Environmental Law Section March 2000 Newsletter Articles

 

Meet Gary Davis
Interview conducted by Barry Turner

From the Chair by Ed Callaway

Gary Davis is an environmental law sole practitioner, who primarily represents citizens’ groups and environmental organizations. Barry Turner interviewed Mr. Davis on January 25, 2000. The interview has been edited for length.

Turner: What is your background?
Davis: I am a 1980 graduate of the University of Tennessee College of Law. I came to law school after working as an environmental engineer for about three years. I have a chemical engineering degree from the University of Cincinnati. My technical background has been very useful in practicing environmental law.

Turner: Where did you work as an environmental engineer?

Davis: I worked for what is now IT Corporation.

Turner: What does IT Corporation do?

Davis: It is one of the largest environmental consulting firms in the country right now. They do a lot of remediation work at Superfund sites. It is headquartered in California, but it has a major office in Knoxville. At the time I worked with them, we were doing a lot of water pollution work, helping companies do pollution prevention at the source.

Turner: Did your work as an environmental consultant lead you to go to law school?

Davis: Well, I thought I might want to be a lawyer. I decided I could accomplish more for the environment as an attorney than as an environmental consultant. I wanted to be more of an advocate for the environment.

Turner: Describe your environmental practice.

Davis: For the most part, I represent citizens’ groups. That has been both non-profit types like the Environmental Defense Fund, the Natural Resources Defense Council, and the Sierra Club, etc. And also local, more grassroots citizen organizations of people who band together to deal with a particular local environmental issue. But I have also represented local governments — counties, cities and states — all three in dealing with environmental issues. On very rare occasions, I have represented companies. Those have typically involved allocation of responsibility for environmental problems, such as Superfund litigation.

Turner: Is there a particular reason why your practice has focused more on citizen representation, rather than representing businesses?

Davis: Well, it is just because of what I believe in terms of my own practice. I am out to protect the environment and make sure we clean up the environment, more so than to defend companies, which may have been accused, rightfully or wrongfully, of polluting the environment.

Turner: Do you also work for the University of Tennessee?

Davis: I have a position that is an environmental research position as part of the Energy, Environment and Resources Center at UT. And I have been doing that part time since 1985.

Turner: Does this involve your environmental engineer skills?

Davis: It is more of a policy, research kind of position. I have been working for years on pollution prevention policies on a national and international level. The center that I direct is called the Center for Clean Products and Clean Technologies and we have about nine staff in that center who work with EPA grants and grants from foundations.

Turner: What would be an example of something the center does?

Davis: One project we are quite proud of is our work with the Saturn Corporation and EPA to develop software for automotive designers to use to bring the environment to the design process. This software allows them to see what the potential environmental impacts of their design choices are, whether it would be from driving the car, or from the production of the car in Spring Hill, or even upstream in the extraction of the raw materials or the processing of those materials.

Turner: How have you developed your representational relationship with the environmental citizen groups? Do you function as regular counsel for some of these groups, or has it developed based on specific cases?

Davis: It started in 1983 when I first began practicing in Knoxville after coming back from California where I had worked for the Governor’s Office for three years. I came back to Tennessee to establish an office of a public interest environmental law firm here called the Legal Environmental Assistance Foundation (LEAF). I had a partner at the time, who worked on surface mining issues, and I worked predominately on hazardous waste issues. We received a grant from a foundation to establish this office of LEAF. LEAF already had an office in Birmingham, Ala., at the time. The organization still exists. It is now headquartered in Florida. But at the time, this was before the Southern Environmental Law Center existed, we were the South’s public interest environmental law firm. There also was a LEAF office in Atlanta that developed about a year after we opened the one in Knoxville. So I started out as strictly a public interest environmental attorney doing work for a non-profit environmental group. We were able to continue that for about four years. And then after that, the funding dried up, and it was difficult to get funding, particularly for litigation. At that time, I started representing citizen groups or environmental groups on a fee basis.

Turner: What did you do during the three years you were in California after you graduated law school?

Davis: I worked on hazardous waste policy for the state. If you are familiar with the RCRA land ban, where Congress in 1984 banned land disposal of certain types of hazardous waste, we did that in California in 1982. That is what I worked on. The California land ban was then written into the RCRA land ban.

Turner: Why did you decide to go to California after law school?

Davis: I wanted to go out to the West Coast and try it for a while. This was Gov. Jerry Brown’s administration, and it was doing some good things environmentally. I was attracted to that administration, because they really wanted to do some good for the environment.

Turner: When the funding dried up for LEAF, was that about the time the Southern Environmental Law Center (SELC) was starting?

Davis: Yes. One of our disappointments was that SELC was created instead. At the time, we were seeking funding from some of the same foundations that ultimately funded SELC. But we did not have quite the connections that the founders of SELC did.

Turner: Do you practice environmental law outside Tennessee?

Davis: I am also licensed in California, although I am on inactive status. But early on, especially when I first moved back here, I did cases in California based upon my connections there. But more recently, my practice has been in the East, and typically the Southeast. Although, for a while I was doing toxic tort cases pretty much throughout the East. For a period of time, I worked with Sidney Gilreath and Associates here in Knoxville and in addition to my citizen group work, I did toxic tort cases with him. And we had cases from Indiana to Kentucky to Alabama.

Turner: What other attorneys in Tennessee, besides you, have an environmental practice primarily representing citizens groups and environmental organizations?

Davis: Joe McCaleb is one. The only other attorney I know who does plaintiffs’ work like this is Frank Fly. And I know he does not do it exclusively in his practice.

Turner: What are some of the challenges of handling environmental citizen group litigation?

Davis: The first challenge is always resources. I am typically up against wealthy corporations, or fighting the government, which has vastly more resources than my clients usually do. That’s the number one challenge. In the very first case I did, this is when we had LEAF, we had a total of $20,000 in grant money to open this office. The very first case I did was taking on the Department of Energy (DOE) in Oak Ridge to attempt to establish that their disposal of hazardous waste on the site was regulated by federal and state environmental laws.1 At the time, DOE claimed that the Y-12 Plant was exempt from RCRA and the Clean Water Act, because they were making bombs. So the first challenge is always resources.

Turner: When you are representing a smaller, grassroots citizen organization, are they more motivated by a “Not In My Backyard” approach, as opposed to when you are representing, for example, Sierra Club or Tennessee Environmental Council?

Davis: Well, I don’t even like the phrase “Not In My Backyard.” In every case I have had, there have always been very legitimate reasons for people to oppose an unwanted development in their community, particularly with landfills, which I have done a lot of work with. No one has ever come into a community and really made the case why the community should welcome a landfill with open arms. I just think that is a very legitimate response, and to call it “Not In My Backyard” kind of denigrates the legitimate reaction people have. And any kind of technology that has to be crammed down someone’s throat is inherently suspect to begin with.

Turner: In pursuing environmental lawsuits, have you primarily used the citizen suit provisions in federal law, or the administrative citizen complaint provisions of Tennessee’s environmental laws?

Davis: It depends on the type of case, of course. I have utilized federal citizen suit provisions whenever there is an existing facility, and there have been violations of federal environmental laws. I have a preference to be in federal court with these cases, even when there are also state law claims involved. Particularly, if I am dealing with a local industry that is powerful in its community.

Turner: Under federal law, after you have sent a 60-day notice letter, what has been your experience with the regulated entity coming into compliance, or the government taking action?

Davis: I have always been very puzzled by this. My experience is that nothing happens. I have always been puzzled why the company or violator doesn’t call me up and talk about trying to work this out and trying to come into compliance in order to avoid litigation. I have also been puzzled why neither EPA nor the state come out, and try to figure out what they can do to resolve the problem. Only in one instance have I ever seen any action taken by either the polluter or government agencies as a result of a 60-day notice letter. In that one instance, the Tennessee Department of Environment and Conservation issued an administrative order that was agreed to by the polluter prior to us filing our complaint.

Turner: Has it been difficult to establish standing in your citizen group litigation?

Davis: I have never had a standing problem. Either I have always had clients who were very clearly affected and didn’t have any problem establishing standing, or the other side didn’t think it was worth making that an issue.

Turner: In your federal citizen suit litigation, what has been your experience in obtaining injunctions from the courts?

Davis: Other than the LEAF v. Hodel case, which was the case involving the Y-12 Plant, and that was resolved on summary judgment motions, I have never had to take one of these cases all the way through trial.

Turner: Have you found the threat of civil penalties in a federal citizen suit, even though those penalties go to the federal treasury, to be effective in negotiating a settlement?

Davis: Yes, but this is kind of a limitation of citizen suits in general. I am in the process of negotiating a settlement in a case in Virginia right now dealing with a leaking landfill. We took that to mediation, and we are about ready to finalize the settlement. Sometimes you can achieve what you want to achieve more so by negotiation than by what the court can possibly order. In this particular settlement in Virginia, which I can’t talk about the details of, we will achieve more of what the citizens want than the court would have ever ordered. But that has been accomplished by the threat of significant civil penalties, particularly after the Laidlaw decision.

Turner: What impact do you think the recent U.S. Supreme Court decision in Friends of the Earth v. Laidlaw Corp.2 will have on your citizen suit practice?

Davis: I think it has preserved my citizen suit practice.

Turner: Was there some doubt about that after the Supreme Court’s Steel Company3 decision?

Davis: Yes, that and after the Fourth Circuit did what they did in Friends of the Earth. The Fourth Circuit opinion was just absolutely devastating for citizen suits. And had the Supreme Court upheld that, I don’t think there would have been very many citizen suits brought.

Turner: In Friends of the Earth, the Supreme Court not only addressed the mootness issue, it clarified the redressability issue with regard to civil penalties, and also addressed the standing of citizens.

Davis: I know. I loved the reversion to Sierra Club v. Morton4 there. I was hopeful that this would be the point where Scalia would be turned back on his attack on standing for citizen groups in environmental cases. And I really think the opinion did more than I hoped it would.

Turner: What has been the most significant environmental case or matter on which you have worked?

Davis: Probably LEAF v. Hodel,5 my very first case. Just in terms of the impact that had. I have had other cases that I felt have set precedent, and cases that have had an impact on my clients’ lives, but that one stands out among all. n

Editor’s note: Section members should express appreciation to Barry Turner for conducting this interview and the interview of Shelby County General Sessions Judge Larry Potter in the previous issue of the newsletter last fall. Barry only agreed to provide two interviews. Hence, I would very much appreciate a volunteer to conduct the interview for the next newsletter, or, even if you are not interested in actually doing the interview, any suggestions as to topic and prospects for interviews would also be appreciated.
A fascinating topic in the interview is the discussion of the impact of the recent Friends of the Earth case. I provided footnotes to the citations to the key decisions mentioned in the interview. If anyone is interested, see two articles in the ABA Journal by Steve France; one article is before the Supreme Court decision and one is after the decision. These are:
(1) “ ‘What’s It to You’ ” p. 36, Oct. 1999
(2) “Rolling on the River” p. 39, March 2000

Also, see “High Court Hears Citizen Suit Case,” by Marcia Coyle, National Law Journal p. B -1 10/25/1999. Briefly, the Supreme Court reversed the Fourth Circuit Court of Appeals, which had dismissed this citizen suit case under the Clean Water Act as moot. The District Court had denied injunctive relief but had assessed a civil penalty.

The Fourth Circuit took a cue the Scalia opinion in the Steel Company case in looking at the element of redressability for the purposes of Art. III standing. The argument was that civil penalties payable to the federal treasury could not possibly compensate for individual harm to a plaintiff even if injury were assumed. Therefore, the plaintiffs could lose standing if only left with an assessment of civil penalties. In its opinion in January, the Supreme Court explained the difference between mootness and initial standing, and the court also rejected the premise that a civil penalty assessment would not meet redressability element of standing requirements. The opinion also touched on the requirement for “injury” as required for standing.

The case appears to have halted a series of decisions influenced by Scalia that have narrowed citizen standing to enforce environmental laws. While not everyone will feel the elation expressed by Mr. Davis in the interview, this decision seems very important to the way that environmental law will be practiced in the future.

Endnotes
1. Legal Environmental Assistance Foundation v. Hodel, 586 F. Supp. 1163 (E.D. Tenn. 1984)
2. 120 S. Ct. 693 (decided Jan. 12, 2000, reversing 149 F. 3d 303 (4th Cir. 1998).
3. Steel Company v. Citizens for a Better Environment (CBE), 118 S. Ct. 1003 (1998)
4. 405 U.S. 727, 92 S. Ct. 1361 ( 1972)
5. See footnote one above.

This edition of the Environmental Law Section newsletter is timed to encourage everyone to attend the 29th Annual Solid and Hazardous Waste Conference in Gatlinburg on May 3 through 5. Through the efforts of Joe Sanders and Jim Wright, the section has obtained certification for 9 hours of CLE credit for various sessions at the conference. This provides acknowledgement of the value the conference has always had, and certainly makes it easier to explain why you need to be out of the office!

The Executive Committee has had an ongoing discussion with the staff at the TBA concerning the requirements for all sections under the TBA Constitution, including sponsoring an annual forum. In recent years, the Environmental Law Section has held its Environmental Law Forum every other year, alternating with the ABA/EPA Region IV conference in Atlanta. In order to satisfy our TBA requirements, however, we will be required to produce a program every year in the future.

As a section, we need to initiate a discussion about the best mechanism for doing so. Should we conduct a “Basics of Environmental Law” program, perhaps in conjunction with the TBA Real Estate Law Section, in the years of the Region IV conference? Should we seek to “officially” cosponsor the annual Gatlinburg conference, or the Region IV conference? TBA rules on such official co-sponsorship offer significant resources to deliver attendees at the conference, but require that conference proceeds be divided based upon the number of attendees each sponsor is responsible for recruiting to the event. This may or may not provide a stumbling block to TDEC, the ABA, or other potential cosponsors. These are more details than you really wanted, I know, but these are the nuances of life in the TBA.

We as a section have accomplished a great deal in the past year — the best attended forum in some time (and a profitable one); CLE credit for the Gatlinburg Conference; and the establishment of the listserver, which has facilitated local and statewide seminars, and an informal get-together in Gatlinburg. I fully expect that the coming year will provide even more service to members. n
— Ed Callaway, 1999–2000 Chair