The Complexities of Covering Environmental Court Cases

When environmentalists feel the government isn’t doing enough to clamp down on polluters, they often turn to ligation, filing suit to bring about change. The courts have been a tool for environmentalists to secure victories in all areas, from regulation of greenhouse gas emissions to more strict implementation of waste cleanup standards. Citizen suits are a common route. But some believe that trying these issues in court take too much time, cost too much money to litigate and can hinder progress. This week’s readings provide a brief overview of the history of environmental lawsuits and highlight a noteworthy case. How can journalists make sense of the complicated court system to provide information that’s most helpful to readers? Do you feel they’re doing a good job in this area? Or could more be done to better simplify and explain the issues? Do you think environmentalists are too quick to bring lawsuits and push for onerous demands? Let’s hear your thoughts on this, and the role that journalists have to play in covering environmental cases.

Here’s an article about the role litigation played in the BP oil spill: http://topics.nytimes.com/top/reference/timestopics/subjects/o/oil_spills/gulf_of_mexico_2010/index.html?8qa

And here are some thoughts to ponder when covering environmental litigation:

http://www.cjr.org/behind_the_news/epa_ruling_sets_an_ambitious_m.php

Here’s a paper written by one of our guest speakers:

https://ctools.umich.edu/access/content/group/53cb1a85-ea71-442b-9a46-f2048d4b523f/Class%20Readings/Environmental%20litigation/neilkagenpaper.pdf

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About jhalpert

Julie Halpert is a freelance journalist with more than two decades of experience writing for national publications, including The New York Times, Newsweek, CNNMoney.com, iVillage, Fortune.com, and AARP Bulletin. She currently contributes regularly to over 25 publications. She is also the co-author of Making Up With Mom (http://www.makingupwithmom.com/) and has recently started blogging for The Huffington Post. Her subjects have focused on everything from how auto makers will reinvent themselves following bankruptcy, to the viability of various environmentally-friendly technologies and how boomers will reinvent retirement. She also covers parenting and family issues for such magazines as Parents, Family Circle, MORE and Redbook. She has reported on the air for many public radio programs, including The Environment Report, Marketplace and Living on Earth. She also co-teaches an environmental journalism class in the University of Michigan's Program in the Environment and was a founder of The Society of Environmental Journalists.

25 Responses to “The Complexities of Covering Environmental Court Cases”

  1. I think it’s really difficult to be a journalist covering the environment and also all of the litigation involved because it forces you to cover a very broad area. Not only should you know how to write intelligently about the environment, but you have to get into legal aspects of journalism as well. And the courts can be so confusing and complex, with all of the laws and wording and differing interpretations of these. I imagine that these suits can become very hectic to cover!

    What I think helps me as a reader the most is when I can have more of an explanation than just the text. The New York Times article had a set of interactive pages covering each angle of the Deepwater Horizon issue, and that helped me really get a feel of what happened. When journalists (and news agencies) can use multiple ways of communication, like video and interactive maps, it increases the chance that the reader will understand.

    • I also agree with Peter. No longer are you specializing on Environmental speak, but you must now understand and interpret what is going on in a court room. The task becomes incredibly difficult and unless you took a few classes on law and court precedings, it is likely that you won’t understand what’s going on – just like your reader. Having an ally on your side, such as an environmental lawyer like the article, can be infinitely more helpful as you try to break it all down, for yourself and the reader.

  2. I agree with Peter that the use of multimedia aspects really can make a complex issue much easier to take in.

    These environmental litigation suits seem to be long and very ornate. Thus, I am wondering how journalists decide what pieces of a trial to use in their story to give the reader the most comprehensive report possible? Do they say it if the evidence seems to be favoring one side, or do they leave it to the reader to figure out? How does one stay unbiased in a case where someone has clearly done something wrong?

    I can imagine that this is a really tough issue to write about, and I am looking forward to hearing how it is done.

  3. As with many environmental and public health cases, it is difficult to always understand the issue because many things are technical. In the BP oil spill article, there were many examples cited from an affidavit regarding the guilty engineer’s role. He was identified as a “drilling and completions project engineer” which may make sense to some and not to others, but it allows the audience to see who is involved in certain issues. Generalizing an entire company can sometimes be more harmful than needed because at the end of the day BP sells a product to a market and without that market there can be many economical issues.

    So my point is that journalists should cover environmental issues but they should be careful in how they describe the actors in a situation so that they do not shed negative light on other related aspects unnecessarily.

  4. It’s not easy for journalists to make perfect sense of the legal issues that they cover unless they have a background in law. It is easy for litigation articles to get dry and boring very quickly. Journalists need to keep the reader informed, but they also need to sell copies, subscriptions, etc. For this reason, these articles and other legal coverage tend to focus on things like fines, charges, and other aspects of the issue that either have to do with numbers or money. These are things that readers and non-experts tend to care about most. So to ask if they are doing a good job in this area is hard to answer. The NY times article goes right in to talking about claims and pay-outs. It does an ok job of explaining the legal aspects to some extent, but it could be simpler and easier to understand. This is why it’s hard to say. Yes, they include the information, but it’s not too easy to understand. And yes, they include figures and costs, but how important are the actual numbers compared to the greater issue at hand? It’s a fine line to balance the hard facts as well as the interesting details.

    As for the environmentalists’ demands, I don’t think they are too quick to push for lawsuits and other cases. I may be biased as a PitE student, but these issues have been going on for decades and many of them haven’t been addressed until now. It’s hard to explain without getting too controversial and opinionated, but in short, changes need to be made. And it is the job of journalist’s to document this process.

  5. One of the things that struct me most was the journalists ability to convey the legal issues well. I know most people have already commented that it’s tough to relay legal information without getting too technical or hard to understand, however I think relaying court cases can be extremely difficult.
    Most court cases are huge amounts of paperwork and rarely turn into a courtroom drama. All the paperwork has to be processed before anyone ever appears before a judge. A good journalist needs to be able to process the information in all the preliminary paper and then relay it to the public.
    This also proves to be a difficult task when it comes to time sensitive work. Court case transcripts are not immediately available to the public as cases are being tried, so a journalist has a small window in order for the information to be timely.

    I suppose my biggest question would be concerning the responsibility to the journalist. Writing about environmental legal issues seems to be a very specific interest. A journalist would have to be well versed in laws, legal terms, and court processes as well as being well versed in environmental issues. Is it realistic to expect a journalists to have super specified interests or should journalists collaborate on articles that have multiple facets.

  6. I really liked the paper by Neil Kagan. He set the scene beautifully and the pictures were a great touch. However, the legal jargon made some parts difficult to read because I had no idea what he was talking about. I understood the gist of the legal procedures, but for someone not well versed in this sort of terminology, I felt like I was missing something important. The significance of the resolution of the court proceedings was especially lost to me because I had no idea what the quote from the court at the end of the story meant (“It seems to me in retrospect that is true, this is a preliminary injunction enjoining everything.”). How was I supposed to know that this particular statement from the court meant the forest was saved?

    Clearly, this paper would not the easiest read for the average person. My question is then, how do journalists translate legal jargon into language the average reader can understand? Is it better to explain every term? Or, should journalists pick and choose legal aspects to report on that make sense and do not necessarily require using fancy legal terminology? Are there some terms or court procedures that journalists can assume most readers will understand?

    • I appreciate your thoughts, Stephanie. Neil will be one of our guest speakers, so you should direct some of these questions to him. Keep in mind, though, that he’s an environmental attorney, not a journalist.

    • I wrote this piece originally for the most active participants in the Bald Mountain Road saga, to commemorate the events of 1983 twenty years later. Only a few of them were lawyers, but all of them had been intimately involved in the case. I then revised it with the intention of sharing it with law students, attempting to add enough explanation of the legal terms and procedures to make it comprehensible to them and, indeed, anyone. Based on your comments, I did not explain enough for people who are not lawyers or law students. I would like to hear your thoughts on what needed further explanation.

  7. When I took Env 475, environmental law, I was overwhelmed by the legal terms and the judges vague wording on rulings because it was not something a college kid who isn’t prelaw would have been taught. Journalists struggle to write for the average population and they have to decode the court terminology and simplify it. I may be a bias party because of my knowledge from my pervious course, but I think journalists are doing a good job. The New York Times article in print might be a struggle to power through, but the links provided on the digital article helped me read through it and while I know they are siting sources, it allows for a comprehensive look into the BP spill.
    Environmentalists have a lot to protect and have very little weapons to do so with. The lawsuits are one of the only ways that they can fight to protect what they care about, and while I think there are a lot of cases each one stands for something important. Also, because only within the last 50 years there started being court cases about environmental policy very little precedents have been set for the rules and regulations of many topics, and this is why we see the large amount of public rulings. With this being said, does it impact a reader to see too many stories about the environment in a technical and legal way rather than reporting about the good and beneficial changes we are seeing in the environment? Basically, as a reader would you prefer to read about a court case that mandates the use of better cleaning machines for factory pollutants discharge, or read about a factory developing a technology that helped the environment because they wanted to?

  8. I agree with Stephanie’s comment on the Kagan piece. He was able to engage me right away, but I too was a bit lost when he described the court decisions. Additionally, I don’t think his final quote had as much of an impact on me as a reader as he believed it would when he wrote it. He was clearly trying to build up suspense leading to that final question where he was able to save the forest, but I think the effect fell flat because I had no idea what he was talking about.

    I’m wondering if Kagan wrote this with a specific audience in mind (who would understand the legal terms), or if he didn’t realize an average person like myself or Stephanie might not understand everything. Would he have changed what he wrote if he knew ahead of time people wouldn’t know the legal jargon? Has he heard these same comments from other people who have read the article?

    • Alicia:
      Since he’s not a journalist, I don’t believe he wrote this for a mainstream audience, but those would be good questions to ask him.

    • Yes, I would revise the piece in light of your comments so it would be accessible to a lay audience, although it was never my intention to disseminate this widely. Apart from the activists in the case (who read a somewhat different version nine years ago) and the environmental activists I work with now (who seemed to understand it), you and your classmates are the only ones who have ever read this. But I have considered sharing this with students at the law school and maybe others, so I would like to know how I can give the punchline more impact.

  9. As the daughter of two attorneys, I’ve come to the realization that I am no stranger to legal jargon. However, I am well aware of the inaccessibility of information that this creates for those who do not speak this language fluently. I can also see how this problem might easily resonating with journalists.

    As seen in Curtis Brainard’s article on the EPA ruling concerning regulation of greenhouse gas emissions from automobiles, reporting on environmental litigation requires multiple perspective, interpretations, and analyses. Much more is required of journalists –not only must they report on a news worthy story, but they must also inform and educate their readers on the both legal and environmental technicalities while describing the intersection of these two fields.

    The legal detail in environmental litigation is endless, and even in Neil Kagan’s essay he waters-down the intricacies involved in the legal proceedings that took place in regards to the preservation of the North Kalmiopsis. My question then is where does a journalist draw the line between being a translator and reporting. Where do legal journalists fit in the spectrum of journalists? Better yet, where do those who report for organizations whose sole focus is either legal or environment—like the American Bar Association or Green Peace–belong? Is there reporting only meant for those who they write for?

  10. In my opinion, I think these nasty polluters are not getting anywhere near enough punishment for their damages to the environment than what they actually deserve. One can argue that environmentalists may be too quick to bring on lawsuits (as it may seem that bringing an issue to court is the easiest way to get something done these days) but one must also understand the greatly unequal power dimensions that exist between big corporations and pro-environmental organizations. It might be easy to say that the law should not always interfere with environmental disputes but for a much smaller organization, without as much financial backing, financial interest or public notoriety as a large multinational corporation, to have their voice heard- sometimes the law is a necessary platform.

    I felt that the Neil Kagan piece was very well-written, structurally easy to follow and I am so happy to see that finally one of our readings has colorful images to accompany the text. My only criticism of his article is that the terminology that he uses may be too complicated and technical for most people to understand, particularly when Neil mentions the several different Acts (e.g. “The National Environmental Policy Act”) and when he uses his lengthy legal terms (“affidavit”, etc.). However, this is probably more reflective of my lack of legal knowledge than anything else but I feel that journalists when covering litigation issues, tend to alienate readers by using overly-specialized language. Obviously, it’s hard to blame them though as legal knowledge is something you either have or don’t have and it’s hard to find neutral language to convey a compelling enough story on an innately complex issue. Furthermore, as the divisions in our society are seemingly exacerbated by this deep recession that we are all in, specialized journalism might have a role in aggravating these social differences as typically an expansive knowledge of law implies that the reader is well-educated and of a higher socioeconomic status. Thus when it comes to journalism that is seemingly targeted at a highbrow sort of reader- one might argue that the media works to stratify society. Do you agree? And is it the journalists job to worry about this when they craft a story?

    • As I said in my earlier comment, Neil is not a journalist. He’s one of our guest speakers this week, and an environmental attorney. Take a look at the comments he left earlier, as they’ll shed light on some of the remarks you made.

  11. I also took the Environmental Law course last semester, and really enjoyed it. At first I found the readings tedious and confusing with the different terminology, but after awhile they become part of your lexicon as a student in the course. The cases became much easier to understand and were more enjoyable to read; they were almost like stories with their own characters, plot twists, and resolutions. For this reason, I really enjoyed Neil’s piece, it was well written, kept my attention, and the pictures added a lot to the story and helped the reader visualize what was actually going on. I was wondering, do you think that it would be better for journalists to include legal terms, and provide a definition, to help the reader understand the aspects of the case or would it be better to exclude them and present more general information about the case? Does it have to be one way or the other or is there a way to strike an appropriate balance? Also, do you think that journalists should present the case like a story, and include more of a human element? Or would it be better to stick to the basic facts/general information about the case? Which would be better at attracting and keeping a reader’s attention?

    • As I mentioned in an earlier comment, I was considering sharing this article with law students. Since they are students, not lawyers yet, I tried to explain legal terms in lay language they (and other potential lay readers) would understand. For example, at the end of the sentence in which I first mentioned the “claim preclusion defense,” I described it with the idiom about getting one bite at the apple. I figured that I could then get away with using the legal term again without any further explanation. I think this is preferable to excluding legal terms. Why not educate the reader while informing her?

  12. I agree that the Kagen piece was well-written and I felt drawn in. The pictures and short paragraphs made it easier to stay interested in the story. I found it easy to follow, despite not knowing the meaning of some of the terms. While I have no background in law jargon (except anything I may have picked up on from watching Law and Order), I was still able to follow the story. I think writers can still use complex terms, just as long as they provide explanation or context clues so that the readers at least have some idea as to what is going on.

    I think that the audience for which a journalist is writing plays a big role in how much detail he or she will provide. Different audiences obviously will have different levels or expertise and knowledge. When writing for the general public, should a journalist provide extensive background information? or should the journalist assume that the readers either have some preliminary knowledge, or that they have access to search engines and can look it up on their own? Whenever I’m reading an article and I come across a term I don’t understand, I turn to Google. Should journalists assume that all readers have a tendency to do this?

  13. I think it is helpful when stories like Neil’s are written. Although he is not a journalist per se, giving a human narrative of the environmental issues, with real life characters, law suits, and implications, is a great way to emotionally connect to the reader. Furthermore, it can tug at the reader’s morals and conscience to form an opinion on the topic. In this story, it made me feel what a fight it is for people to stand up for the environment, and I vicariously experienced the joy that Neil did in finding out that he had prevented further destruction of the North Kalmiopsis.

    While this storytelling is a potent technique, it has qualifiers. Once again, Neil’s piece was not made to convince anyone of the severity and seriousness of environmental ignorance and destruction, but we can use it as an example of how writing may or may not influence the reader. For a person reading Neil’s piece that does not have a basic care for the environment, his piece might not be moving or raise his/her awareness. On the other hand, for a reader with invested in the environment and its preservation, Neil’s piece would be a reminder and a motivation to continue to strive for the environment. This is just one idea about how the same piece of journalism has variant effects based on the audience, and suggests that we need different styles of writing–in this case, not just stories, to convey issues and prompt reactions to them.

    If stories about environmental issues do breathe strength into some readers, and do not in other readers, this shows that the probability of people taking action for the environment lies within. In other words, protecting the environment starts with the individual, and his or her beliefs and values. Taking issues to court is fine, and we should continue to utilize our court system, but, the judge’s opinion will only reflect his or her individual beliefs. This is why I think that journalism should target people’s individual belief systems to prompt action at the individual level. If journalist’s focus on this objective, they can encourage more environmental protection on person at a time, and create a following of proactive readers.

  14. I agree with Stephanie on the Kagan’s piece, but now see that his paper was intended towards a certain population that would have an easier time understanding the technical terms and the background to the story. Although I wish I could follow it better, I appreciate the article because it put the entire court process and buildup of the different sides in form of a story – leading me easily through the different stages that need to be taken when addressing such an issue. So, although I did not understand many of the terms or complexity behind them, I gained an understanding through the context of the story. Because of the format and the pictures, I was much more engaged in the subject than I was when I tried reading the articles about it.

    This reminded me of the exercise we did in class, where we started off with a personal experience and then opened it up to a larger subject and audience. Can journalists do this more often, without losing their legitimacy? There is a fine line between storytelling and journalism, how do you know when you’ve crossed it?

  15. Does activism take the form of journalism? or do journalists sometimes act as activists in their writing? How does this affect the objectivity of the writing? What can a reader do to decipher the bias in a piece?

    Because the way in which sources are compiled, interviews are conducted and the publishing format all do affect the writing. I ask this because the pieces about environment litigation can be a widely accepted opinion that faces little public opposition but does fight large corporations. If a piece is written supporting the more controversial opinion it may be easily dismissed due to its angle? But how can these pieces better reserve their objectivity, and as a media how does journalism do the same?

  16. I also think that when a journalist provides some sort of visual reference, it really helps the read out. It can be hard as a journalist to tackle the environment and ligation when each environmental issue has many different proponents advocating for some aspect of an issue.

    That said, I think that activism can take the form of journalism, but it is more that the journalist would be the advocator/activist and journalism is his or her way of sharing ideas.

    However, I believe that the use of ligation is not all that bad. Sometimes the only way to get change is do it through the legal system. Journalists covering issues relating to the legality of the environment usually do a good job. Environmental law is, overall, an easier concept, than say malpractice law. Do journalists need to treat environmental law like reporting environmental science, in that, most likely, the reader may or may not have knowledge on what is being discussed?

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