality of life or environmental causes because of conflicts of interest with existing clients. In Miami, sugar barons, rock miners, and production home builders are all significant income centers for a host of law firms. Personal relationships and entanglements are other reasons that powerful law firms shy away from challenging personal friends.

The premise of this imbalance is rarely questioned, though it goes both to the heart of what troubles our democracy and what we can do to fix it.


Experienced and savvy public interest lawyers for quality of life and the environment are scarce as hen’s teeth. In Miami, Dan Paul and Paul Schwiep come to mind.

While there are outstanding public interest lawyers in Florida dedicated to taking on environmental cases, they are either self-funded or chronically underfunded and understaffed.

There is Lesley Blackner, a Palm Beach attorney who initiated and is working tirelessly to gather signatures for Florida Hometown Democracy—a ballot measure that would, if enough citizens sign petitions, require amendments to local comprehensive master plans to be subject to a popular vote before being considered by local legislatures.

So threatened were economic interests by Ms. Blackner's proposal, that they mounted a successful state-wide campaign in 2006 to change the Florida constitution. The new constitutional amendment lifts the number of signatures required to amend the constitution in the future from a simple majority to 60 percent. That will protect economic interests from the likes of Ms. Blackner's clients, citizens trying to protect Floridian's quality of life.

In the second case, the public interest law center at Nova University—directed by Richard Grosso—is a good example. Mr. Grosso and his small team of attorneys routinely accept cases that would require whole departments of major law firms.

The best example of mismatched representation is the case against rock miners in West Dade unfolding in federal Judge William Hoeveler’s Miami courtroom. Judge Hoeveler has already ruled that federal government agencies violated the nation’s laws in granting certain permits to excavate lime rock near the Everglades and is the final stage of a remedy hearing.

On the public interest side, NRDC is joined by Eric Glitzenstein, one of the foremost attorneys in the area of law relating to endangered species, and Mr. Schwiep. The other side, representing a host of rock miners, has upwards of twenty attorneys in attendance. Although there is no published data on how much these interests have spent in total, a back of the envelope calculation would estimate costs of at least $15 million.

It may be tempting to dismiss a case like that against the rock miners as a soft legal issue, pitting forces of the law in matters that do not have life and death consequences for people—a kind of moral question or social nuisance depending on whose side one is on.

But only through this litigation was information disclosed that blasting and rock mining activity has introduced cancer-causing benzene into the drinking water aquifer that 2.4 million Miami-Dade residents use very day, year after year. Quite literally, this case is about life and death. It exposed facts and information that government agencies had been hiding in order to protect the activities of a very wealthy and powerful industry.

The only way that public interest attorneys can maintain the energy and effort for a case like this, that stretches out for years, is when final judgment includes the award of cumulative legal fees. Just the cost for copying documents can total tens of thousands of dollars. But cost recovery for fees is often the exception, and not the rule, and limited to very specific federal legal actions.

There are many, many actions where the involvement of attorneys and consultants represent marketing costs for corporate defendants and capital expenses for non-profits or citizens who band together as plaintiffs to protect their quality of life or lake, stream, or river.

And that is the problem in a nutshell. Corporations can write off legal expenses as a cost of doing business. For nonprofits that fund litigation, a lawsuit can break its bank account.

What you see today in South Florida—the traffic nightmares, the bad development, marine life dwindled to a shadow, or fish swimming around with lesions—is all the visible consequence of the lop-sided power of corporate interests relative to the public interest, exercised daily in local and state legislatures where public interest groups, like nonprofit environmental organizations, are reduced to yammering from the sidelines or, when they are ‘invited’ to participate in quasi-public forum, minorities.

Restoring some balance requires thoughtful consideration of providing significant additional funding to public interest attorneys.

Today, in Miami Dade County there are at least two economic infrastructure proposals on the table, where a certain advantage could be laid out to provide funding for attorneys to represent the public interest on quality of life and environmental issues.

The first is the proposal to use a decommissioned county airstrip in Northwest Dade for a big rock mine to help payoff the billion dollar cost overruns at Miami International Airport. A hefty percentage of revenues gained from tearing up the public property, to provide more aggregate to build more highways and buildings in South Florida, should go to the public interest to ensure that laws which local government tends to break, without any significant consequence, are followed.

The county has estimated that the revenue from digging out the airfield would amount to $300 to $600 million. If half that amount were dedicated to public interest law for our quality of life and the environment, it would represent a massive change in the balance of power in South Florida.

The second is a proposal detailed in the Miami Herald today: an on-again, off-again plan to initiate commercial ferry service to use Biscayne Bay as a by-pass for commuters who would pay for the privilege of avoiding the road-rage of commuting from southern parts of the county, downtown. That would be a fair percentage of the county’s wealthy lawyers, by the way.

We’d like to see a commuter tax that would provide funding to public interest law firms dedicated to the quality of life and environment of all Miami-Dade citizens. After all, if the ferry service is to be economical, it will entail exceptions from certain speed limit requirements meant to protect the endangered manatee.

The question of course is how to persuade public officials to embrace what amounts to a legal restraining device: using public funds to temper the inclination of legislatures to do good for corporate interests that are bad for the rest of us.

It may be an outrageous idea, but the inequities that we have been left with in Miami-Dade and other parts of Florida where the landscape has been slashed and burned by “free” markets, the result is even more outrageous.