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October 25, 2001

Controversy threatens funding of Pitt's environmental law clinic

Because Pitt's Environmental Law Clinic has angered state legislators by representing opponents of timbering in the Allegheny National Forest, the clinic could be out of money in about a year.

Last summer, lawmakers expressed their anger by adding a line to Pitt's state appropriation bill, prohibiting the University from spending tax money on Environmental Law Clinic personnel or operations during the fiscal year that ends June 30, 2002.

Chancellor Mark Nordenberg and Provost James Maher now are calling on clinic personnel to work with them on a "creative solution" to avoid further punitive action by the state. Specifically, they are proposing to transform the Environmental Law Clinic into an independent, non-profit corporation affiliated with Pitt and its law school.

But clinic director Thomas Buchele is dubious. "The University recruited me to Pittsburgh last year to be a law professor, not to run a public interest law firm, which is what the clinic would become under the arrangement they [the chancellor and provost] are proposing," Buchele said.

"I think it's really important that people look at deeds as well as words, and I don't think the University administration's deeds jibe with their words," Buchele added. "They say they have defended the clinic, yet they are now using this language by the state legislature as a sword against me and the clinic."

In response to the prohibition against spending state tax money on the Environmental Law Clinic, Pitt is charging the clinic for its administrative, overhead and space costs. Those costs, for which Pitt is billing the clinic monthly, are expected to exceed $63,000 this year. The clinic's current, annual operating budget is $130,000-plus, all of it from Heinz Endowment grants and other private funding sources.

At the rate it's being charged, the clinic will go bankrupt "in a little over a year," Buchele predicted.

He suggested that Pitt's actions are linked to the clinic's current representation of Citizens Against New Toll Roads, a group opposed to the Mon-Fayette Expressway. The proposed highway project would pass through Hazelwood and other city neighborhoods.

The executive director of the Mon Valley Progress Council (which supports the expressway project) has sent letters to Chancellor Nordenberg and elected officials, criticizing the clinic for its role in the controversy.

At an Oct. 17 public hearing in Hazelwood to discuss the expressway, Mayor Tom Murphy accused the Pennsylvania Turnpike Commission of pressuring Pitt to silence its Environmental Law Clinic. In an Oct. 18 letter to Nordenberg, Murphy blasted Pitt for allegedly caving in to that pressure.

According to Nordenberg, Murphy later apologized for his letter, saying he hadn't understood the context in which Pitt imposed its administrative/overhead charges on the Environmental Law Clinic.

"The timing [of the imposition of those charges] and their link to the Mon-Fayette Expressway is simply a coincidence," the chancellor said.

Nordenberg and Arthur Ramicone, vice chancellor for Budget and Controller, said Pitt did not begin charging the clinic until recently because Rami-cone's office was preoccupied in July and August — traditionally, its busiest months — with higher-priority projects following passage of Pitt's state appropriation.

Buchele questioned why his clinic is being billed for 100 percent of its administrative, overhead and space costs when the University gets only about 20 percent of its budget from the state (and that percentage is even lower in the law school, which relies to a larger extent on tuition money).

"If Pitt is prohibited from spending tax dollars on the clinic, why isn't that money being assessed in proportion to our share of those state dollars?" Buchele asked.

Ramicone said the clinic charges are not assessed in proportion to the sources of Pitt's overall budget. Rather, he said, they are based on the standard, cost-accounting formula for educational institutions spelled out by the federal Office of Management and Budget's Circular A-21.

"It's the same methodology we use in costing out overhead for all activities at the institution, including sponsored research," Ramicone said.

Buchele charged that Pitt's administration has barred his clinic from seeking additional foundation funds until the clinic agrees not to take on cases likely to anger Harrisburg lawmakers. Pitt law school Dean David Herring seemed to reinforce that impression in a recent e-mail to William Luneburg, who directs Pitt's academic program in environmental law.

Luneburg had asked whether the Environmental Law Clinic might seek endowment funds from the Hillman and R.K. Mellon foundations. In response, Herring wrote: "I think that if we could assure the provost that the clinic will not take on any clients that will cause controversy in Harrisburg and draft some guidelines that would ensure this, then we could get support for an approach to these funders. Short of this, I don't think we will get the green light."

But in an interview yesterday, Maher and Nordenberg said the real reason they won't let the Environmental Law Clinic approach the Hillman and R.K. Mellon foundations — or other local foundations that have supported the University over the years — is that Pitt's administration already helped the clinic get a $2 million Heinz Endowment grant last year, and now it's other units' turn to approach prime funding sources.

"They [the Environmental Law Clinic] are not going to get the green light no matter what they do," said Maher. "They're too far down on our priority list now. We have to prioritize which units can approach foundations," so foundations are not inundated with conflicting or overlapping requests from Pitt, the provost said. "That process is organized through my office and the Office of Institutional Advancement."

Maher said the Environmental Law Clinic was given high priority early in Pitt's current $500 million capital campaign, and many other units — including other School of Law clinics — now are awaiting permission to approach foundations.

The provost added, however, that he encourages all University units to seek money from new sources outside the region.

Nordenberg, a former Pitt law dean, pointed out: "It's a $500 million campaign. This one, small program [the Environmental Law Clinic] in one school already has received $2 million of that $500 million from one of our best foundation friends. I think those numbers are telling."

q Pitt's Environmental Law Clinic was founded last year to give law students practical experience on environmental cases. But the ongoing conflict between the University and state lawmakers over Pitt professors' involvement in anti-logging lawsuits dates back at least to 1997.

That year, law professors Jules Lobel and William Luneburg helped environmentalists file a lawsuit to stop a logging project in the Allegheny National Forest. Bill Slocum, then a state senator representing Warren County, declared that Pitt should not get "one more cent" of state money until it set policies governing faculty who do outside work — using University resources — that conflicts with the interests of state residents. Slocum noted that faculty working as private individuals used Pitt stationery in their pro bono work on the lawsuit.

Pitt administrators, law faculty and legislators worked out a compromise through which professors were barred in the future from using University resources for pro bono work. "But we always knew," Chancellor Nordenberg said yesterday, "that the underlying tensions were more basic, with people in that area feeling that their dependency on timbering for such basic purposes as funding public schools should not be interfered with by faculty members at a state-funded institution."

Last May, state lawmakers criticized Pitt's Environmental Law Clinic for representing the Allegheny Defense Project, a group opposed to logging in the Allegheny National Forest. The clinic subsequently dropped the case, and clinic director Buchele took it on privately.

"I played ball with the University administration on that," Buchele said. "I agreed to take the Allegheny National Forest case on my own, and I received assurances that the administration was very happy with me for doing so. Then they turned around and did this" — i.e., began charging the clinic for administrative/overhead costs.

According to Luneburg of Pitt's environmental law program, avoiding controversial cases will undermine the Environmental Law Clinic's mission.

"Tom [Buchele] and the clinic provide legal advice to environmental groups that can't afford to pay for representation. That's the whole point of the clinic, and the University has known from the outset the kinds of cases it would be taking on," Luneburg said.

Law Dean Herring defended Pitt's administration against accusations it is selling out the clinic to appease legislators and business interests. "The University administration has supported the clinic every step of the way," the dean wrote to Luneburg and several other law professors. "They have not backed off from defending academic freedom and the principles of the legal profession and legal education."

Nordenberg estimated that, over the last four years, Pitt representatives "have been involved in literally hundreds of interactions relating to activities of the [Environmental Law] Clinic and individual faculty members, ranging from phone calls with legislators to formal presentations at our annual appropriation hearings.

"I would doubt," Nordenberg continued, "if one could find an example of a university administration that has done more to protect a school and its involved faculty members in the face of demands for punitive action and forms of control that we believe are inappropriate."

The administration's defense of the clinic has cost Pitt financially, the chancellor said. For example, a $150,000-$200,000 project to create a biology database at Pitt's Bradford campus "simply disappeared, as elected officials from that area withdrew their support in light of their concerns about the University's environmental activities," Nordenberg said.

"But more importantly, the price has come in terms of opportunities that you can't successfully pursue when all of your governmental relations activities are focused on defending against attacks coming your way."

By this year, those attacks were coming not just from a handful of legislators in northwestern Pennsylvania, Nor-denberg said. "When the provost and I met earlier this year with legislators on this issue, there were at least 20, maybe 25 of them in the room."

Maher said he senses "a general assumption in the [Environmental Law] Clinic that we will handle this — meaning that Mark and I will go to Harrisburg and make everything all right." But Pennsylvania lawmakers seem "grimly determined" to pursue the issue, Maher said.

"We can't assume that the situation won't get worse, that the next step [by the legislature] won't be something more punitive than we saw this year," the provost said. "We need the clinic's help with creative solutions. It's a very difficult situation if they are not prepared to be helpful in finding a way to provide for the future needs of the clinic."

Maher said: "We've studied what's going on all over the country and we haven't found a state university yet that has been able to run an environmental law clinic totally in-house. But there are state universities with very good environmental law clinics that have been rolled into independent, non-profit corporations, units that became allies in running the kind of good environmental law program that we want to run through our law school."

Buchele replied: "I assume [Pitt administrators] are thinking of someplace like the University of Oregon, where the environmental law clinic was chased out of the law school and is now run as a public interest law firm. That's one precedent. But I would suggest that they also think about Rutgers, which has successfully kept a clinic in-house."

— Bruce Steele

Filed under: Feature,Volume 34 Issue 5

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