Highlights from the Environmental Law & Policy Clinic

September 19, 2011Duke Law News

Students and faculty in Duke’s Environmental Law & Policy Clinic presented their work at the 31st Annual Symposium on Sea Turtle Biology and Conservation held last April in San Diego, and clinic student Courtney Shephard, won an award for best student presentation.

Patrick Duggan JD/MA ’10, now an attorney with the Department of Justice’s Environment & Natural Resources Division, and Nicholas School of the Environment students Shephard and Jenna Wallis were all involved in the clinic’s work for the The Karen Beasley Sea Turtle Rescue and Rehabilitation Center in Topsail Island, North Carolina. That work led to a precedent-setting settlement agreement with the North Carolina Marine Fisheries Commission (MFC) and the Division of Marine Fisheries (DMF) in a lawsuit concerning fishing practices that caused the deaths of federally protected sea turtles.

“Three of the students who worked on the sea turtle lawsuit became more broadly interested in various aspects of sea turtle protection and turned that interest into three different master's projects for their degrees at the Nicholas School of the Environment,” said clinic Supervising Attorney Michelle Nowlin. “We were thrilled when we learned that all three of them had their research selected for presentation at this prestigious international symposium.”

Nowlin’s work on the lawsuit was also selected for presentation.

Shephard’s presentation of her paper “Revitalizing the U.S. Endangered Species Act” won the Archie Carr Best Student Presentation Award.

“I used the Gulf of Mexico and the South Atlantic shrimp trawl as a case study, and I wrote about how some of the federal agencies weren’t really following their own guidelines to ensure species survival,” Shephard said. “There were actually officials from some of those agencies at the sea turtle symposium and we had a pretty energetic exchange.”

Nowlin said that the students’ work with the Beasley Center allowed them a range of useful experience.

“It was important to focus on the science, and also to figure out how to translate that into a legal framework. As we entered into the settlement agreement, the students got a good look at the negotiation process,” she said. “I think the fact that their work was accepted for presentation at the symposium shows the caliber of work inspired by the clinical experience.”

Among the new rules adopted by the MFC as part of the May 2010 settlement:

• New rules were implemented regarding the size and type of gill nets allowed, and the time frame in which they can be deployed.

• The state adopted an enhanced “observer” program, with more observers on the water and a new certification program for volunteer observers.

• The agreement exempts Currituck Sound and parts of Albemarle Sound, where sea turtle presence has not been confirmed, from the new regulations, pending further scientific study.

• A formal advisory committee has been appointed by the MFC and the Beasley Center to advise state authorities on issues surrounding sea turtle protection. Duke Marine Lab professor Andy Read was selected to serve on that committee.

Nowlin’s symposium presentation provided an overview of the lawsuit’s objectives, the scientific research supporting the Beasley Center’s allegations, and a summation of the successful efforts in reducing sea turtle injury and mortality in the first year of the settlement’s implementation.

Formulating a carbon-trading blueprint

Clinic students also researched and developed a “how-to” guide for the forest carbon-trading process. Daniel Ribeiro LLM ’09, who now runs the environmental sector of the Ministério Público in Brazil, and Ryan Stoa ’11 worked with client Forest Trends, a nonprofit dedicated to promoting payments for ecosystems services in forest ecosystems, on the development and publication of the guide. Among other contributions, the two drafted a model contract for forest carbon trades. Forest Trends published the guide and presented it in December, 2010, at the Conference of the Parties to the United Nations Framework Convention on Climate Change in Cancun, Mexico.

Professor James Salzman, who has worked with Forest Trends for nine years, explained that demystifying the complex forest carbon-trading process “will hopefully reduce transaction costs and make these types of payments for ecosystem services more common.” Salzman, Duke’s Samuel Fox Mordecai Professor of Law and Nicholas Institute Professor of Environmental Policy, facilitated the partnership between the NGO and the clinic.

Ribeiro and Stoa researched the basis for such an agreement, and worked with the client to fine-tune it before the document was released and presented last December at the Conference of the Parties to the United Nations Framework Convention on Climate Change in Cancun, Mexico.

Students experience, firsthand, “unpredictability” of trials

As they neared the end of the fall 2010 semester in the Environmental Law and Policy Clinic, students learned of a significant development favoring one of their clients. On Dec. 1, the North Carolina Department of Environment and Natural Resources (DENR) revoked a certification essential to Alcoa Power Generating, Inc.’s renewal of a 50-year license to operate dams on the Yadkin River, resulting in suspension of testimony in an ongoing hearing. The clinic has represented the nonprofit Yadkin Riverkeeper for two years in its attempt to convince the state to deny Alcoa the certification.

Testimony and e-mails introduced by Clinic Director Ryke Longest and lawyers working on behalf of others opposed to the certification, persuaded DENR to officially revoke the certification. In a letter, the director of the DENR Division of Water Quality cited testimony that showed Alcoa “intentionally withheld information material to determining the project’s ability to meet the state’s water quality standards for dissolved oxygen,” as reason for the revocation.

Longest and clinic students from the Law School and Duke’s Nicholas School of the Environment have prepared and presented legal and scientific arguments to show granting the certificate violates the Clean Water Act and the North Carolina Environmental Policy Act.

Under Longest’s supervision, 3Ls Adrian Broderick, Greg McDonough and Andrei Mamolea appeared on behalf of Yadkin Riverkeeper in a September motion hearing. McDonough and Hillary Bunsow ’11 conducted direct examination of witnesses during the recertification hearings.

"We have had a lot of exposure to both trial preparation and the unpredictability that arises when you take all that preparation to court," said Broderick. "It has been exciting to watch the trial progress and to participate as new issues arise."

Rounding out the docket

Clinic students in the also successfully represented clients opposed to the building of an outlying landing field for naval aircraft in northeastern North Carolina and secured a superior court order mandating the environmental review of a proposed cement plant on the Cape Fear River.

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