Can Preemption Protect Public Participation?

Abstract

This article argues that federal law would preempt state legislation to prevent law school clinics from helping clients participate in implementation of environmental laws. The article first discusses the role of public participation in the regulatory process. Next, it reviews the history of a 2010 legislative effort to de-lawyer the clients of the Tulane Environmental Law Clinic and shows that an effort to enact de-lawyering legislation is a disreputable tactic. Next, the article demonstrates that laws that would de-lawyer an environmental law clinic's clients would conflict with Congress’ mandate in environmental laws for enhanced public participation and would lack a reasonable relationship to a legitimate state purpose. The article then shows that attorney fees may be available to plaintiffs in preemption challenges to de-lawyering bills under 42 U.S.C. § 1983. The article concludes that, in the context of environmental law, state de-lawyering laws are not only unwise, they are illegal under the Supremacy Clause.