Sascha Bollag is a staff attorney with Green Justice, a group of independent public interest lawyers coming together to provide accessible legal support on various social justice issues and train future competent, ethical effective attorneys. He previously served as staff attorney with the Greater New Orleans Fair Housing Action Center (GNOFHAC), where he litigated fair housing cases in federal court.
While “activist” may not be the first word most attorneys and others who work within the legal realm would choose to self-identify, activism is a crucial component of any movement for social justice, and especially critical in environmental justice issues. Therefore, attorneys and legal workers who hope to engage on such matters must embrace the role of activist, as wholly different from and in addition to client-advocate.
Perhaps the most important aspect of activism is that for maximum success in the long term, there must be a sustained, multifaceted effort, not just a ramp up at political or social high and low points, or solely as a response to disappointing outcomes. Activism needs to happen all the time. This can be for the purpose of actually winning a desired outcome in the near term—or to make enough noise about a particular issue to raise public awareness over time for future action.
Successful activism encompasses local, state, regional and national levels and includes four key components—litigation/legal representation, policy advocacy, legislative advocacy, and organizing/media. At the same time, any one of these strategies individually can be very effective for discrete issues, depending on the nature of the matter and specific goals.
Commonly, litigation and formal legal representation, such as in mediation or arbitration, are the most familiar approaches to legal advocacy, and they are certainly key elements of legal activism. These may be used either as a defensive strategy or an affirmative approach. Litigation/legal representation may take place on the local, state, or federal level. While engaging in litigation/legal representation is most often responsive, as when something occurs that prompts a lawsuit to be filed, it can be used proactively as well.
A currently pending lawsuit1 alleging the government must address climate change uses litigation as an offense. The suit seeks to require the government to make sweeping visionary changes in management, including proper regulation of fossil fuels and affirmative steps to address and slow climate change. In this instance, the suit is a means to call attention to an issue, encourage media attention and raise public awareness too. Ultimately, the hope is to make actual changes in law and policies as a result of the suit. However, this may or may not occur through the outcome of the actual case. However, the suit functions in an additional manner—it sets up the possibility of achieving the goals later as well, though other forms of community activism by making the public aware of the issues.
There are countless examples of important defensive/responsive activist litigation and legal representation. For example, in the Dakota Access Pipeline fight, various suits were filed in an attempt to stop the pipeline construction, and a legal collective developed to provide legal support, representation, and defense to pipeline activists.2 Similarly, a currently pending case is the final step in a more than decade-long battle against federal laws permitting fish farms in the Gulf of Mexico.3 Activism on this issue is an example of a multi-faceted approach (further explained below). After utilizing many activism tools, a number of nonprofit groups sued the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS) to prevent implementation of regulations allowing offshore aquaculture in the Gulf of Mexico, and set up the framework to do the same all around the United States.
One thing to note about litigation and legal representation is that often these can be actions of last resort—when all other avenues such as policy change, legislation, and organizing/media have failed or are perpetually stalled. Often this is because outcomes of litigation and legal representation are uncertain, based on the understanding and interpretation of judges who cannot be specialists on all issues. They may even be damaging to a cause. Bringing cases of first impression on an issue can inadvertently create bad precedent. As such, activism through other avenues first can be a smart approach. There are times, however, that litigation may be the best first strategy—for example on an emergency issue when immediate decision or action is necessary, to send a clear message to an opponent that the topic is one of very serious concern, or to alert media or the public about an important issue.
Policy advocacy is another activism tool, which can have a local, state, regional, or federal focus. Activism on matters of policy comes in many forms, from commenting on proposed agency rules, to initiating local referenda on particular issues. Groups and individuals regularly comment on proposed rules of federal agencies such as the Environmental Protection Agency (EPA), the Department of the Interior, and the U.S. Department of Agriculture (USDA). Often there are also opportunities to comment on rules under consideration by the state equivalents of these agencies. These rules can relate to a wide range of issues from air quality standards to mountaintop removal mining. The aforementioned ocean fish farming case also involved numerous agency rules and comments, public testimony during agency meetings, and public hearings of various agencies.
Policy advocacy can also include promoting or challenging executive orders—at the state or federal level—such as when activists succeeded in persuading President Clinton to sign an executive order requiring federal agencies to consider environmental justice in all of their policies.4 While such actions are not limited to lawyers and legal workers, those with a legal background are uniquely situated to be successful in such work. Lawyers and legal workers dedicated enough to master navigation of environmental regulatory agencies’ complicated rule-making processes are at a tremendous advantage.
Policy advocacy is not limited to influencing agency rule-making. It can also take other forms. For example, during the community battle in St. Tammany Parish, Louisiana, against a hydraulic fracturing (“fracking”) project, activists employed a number of legal tactics.5 Public opposition came in the forms of litigation, proposed state legislative changes, community organizing, and generating media coverage—including by leading protests and writing op-eds. These tactics were all in process simultaneously. Lawyers involved in the case also helped to organize a referendum in the parish to require the city council to take action to prevent local fracking. The referendum was essentially a back-up to various other actions, so, if all else failed, there was still a path forward for the public will to be done.
A third component of activism is legislative advocacy. This too, can be carried out at the local, state, and national level. It ranges from commenting on potential new laws or changes to existing laws, including through public testimony, participating in the actual drafting of legislation, or lobbying for or against particular laws. This could involve Congress, a state legislature or a city council. As with policy advocacy, lawyers and legal workers are uniquely positioned to engage in legislative advocacy, thanks to training in statutory construction, design, and interpretation as well as ways to research legislative history and intent. Simply having a firm grasp on the law-making process is a boon. A great many people, even some in the legal field, are not familiar with how statutes are created, enacted, and enforced.
Lawyers and legal workers regularly provide testimony to legislative bodies at all levels on a wide range of prospective legislation, on issues as different as the creation of marine sanctuaries and waste management. Activists also regularly confer and collaborate with legislative staff to draft and revise bills. Relatedly, opportunities to combine policy and legislative advocacy occur frequently, as when one joins one of the many advisory committees organized to propose policies and statutes. For example, an Environmental Advisory Committee (EAC) has been established to make recommendations to a subcommittee of the New Orleans City Council on specific environmental issues, with an eye toward environmental justice. The EAC crafts proposed ordinances, resolutions, proclamations and the like, as well as offers policy suggestions for future city action. Lawyers, academics, and other legal workers are part of the EAC.
Perhaps the component of activism most often overlooked by lawyers is organizing. Lawyers often think that their time is better spent on other more law-focused activities like crafting legislation rather than working to rally the people to the cause. Organizing is absolutely critical in any push on environmental justice issues. It is organizing that results in floods of public comments to agencies or legislators, or attendees at meetings and hearings, all of which become part of the official administrative record and is required to be considered when decisions are being made. For example, organizing turned out people by the hundreds to public meetings throughout the Gulf to voice their opposition to fishery management plans in the fish farming case. Tens of thousands weighed in with the involved agencies and also with Congress when the latter was considering legislation on the matter. In the wake of overwhelming public opposition, Congress did not pass any law on the issue, despite entreaties from corporations and other powerful interests. Similarly, in the St. Tammany fracking fight, organizing turned out over a hundred community members to express their concern with the proposed project to the lead state agency. Eventually, the power of the people won and the oil company withdrew its proposal, despite already having won the right to move forward with the project through litigation. There were just too many challenges from activists on every front—litigation, policy advocacy, legislation, and organizing/media—for it to be worth the company’s time and money to continue as planned.
Finally, successful organizing often generates significant media attention, which can be an essential part of a successful activist outcome. Lawyers and legal workers are often skilled at media work too—because they know how to tell a persuasive story and depict facts in a light most favorable to their client. The key here is to be able to tell enough of your story to raise awareness and get the media to effectively report on your issue while not disclosing so much that you forfeit a future strategy. Activist lawyers can engage mass media by deploying their forensic skills on radio and TV, on social media, and newspaper op-eds. While lawyers and legal workers cannot do all of the organizing themselves, it is important that they be involved in it. They can often help to reframe complicated matters into more user-friendly language and otherwise assist with messaging.
Activism can seem daunting at first. It needn’t be. There are myriad ways to be an activist. Some organizations offer specific training programs for those eager to aid a cause. Becoming involved with local civic groups and nonprofits, from the local level to the national level, can provide an easy entry to activism. Once you feel comfortable as an experienced activist you may start to identify issues that are not being adequately addressed and help lead new efforts.
Social justice lawyers and legal workers should always think about how activism, as distinct from lawyering, can aid in achieving their social and political goals. They should resist the reflexive desire to litigate. Litigation can be an important tactic, but not always the most effective one. Harnessing all of these methods tactically, when situations call for them, will maximize a movement’s likelihood of success.
- Juliana v. U.S., No. 17-71692 (9th Cir. Jan. 4, 2016); see also Juliana v. U.S.—Climate Lawsuit, Our Children’s Trust, https://www.ourchildrenstrust.org/us/federal-lawsuit/ (last visited Feb. 6, 2018).
- See Dakota Access Pipeline Resistance Reading, Power Shift, https://powershift.org/ sites/default/files/resources/NoDAPLReadingListPDF.pdf (last visited Feb. 6, 2018).
- See Gulf Fishermen’s Association v. National Marine Fisheries Service, No. 16-01271 (E.D. La.).
- Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations, Exec. Order No.12898, 59 Fed. Reg. 7629 (Feb. 16, 1994); see also Albert Huang, The 20th Anniversary of President Clinton’s Executive Order 12898 on Environmental Justice, NRDC (Feb. 10, 2014), https://www.nrdc.org/experts/albert-huang/20th-anniversary-president-clintons-executive-order-12898-environmental-justice.
- See Julie Dermansky, Citizens Protest Fracking Permit in Louisiana’s St. Tammany Parish, DESMOG (Nov. 14, 2014, 3:46 PM), https://www.desmogblog.com/2014/ 11/14/citizens-protest-fracking-permit-louisiana-s-st-tammany-parish; Robert Rhoden, Helis Oil Abandons Fracking Project in St. Tammany Parish, The Times- Picayune (Sept. 20, 2016), http://www.nola.com/environment/index.ssf/2016/09/ helis_oil_abandons_fracking_pr.html.