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Legislators deny threatening law clinic over expressway
Sunday, December 09, 2001 By Don Hopey and Bill Schackner, Post-Gazette Staff Writers
Legislators and development advocates were worried that money for construction of the Mon-Fayette Expressway could be lost to other projects when they asked University of Pittsburgh Chancellor Mark Nordenberg and Law School Dean David Herring to stop the school's environmental law clinic from representing opponents of the $4-billion toll road.
And as they asked Pitt to rein in the clinic, they reminded university officials that their Oakland neighborhood stands to benefit from the highway construction.
None of the legislators say they threatened to withhold state money from the school if the clinic continued to represent expressway opponents.
But Pitt, already stung by a legislative prohibition in June against spending state money on the clinic because of a fear it would represent anti-logging interests, moved quickly to distance itself from the clinic.
"I expressed concern to Nordenberg that the expressway was going to be further delayed by the clinic representing and giving legitimacy to the same folks who have been whining about it for years," said State Rep. Thomas Michlovic, D-North Braddock.
"If they want to oppose it, they have that right to go to court. But don't expect us to pay for it," he said.
Pitt gets about $180 million from the state and has an annual budget of more than $1 billion. The environmental law clinic's $107,000 annual budget is funded by a $2 million endowment given to Pitt by the Heinz Endowments.
Michlovic said he was concerned that the $2 billion in state and federal money needed for the unfinished 24-mile section of the highway from Large in Jefferson Hills to Pittsburgh could be lost to other road projects, especially the Southern Beltway, if the clinic mounts legal challenges based on an environmental impact statement that is still being prepared.
And Pitt would lose some direct benefits, he added.
"The university indicated to some it supports the expressway. It has a bad access situation at Bates Street and we are putting tens of millions of dollars into the project to build ramps to the Boulevard of the Allies, a major improvement," Michlovic said.
"I said, 'If you're for the highway, tell the clinic to back off.' They couldn't do that, but they could say they're not going to pay for it."
Charging for overhead
When the Legislature barred the use of state money for the clinic, Pitt Law School officials initially told the clinic that that would not affect its overall funding, but after the pressure on the Mon-Fayette Expressway, Nordenberg said the clinic would have to come up with $62,000 a year to cover overhead costs, an amount that would bankrupt the clinic in 18 months.
Nordenberg, through a spokesman, acknowledged that state legislators and other people approached him about the clinic's role in the expressway issue, but denied that the university had taken a position on the project.
"He categorically denies that the university indicated to anyone, publicly or privately, the university's support for the Mon-Fayette Expressway," Pitt spokesman Robert Hill said. "The university has not stated a position on it, has not taken a position on it."
"The university is still reviewing and having conversations with people regarding all of the issues regarding the Oakland aspects of the project," Hill said.
Michlovic said he never threatened to cut Pitt's funding if the clinic didn't drop clients opposed to the expressway, and described his relationship with the chancellor as "excellent."
Still, "I'm a legislator and that carries with it the capacity to change laws and influence appropriations," he said. "I'm not sure anyone was saying let's cut $10 million from [Pitt's] budget. But I and others called Nordenberg and expressed our frustration with this."
State Sen. Tim Murphy, R-Upper St. Clair, said he spoke to Nordenberg this summer about the clinic's involvement on the expressway, which is the second most expensive highway project in the nation after one through downtown Boston.
"I asked him about the environmental law clinic's function and brought up the Allegheny National Forest [logging] issue," Murphy said.
"If the clinic is working on environmental issues, that's fine. But if their work is more on how to be adversarial, that's something else."
State Supreme Court Justice Ralph J. Cappy, who chairs the law school's board of visitors, an advisory group, expressed similar concerns in an Oct. 2 letter to William Luneberg, the law school's environmental program director, that the clinic may have been engaging in "rudimentary social activism rather than law."
Nordenberg said Cappy had expressed concerns to him about "issues related to the management of the clinic," but "has never expressed a personal concern to me" about the expressway.
An ethics question
The state's Code of Judicial Conduct limits the kinds of groups that judges can belong to.
One of the code's provisions says that while a judge may serve on the board of an educational institution, "A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before him or [the organization] will be regularly engaged in adversary proceedings in any court."
Cappy did not return numerous phone calls about the issue.
In an Oct. 24 letter distributed to full-time Pitt faculty, Cappy said that neither he nor any member of the board of visitors received pressure concerning the clinic, nor did they pressure Pitt's administration to take action on the clinic.
The Mon Valley Progress Council lobbied Mon Valley legislators to go to bat for the expressway, and Executive Director Joseph Kirk isn't backing off the development group's demand that the clinic's director, Tom Buchele, be fired and that the clinic not represent Citizens for Alternatives to New Toll Roads, a group opposed to the expressway.
Kirk said he met in September with Herring, the law school dean, and G. Reynolds Clark, director of the university's government and community relations office, to outline those positions. He has scheduled another meeting with Herring and Reynolds for later this week.
Buchele's firing "was discussed at that meeting in September and nothing's changed," Kirk said. "Our concern before and our concern now is that the clinic and a university employee are engaging in action beyond the pale. I don't think you solve that problem simply by changing the clinic's address."
Herring said last week that the university was moving toward re-establishing the environmental law clinic as a separate, nonprofit corporation that would receive substantial endowment funds from the original grants that established the clinic, and that the director would continue to teach courses in the law school.
"I'm not surprised at Mr. Kirk's position based on our prior meeting," Herring said. "But there is no plan to fire Mr. Buchele. We're hoping to work out a solution from our end that allows Buchele to be as active as possible without incurring legislative retribution on the school or any other type of retribution or threat. We have been consistent in our support of both the clinic's work and its director."
At least one other legislator also feels the clinic is important.
Even though he is a supporter of the expressway, state Rep. David Levdansky, D-Forward, offered to fight against the state funding restriction for the clinic.
"I offered to help fight the funding amendment, but Pitt was quiet about it," Levdansky said. "I went to the school lobbyist and said we should oppose it, but they didn't raise a stink about it as much as they could have or should have. I was surprised."
Levdansky said Pitt needed an active, litigating environmental law clinic even though he disagrees with its client on the Mon-Fayette Expressway.
"There is an unbelievably significant need for such a clinic in Western Pennsylvania," he said. "I can't tell you how many times in my career that I've come across individuals or groups that wanted to battle on an issue but needed the kind of legal expertise that they couldn't afford and big business can."
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