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Environmental Law

Coastal Living

A look at a lifetime of practicing environmental law.

By Jim Blackburn

Construction Considerations


When I started law school in 1969, there were no classes offered on environmental law at the University of Texas or most law schools in the United States. During my law school years, the first of a series of environmental laws were passed; an environmental law course was subsequently offered by Professor Corwin Johnson and I took it. After that, I decided to become an environmental lawyer, a decision I have never regretted.

Environmental law began with the passage of the National Environmental Policy Act, or NEPA, of 1969, an act that created the environmental impact statement and restructured the federal government to focus on the environment. NEPA was rapidly followed by clean air, clean water, endangered species, and hazardous waste laws, among others, followed in 1980 by superfund legislation and strict liability for hazardous substance releases. Each of these laws generated its own subareas of practice, with waves of regulations followed by NEPA, clean air, clean water, and hazardous substance experts.

I chose to focus on representing the environmental side of the docket. As such, I have generally represented groups and individuals who are concerned about protecting their private property or some species or some habitat of particular interest. Through my practice, I came to know and love the Texas coast, which to this day remains a passion and my spiritual center. To practice law consistent with one’s spiritual foundation is rewarding indeed.

There are several events in my career that stand out. After law school I attended Rice University and received a master’s degree in environmental science—very useful for practicing a scientifically based area of law. After graduation from Rice, I worked for several years under a grant from the National Science Foundation Research Applied to National Needs program that supported research into implementing environmental law and planning in our society. This science training and subsequent research helped me understand the difficulties of this societal transition as well as the need for this change.

In 1979, under contract to the Texas Coastal and Marine Council, I wrote a monograph titled “The Texas Law of Drainage with a Case Study on Harris County, Texas.” This effort immediately led me to some renown (infamy) in the tricky area of Harris County drainage law, policy, and litigation. Over the years, I have been involved in many cases against upstream diverters and governmental entities, culminating with a major loss for my clients at the Texas Supreme Court in Harris County Flood Control District v. Kerr, a 2016 case determining that a high level of intent to flood downstream residents was required to warrant compensation under the Texas Constitution.1

This case makes an important point about my area of practice. You might not win, but you will surely lose if you do not fight for what you believe to be important—a key lesson from my career.

My first serious court appearance occurred with regard to the Wallisville reservoir, which was first proposed in the 1960s to be constructed in the delta of the Trinity River east of Houston by the Army Corps of Engineers. This reservoir became subject to the environmental impact statement, or EIS, requirement of NEPA, which became effective January 1, 1970. I was not involved in the initial case that led to the construction project being enjoined and a redo on the EIS ordered by Judge Carl Bue, of the U.S. District Court for the Southern District of Texas.2 However, I did become involved as second chair in the mid-1980s when the restudy of the reservoir emerged with a new EIS. The reservoir had been downsized from 20,000 acres to 5,000 but still had major impacts, and the federal district court found the analysis under NEPA to still be deficient, a ruling that was overturned by the 5th Circuit—a pattern to be repeated several times in my career.3 When construction was about to begin again, a nesting pair of bald eagles was found, and the project was again stopped under the Endangered Species Act.

In the end, the Army Corps of Engineers and the local sponsors determined that no reservoir was needed—that a relatively small, saltwater barrier would suffice. The important point of this experience was that there often are alternative ways to solve important problems other than the one originally conceived by sponsors or the government, and litigation offers a mechanism for revealing these less damaging pathways. Today, there is a wonderful nature reserve that is home to the largest cypress swamp wetland west of the Sabine River instead of a lake that would have, over time, killed that wonderful forest and the ecosystem of the Trinity delta. Ultimately this was a mythical win/win—a nice result to encounter relatively early in my career.

As mentioned earlier, environmental laws generate waves of regulations and then corporate response. During the late 1980s and early 1990s, the rules about toxic chemicals and disposal were changing and it was a time of multiple new permit applications that led to what has been referred to in some circles as the “toxics wars.” Toxic chemicals and hazardous waste disposal were largely unregulated until the 1970s, and it took until the mid- to late-1980s to begin to see the effect of these new regulations. The Texas coast was home to many industrial facilities that produced these wastes, and it was quite interesting and sometimes distressing to watch the regulatory system evolve. In 1984, Congress banned the land disposal of hazardous waste, meaning that one could no longer dispose of hazardous waste in holes in the ground. Overnight applications emerged to construct incinerators to destroy these wastes even as other provisions required a strict accounting of where the waste was generated and where it was going—a new reality for an industry not used to much regulation or supervision.

Environmental law often juxtaposes safer disposal practices against perceptions of threats to health and safety. There is nothing quite like the fear, anger, hostility, and concern of citizens who receive notices from a state agency stating that an application has been received from an applicant wishing to construct a hazardous waste disposal facility near their home. It is hard for most citizens to accept that such activity can or will be conducted safely, and it has led to some serious disputes over the years. Sometimes hearings were conducted with a thousand or more citizens. Some were chaotic and edgy. Some were peaceful. But they all were about the hard business of balancing public safety and commercial activity involving toxics. There is nothing easy about any aspect of this environmental law business.

More recently, I represented a group of citizens on the coast who sued the state of Texas in federal court, alleging the water management actions of the state killed 23 endangered whooping cranes.4 And after winning at the federal district court level, our victory was overturned by the 5th Circuit, and we were then denied cert by the U.S. Supreme Court. And then, the improbable happened—a state water agency and our citizen group signed a historic agreement to work together to try to provide freshwater inflow for the bay to keep the productivity of the bay alive during droughts to provide the blue crabs fed upon by the whooping cranes (and more fish for anglers) while meeting the water needs of the municipalities and industries of the Guadalupe River watershed. Today, we are addressing the future of water and cranes and are finding that we can indeed work together.

After 40 years practicing environmental law on the Texas coast, I am optimistic about our ability to solve problems. The availability of the legal system is a key aspect of this optimism. It provides a forum for equity—for fairness—a place for levelling the playing field. There is no guarantee that you will win as an environmental plaintiff fighting for the coast, and you may well lose, but you can take a swing and sometimes knock it out of the park.

Today, I fish a lot in my kayak. I put in at the site of a defeated copper plant—a site now preserved in perpetuity, and I watch the mullet swim within the marsh grass where a wetland fill project was defeated. I drive south from Houston past a landfill that was shut down because it was leaking dangerous amounts of explosive methane gas. I pass over a stream in the bottomlands of the San Bernard River that today has aquatic life that once was killed by poorly treated industrial wastewater, and I see the closed hazardous waste site that used to stink up the neighborhood with air toxics. And then I go see the beautiful wild whooping cranes of Aransas Bay that are doing better today.

There is nothing quite like legal action in defense of a place you love. I highly recommend it.TBJ

Notes

1. Harris County Flood Control District v. Kerr, 445 S.W.3d 242, 270 (Tex. App. 2013); aff’d, 485 S.W.3d 1 (Tex. 2015); withdrawn from bound volume, opinion withdrawn and superseded, 499 S.W.3d 793 (Tex. 2016); and rev’d, 499 S.W.3d 793 (Tex. 2016).

2. Sierra Club v. Froehlke, 359 F. Supp. 1289, 1320 (S.D. Tex. 1973); Sierra Club v. Callaway, 499 F.2d 982 (5th Cir. 1974).

3. Sierra Club v. Froehlke, 630 F. Supp. 1215 (S.D. Tex. 1986); rev’d, 816 F.2d 205 (5th Cir. 1987).

4. Aransas Project v. Shaw, 930 F. Supp. 2d 716, 725 (S.D. Tex. 2013).

 

ToedtJIM BLACKBURN
is a professor in the practice of environmental law in the Civil and Environmental Engineering Department at Rice University and the owner of both a law firm, Blackburn & Carter, and an environmental planning firm, Sustainable Planning and Design. Texas A&M Press has published two books by Blackburn—The Book of Texas Bays in 2004 and A Texan Plan for the Texas Coast in 2017. He also published a book of poems and paintings with artist Isabelle Chapman titled Birds: A Book of Verse and Vision.

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