Environmental Law
Coastal Living
A look at a lifetime of practicing environmental law.
By Jim Blackburn
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
JIM 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.