Louisiana Supreme Court

Louisiana 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 waters.

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.              Z