Louisiana Supreme Court

Geoffrey Paterson

has never been known as an environmental panacea. Indeed, its reputation has
long been as one of the dirtiest and most polluted in the country and with
good reason: no matter what is measured (air, water, ground), Louisiana leads
the nation in toxic emissions per capita. Uncoincidentally, Louisiana is one
of the poorest states in the country, and every year ranks at the bottom or
near bottom in quality of life statistics (e.g., infant mortality rate,
violence per capita). If that wasn’t enough, the state is home to Freeport-McMoran,
arguably the largest polluter on the globe. The state’s highways and roads
are the dirtiest in the nation.

One would think then that
the state would be making attempts to curtail its pollution problem. Yet as a
recent Louisiana Supreme Court decision showed, the state is not concerned
with curtailing pollution so much as it is concerned with curtailing any
attempts to derail business as usual. The state’s governor, Mike Foster, has
stated that a recent study showing that Louisiana’s toxic emissions are on
the way up is a good thing. More emissions mean more production; and this in
turn means more jobs. Foster used the analogy of a crowded highway—the more
cars there are means the more wrecks; similarly the more chemical and
petroleum plants there are the more emissions there will be. However, under
Foster the number and amounts of fines levied against these plants for
violations of environmental regulations has been on the decrease. Two years
ago, as Foster took office, the state narrowly rejected a proposition that
would have allowed polluters to police themselves and not allow the public
access to these “self-audits.” Foster also ridiculed recent protests by
members of Greenpeace in Baton Rouge to call attention to the state’s dirty

Last year the state Supreme
Court, bowing to pressure from the LABI (Louisiana Association of Business
Interests, made up mostly of chemical corporations), decided to change the
requirements allowing student law clinics in the state to represent pro bono
people in poorer communities, requiring the client to declare indigence and
make wages below the poverty level, and that they not have membership in any
statewide or national organizations (such as the NAACP). The net effect of
this decision was to shut the working poor out of the legal system. In a
decision last year, the Louisiana courts ruled that Shintech, a large chemical
corporation based in Japan, could not open its proposed polyvinyl plant in
tiny Convent, Louisiana, a plant that would have been one of the largest in
the world.

The legal representation
for the people of Convent, made up of student lawyers from the Tulane
Environmental Law clinic (based in New Orleans), was able to cite
environmental racism as a main reason for not wanting the plant located there.
Convent is located in Louisiana’s notorious Cancer Alley, a stretch of small
communities that line the Mississippi river from New Orleans to Baton Rouge
and have some of the highest cancer rates in the country. Most of the citizens
of these towns work and live adjacent to the many chemical plants and
refineries that dot the landscape here; ugly slate and sand colored buildings
that stick out in marked contrast to the surrounding natural beauty that is
unique to Louisiana. Many old plantation houses are still preserved here as
well, with most of the population in this area descended from the slaves that
once worked the fields around these houses. Because the poverty rate is so
high here it has been difficult for the majority of the people to get and
retain legal representation when trying to fight these huge corporations. Many
are reluctant to fight regardless, afraid of chasing out what amounts to the
only employer in town, a fact that most of these companies eagerly exploit.

As a result of the Shintech
decision Shintech was forced to shift its proposed site to Plaquemines parish
further upriver and to propose a much smaller facility. The residents there
are already fighting this proposal. The main result, however, of this David
defeating Goliath was the outrage it elicited from Foster and the business
community. Foster threatened Tulane with loss of state grants and loss of its
tax-exempt status, as well as any other state university that harbored such
“whackos” and “communists.” Then, the LABI (a major Foster
contributor) asked the state Supreme Court to review the criteria for student
clinic representation, which it did and made changes as already noted, the
most Draconian such criteria in the country. The net result was to make
another Shintech type victory impossible in Louisiana’s courts. Foster,
visibly gloating, thanked the court for reigning in these “outlaws.” In a
recent national meeting of trial lawyers in New Orleans, many participants
voiced their protests over the Supreme Court ruling. Foster’s response was
to urge them to direct their energies to Bourbon Street instead. Most
recently, the director of Tulane’s Environmental Law clinic for the past ten
years, Robert Kuehn, announced he would resign in May, apparently worn down by
a state determined to let big business have its way.

Louisiana’s recent
elevation of its war against its poorer citizens and environmentalists could
have national impact in addition to its effect on the state. Big businesses
that have had conflicts with states over similar issues can use Louisiana as
precedent to influence courts in a similar direction. If so then one more
weapon the poor of this country have to fight those who would profit at the
expense of their communities has been taken away. The people already have too
few weapons as it is.