Monday, September 11, 2017

5 Questions with Professor Helen Kang (Environmental Law and Justice Clinic-Golden Gate University SOL)

Another academic year has begun and it’s important to stay connected and learn from each other and about the impactful clinical work taking place.  Given the recent natural disasters we are seeing, not to mention continuing changes in the federal administration, one can’t help but think of the potential environmental impact.  I had the opportunity to interview Professor Helen Kang, the Director of the Golden Gate University SOL’s Environmental Law and Justice Clinic.

  1. You are the Director of the Environmental Law and Justice Clinic at Golden Gate University SOL. Please explain the types of clients you represent and the particular issues the clinic is focused on addressing.

Our clients are extremely diverse, but their goals are unsurprisingly similar. These clients want to improve the health and welfare of their communities by reducing toxic air, soil, or water pollution; and make their opinions matter by ensuring meaningful public participation. Our current and recent clients include grassroots groups without staff, let alone lawyers, to large environmental groups with legal resources in-house. We represent, for example, neighborhood groups from areas known to be most polluted in the San Francisco Bay Area. One such group is Bayview Hill Neighborhood Association headed by a grandmother who’d rather be spending time with her grandchildren but is instead leading the charge to make sure that her community doesn’t get hurt from ill-conceived development decisions that the famously liberal City of San Francisco ironically makes, without considering the adverse impacts to nearby residents. Then there are environmental justice groups working statewide like Greenaction for Health & Environmental Justice, for whom we filed a Title VI complaint with the U.S. EPA’s Office of Civil Rights and successfully obtained a settlement. It obligates California agencies to issue policies geared at equitable language access and criteria for hazardous waste permit issuance. For the same client, we just filed a petition before the Nuclear Regulatory Commission to revoke a federal contractor’s materials license for widespread fraud that compromised cleanup of radiological waste at a shuttered shipyard. We also represent traditional environmental groups like California Coastkeeper Alliance, Monterey Coastkeeper, Santa Barbara Channelkeeper, and other keeper organizations to tackle agricultural water pollution. We even represent a city and a trade association called Pacific Coast Federation of Fishermen’s Association. Overall, big efforts we are undertaking right now with these groups are about government accountability for agricultural water pollution and urban air and soil pollution. As you can see, the laws we use to accomplish our clients’ goals are just as diverse.

  1. Congrats on the recent CA Supreme Court win (Friends of the Eel River v. North Coast Railroad Authority, 222472 (Cal. Jul. 27, 2017)! This case involved years of hard work by the ELJC.  Briefly explain why this client and the issues raised were chosen for representation by the clinic, and perhaps some of the work the students were able to complete for the client.

This case establishes that California public agencies can’t rely on federal preemption to shirk their responsibilities under the California Environmental Quality Act. Our client in the case is Californians for Alternatives to Toxics (CATs). The published decision bears the name of the other petitioner whose case was consolidated with our case. Our clinic had worked with CATs in a federal Clean Air Act case in which we had obtained a better settlement than the one U.S. Environmental Protection Agency had negotiated with a pulp mill. After this case finished, CATs then was faced with fighting off a removal of a California Environmental Quality Act case to federal court – the client wanted us to become involved to move for a remand to state court. We did get the remand; from there, we thought the case would not take too long because there are tight deadlines in environmental review cases, and I thought it would be a great experience for our students. I was right and wrong! Students worked on the merits of the case and prepared me for oral argument. They were justices in moot court and grilled me. So I’d say it was a great experience for our students, working alongside our co-counsel, including the Stanford Environmental Clinic. But I was wrong that this would be a short trek. We’ve been working on this case for five years. The case went up to appellate court two times before it finally went to the California Supreme Court. Because the issue before the Court was preemption and not the merits of the case, we are still not done. We initially took this case based on toxic impacts to communities from a large rail reconstruction project, but the importance of the federal statute under which rail carriers are licensed really intrigued us as the case moved forward. Fossil-fuel interests like refineries and coal companies are trying to use the statute, the Interstate Commerce Commission Termination Act, to bypass local and state laws intended to protect communities. So along the way, we have become experts and have successfully worked on other matters to ensure that federal preemption is not abused.

  1. Recently, there have been many changes coming from the administration in Washington D.C. Have any of these impacted the work you do?  If so, in what ways?

Certainly, the rollbacks are devastating to communities everywhere. Environmental burdens unquestionably fall on people of color and low-income communities; they will most acutely feel the impact of the rollbacks. Just look at what’s happening now with climate regulation. Take a look also at Houston after the hurricane – in addition to the unprecedented damage to people and property, it’s wreaked havoc with pollution: initial reports are that more than 5 million pounds of air pollutants have been released (in addition to those allowed under permits). This environmental disaster is occurring against the backdrop of federal funding cuts affecting the very programs that are needed there on the ground now. So, certainly, the effect on us as people is undeniable, and the lack of morals and values being displayed in D.C. is a crisis. But I’d say that the clinic’s work is no different. We have always had our work cut out for us, even before this administration. Systemic and institutional denial of rights to the communities we typically represent has existed since the founding of this nation; and that’s what we are fighting. In fact, one of the most surprising things to my students is how deeply our institutions are complicit in environmental degradation. They can’t understand why agencies don’t do their basic job.

  1. As clinicians, we love to learn from what others are doing! Can you please share an insight, “aha moment”, or idea, that has helped make the ELJC successful and impactful not only to its clients but also to the students involved.

Three things that help make us successful are unremarkable but important. First, we accept complex cases. It’s difficult at times to bring students up to speed, but clients need lawyers in complex cases and it’s worth it educationally. The second is when we meet with clients, especially for the first time. We generally don’t limit the amount of time we sit with them. Nor do we have a strict agenda. We listen and listen for a long time. Our clients have a story to tell and knowledge to share. Many of our clients know so much about the environmental condition in which they live and the politics that influence their lives. Trust comes out of the relationship. But we have also made mistakes. It’s so tempting to fit in working on a matter just because a group desperately needs help. In those cases, we can be less successful long-term in problem solving. I think that just means that we need to be transparent with the clients in discussing the consequences of our limited involvement rather than denying services. The last thing that contributes to our success is having two young lawyers who come out of our own program to serve as graduate fellows. They go so far as to sit down and do research together with a student and provide extensive feedback on writing. They can do so much more than I can on my own. They are also able lawyers who do great work on our cases.

  1. Let’s talk about your research and specialization in legal education in Korea. This is definitely a focused, niche area of interest so I’d love to understand the tie-in with clinical work.     

I immigrated to the U.S. from South Korea as a 12-year old child with my family. I still read and speak Korean, although I wouldn’t be able to do a law lecture in Korean. So when our school was developing a relationship with schools there, I went and gave a lecture – in English – about clinical education. From that experience, I developed an interest in writing about clinical legal education there and elsewhere and have traveled to Egypt, Spain, and the Philippines on legal education projects. One project was with the ABA-ROLI and another was with the International Senior Lawyers Project. In Spain, I was so impressed that Universitat Rovira I Virgili in Tarragona was so forward thinking in considering environmental justice in its curriculum. In the Philippines, I saw that students were working several jobs going to school, a bit like my students here who have to make ends meet while they put themselves through school. These opportunities force you to think more deeply about clinical education. It’s sometimes hard to sit down and think about theory when you’re up against a briefing deadline. Traveling to less developed places also open your eyes to the privilege I have here. Honestly, I also love to travel.

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