A report by Earthjustice
What’s at stake
Our nation’s civil justice system is a crucial pillar of democracy, providing the primary avenue for accountability and redress for individuals of every political stripe and every socio-economic category.
The courts are where a local community can stand up to an oil company that poisons its waterways, where individuals can defend their right to free speech, where women can battle to protect their access to reproductive health services, and where people can band together in class action suits against corporate wrongdoing.
Now, members of Congress and the Trump administration are working to construct barriers to people’s ability to use the civil justice system to challenge wrongdoing.
With powerful special interests and wealthy corporations exerting influence over members of Congress and an administration that is hostile to the rule of law, the fundamental right of individuals in this country to access the courts is now under attack. Federal agencies under President Trump have already adopted policies that impede public interest litigation.
A suite of more than 50 bills in Congress would further restrict or erode the ability of people to have their day in court.
This report, “Access to Justice: Defending Our Country and Our Courts,” shines a light on some of the myriad ways Congress and the administration are trying to undermine the public’s ability to hold them accountable. It was compiled by Earthjustice with invaluable contributions from some of the nation’s leading civil rights, civil liberties, and consumer protection organizations.
This report showcases stories of people who faced off against rich and powerful special interest groups in fights for their lives, their health, their livelihoods and the places they love, and who were able to beat the odds because they were able to get into court.
Making the Case Against Mandatory Arbitration
Preserving Tongass National Forest
Mike Jackson, a tribal leader of the Kake Village in Alaska, participated in a series of successful lawsuits in the early 2000s to protect his village’s traditional use area and other pristine Tongass lands.
If H.R. 2936 had been law at the time, the Forest Service could have shielded its planning and lease sales from judicial review using its own internal arbitration, likely meaning that road building and logging would have moved forward without opportunity for independent legal scrutiny. As a result, thousands of acres of pristine old-growth rainforest would now be gone.
Making the Case To Protect Class Actions
Brown v. Lexington County et al.
A class-action complaint was filed in June 2017 by the ACLU on behalf of Twanda Marshinda Brown and others against Lexington County, South Carolina, on the grounds that the county was systematically and unconstitutionally operating a modern-day debtors’ prison by jailing hundreds of poor people “for no other reason than their poverty and in violation of their most basic constitutional rights.”
H.R. 985, which passed the House on Mar. 9, 2017, would severely restrict class-action type cases, and therefore the ability of victims of debtors’ prisons to seek meaningful remedies.
Making the Case for Keeping Access to the Courts Affordable
Fighting Pollution Injustice
The mostly African American residents of Rochelle, Georgia, were forced for years to live with raw, untreated sewage spewing into their yards and bubbling up through their drains. A year after a civil suit was filed over the city’s clear violations of the Clean Water Act, the citizens and the city negotiated a settlement.
If the “loser pays” legislation, H.R. 1179, had been law at the time of the Rochelle case, this case likely would never have been brought. As no lawyer can ever guarantee success on a claim, no matter how meritorious the case may be, “loser pays” provisions are a way to virtually eliminate litigation by the average person and low-income communities, further ceding access to the courts to wealthy and corporate parties.
Making the Case Against Restricting Patients' Rights
Medical Malpractice & Caps on Damages
Adriana Plevniak of Virginia is now legally blind in her left eye, after a doctor mistakenly used a high-powered laser, burning her retina. “I could hold my doctor accountable for her carelessness," said Ms. Plevniak, "But I was only able to do so because I had certain legal rights.”
If H.R. 1215 were to become law, it could prevent people from being fully compensated for the debilitating toll these mistakes have on their lives.
Making the Case to Protect Settlements
Mercury & Air Toxics Standards Rule
It has been long known that mercury emissions pose a grave danger to human health and fetal development. In 2011, the U.S. Environmental Protection Agency ultimately adopted critical health protections and finalized the Mercury and Air Toxics Standard.
Almost every federal regulation addressing hazardous air pollutants was adopted only after public interest organizations, public health groups and others sued the EPA for missing its statutory deadlines and EPA agreed to new deadlines in a settlement or consent decree.
Taking away an agency’s ability to efficiently settle cases means more money and resources focused on litigation rather than on the implementation of public protections. And it means more missed work and school days, more doctors’ visits, and more lost lives. This would be the effect of the current efforts to limit settlements by Congress and the Trump administration.
Make sure your elected officials read this report and its important message. Tell them to oppose any legislation that undermines our access to the courts. We must speak up to ensure that the courts—a cornerstone of democracy—remain open to everyone.
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Earthjustice is the premier nonprofit environmental law organization, wielding the power of law and the strength of partnership to protect people’s health, preserve magnificent places and wildlife, advance clean energy and combat climate change.
Because the earth needs a good lawyer.
Contributions and support for this report were provided by
For nearly 100 years, the ACLU has worked in courts, legislatures and communities to protect the constitutional rights of all people. With a nationwide network of offices and millions of members and supporters, we take up the toughest civil liberties fights. Beyond one person, party or side—we the people dare to create a more perfect union.
The Leadership Conference on Civil and Human Rights is a coalition charged by its diverse membership of more than 200 national organizations to promote and protect the rights of all persons in the United States. The Leadership Conference works toward an America as good as its ideals.
Public Citizen is a national non-profit organization with more than 400,000 members and supporters. We represent consumer interests through lobbying, litigation, administrative advocacy, research, and public education on a broad range of issues including consumer rights in the marketplace, product safety, financial regulation, worker safety, safe and affordable healthcare, campaign finance reform and government ethics, fair trade, climate change, and corporate and government accountability.