Earthrise Legal Fellow’s first “live” court appearance
Our senior legal fellow, Haley Nicholson, made her first live court appearance in federal district court in Maine to argue for more transparency in government decision-making. She presented oral argument in a case in which Earthrise represents several public interest environmental organizations opposing an electrical transmission line cutting across fragile and ecologically important habitat in western Maine.
The fate of “deliberative process” documents in administrative record cases may not mean much to non-lawyers, but it is a hotly contested legal issue in federal courts these days. Earthrise is involved in multiple cases in which this issue is being litigated. Most recently, Haley Nicholson traveled to the other Portland – Portland, Maine – to argue the issue in front of the federal district court in a case in which Earthrise represents several public interest environmental organizations opposing an electrical transmission line cutting across fragile and ecologically important habitat in western Maine. Notably, Haley had already prevailed twice before in related arguments before the magistrate judge (over Zoom), one of which she argued as a certified law student before she took the bar exam.
The legal question involves whether the federal government can categorically exclude so-called deliberative documents from the administrative record that supports an agency’s decision. Traditionally, the government has been able to withhold deliberative documents but the agencies were required to list them on a privilege log so the parties and the courts, if need be, would be aware of them and could seek to overcome the privilege under certain circumstances. Now, the government is taking the position in all cases that it need not even produce a privilege log, making the existence of deliberative documents unknowable to all but the agencies. This would be a serious blow to transparency in government decision-making and to organizations seeking to challenge flawed agency decisions.
Unfortunately, a Maine district court judge overturned the magistrate judge’s earlier ruling after oral argument. We have asked the court to reconsider its decision and that request is pending. After this record issue is decided we will move on to the merits of the case. However the deliberative document issue ultimately turns out, Haley’s incredible oral argument skills were on full display in Maine, and she represented Earthrise, the law school, and our clients admirably.