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October 2018

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October 2, 2018

ELI Member Webinar

The rare Dusky Gopher Frog—a small frog species with a remaining population of approximately 250—has recently become the subject of national attention with the Supreme Court being scheduled to hear a pivotal case in October 2018. Weyerhaeuser Company and Markle Interests v US Fish and Wildlife Service will determine whether the Endangered Species Act of 1973 constitutionally allows the U.S. Fish and Wildlife Service to designate areas that a species does not currently occupy as critical habitat. The plaintiffs argue that this Obama-era rule is barred by the ESA because the land is currently uninhabitable to the frog, but the DOJ recently argued that the rule is “consistent with the Act's understanding that 'conservation' may require habitat improvements to promote a species' recovery.” Notably, the designation dictates what governmental acts can occur on the land, but not what private acts can occur, nor does it allow the forcible importation of a species. As more species join the endangered species list, this ruling could determine whether critical habitat designations will be based on historical geographic distribution, regardless of whether species may or may not currently inhabit it.

With a substantial possibility of greater limitations on nationwide conservation work, questions arise about the potential for public-private partnership efforts in conservation, habitat protection, and the interpretation of the Endangered Species Act. How can collaboration bring the for-profit sector into conservation efforts of territory previously unlisted as critical habitat? What would be required for private entities to reconcile their interests through partnerships with government agencies? This ruling could have lasting implications for the implementation of ESA, and more broadly, habitat conservation as a whole.

Expert panelists explored the case and its implications for comprehensive conservation and the continued feasibility of public-private partnerships in conservation. Participants gained insight into the legal history of conservation through the scope of the Endangered Species Act, the challenges of and potential for increased public-private partnerships, and judicial interpretations of the lower court rulings and dissents. What can be expected by the Supreme Court, from challenges to the proposal, to the designation of private land as critical habitat? This seminar dove into the legal structure surrounding conservation, consideration of relevant issues raised by the Dusky Gopher Frog’s fight for survival, and the challenges of effective conservation when it is perceived to conflict with private lands.

Lindell Marsh, Executive Director, Center for Collaboration-in-Governance (Moderator)
Jennifer Biever, Partner, Hogan Lovells US LLP
Mark Miller, Senior Attorney, Pacific Legal Foundation
Jason Rylander, Senior Staff Attorney, Defenders of Wildlife

ELI members will have access to a recording of this session (usually posted w/in 48 hours). If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

October 4, 2018

Cosponsored by ELI, Economic & Human Dimensions Research Associates, Association for Environmental Studies and Sciences (AESS), and National Council for Science and the Environment (NCSE)

Often hidden from sight, waste is an epidemic with impacts on both the environment and long-term economic prosperity. Americans generate approximately 258 million tons of waste per year, and such does not represent externalities arising from emissions of waste or materials associated with the production process. The inefficient use of resources, as illustrated by this magnitude of waste, presents a roadblock to both sustainable development and a truly prosperous economic system. The burdens created by these inefficiencies draw financial resources away from other social and economic opportunities. In an extractive economic model, business revenues are primarily anchored to the sale of limited commodities such as tons of coal, steel, and paper. While this economic model of extraction and waste product has been present in American infrastructure for centuries, there are a litany of new opportunities for alternative models, including ones already in use and those increasingly on the horizon. Examples of viable solutions include redesigning infrastructure towards a “circular economy,” where resources are reused for as long as possible, extracting the maximum value from their lifespan, followed by recovering and regenerating items that would be traditionally defined as waste.

Our panelists explored the future of American waste, the potential for transformative sustainable innovation, and the regulatory aspects hindering and helping to establish a circular economy. In doing so, the panel explored the possibilities of designing circular, waste-free economic, legal, and regulatory models to foster a cradle-to-cradle lifespan of material goods.

John Pendergrass, Vice President of Programs and Publications, Environmental Law Institute, Moderator
Mike Italiano, President & Chief Executive Officer, Capital Markets Partnership
John A. “Skip” Laitner, Principal & Independent Consultant, Economic & Human Dimensions Research Associates
Elizabeth Richardson, Principal, Beveridge & Diamond PC
Meagan Weiland, Independent Researcher, Economic & Human Dimensions Research Associates and Program Coordinator, Science Magazine

ELI members will have access to a recording of this session (usually posted w/in 48 hours). If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

October 15, 2018

Staying on top of the legal and policy developments in the climate change arena is no small task. As a special service to our members, the Environmental Law Institute provides a series of monthly conference calls with national experts on climate law and policy to keep you up to date and to answer your questions.


Topics addressed in this month's call:

  • Proposed 111d rule for power plants
  • BLM and EPA methane rulemakings
  • Second Circuit decision in the challenge to the zero energy credits
  • Cert denial in the HFCs case
  • Urgenda decision
  • On the heels of September's Global Climate Action Summit in California and Climate Week in NYC, what companies are likely watching this week and how it might influence corporate actions and strategies going  forward
  • IPPC report
  • Nordhaus Nobel Peace Prize
  • Exxon $1M to lobby for carbon tax
  • Hurricane Michael
  • Virginia joins the Transportation and Climate Initiative
  • California Air and Resources Board voted in late September to require that fuel producers “cut the carbon intensity of their fuels 20 percent by 2030, as part of a policy called the Low Carbon Fuel Standard”
  • The Climate Action for Alaska Leadership Team, convened in response to an order issued by Governor Walker in fall 2017, delivered its recommendations for an Alaska Climate Change Policy and Action Plan in September
  • California took a variety of steps at legislative, executive, and agency levels designed to help improve the resilience of the state and its natural resources to impacts from climate change
  • NYC Pension Funds announced its plan to invest $4 billion of funds into “climate-change solutions like renewable energy and clean water over the next three years, more than doubling its current investment”
  • U.S. still on track to meet around 2/3 of its carbon-emissions goals under the Paris climate accord, according to report
  • Several states, including New York, Maryland, and Connecticut, announced their plans to “phase out super-polluting hydrofluorocarbons (HFCs) and replace them with climate-friendlier coolants” in new refrigerators, air conditioners, and other products

Vicki Arroyo, Executive Director, Climate Center, Georgetown University
Michael B. Gerrard, Professor, Columbia Law School; Director, Sabin Center for Climate Change Law
Manik Roy, Senior Fellow, DEPLOY/US [formerly, ClimateWorks Foundation]
Robert Sussman, Principal, Sussman & Associates

ELI members will have access to a recording of this session (usually posted w/in 48 hours). If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

ELI Monthly Climate Briefings are made possible by the
generous support of our institutional members.

NOTE: This call/recording is for ELI members only. No comments may be quoted
or used without the express written permission of ELI and the panelist.

October 15, 2018

This program was co-sponsored by ELI, ABA Section of Civil Rights and Social Justice, and the Program on Environmental and Energy Law at American University Washington College of Law

The seminal Toxic Wastes and Race in the United States report was published by the United Church of Christ (UCC) thirty-one years ago. This report catalyzed the environmental justice movement by providing documented evidence of racial discrimination in toxic waste siting. Despite the UCC report’s impact, recent studies continue to highlight the disproportionate exposure of marginalized communities to environmental issues such as air pollution and climate change.

Building on the pivotal discussions in Parts 1 and 2 of this series, Part 3 featured a discussion led by the principal co-authors of the 1987 UCC report, Charles Lee and Vernice Miller-Travis, as well as leading professors Ezra Rosser and William Snape. Moderated by Kendra Brown, these knowledgeable experts explored the progress made and the current and future challenges facing environmental justice communities. It was a dynamic evening exploring the impact of the 1987 report, the role of students in facing current environmental justice challenges, and issue areas such as native sovereignty and fossil fuel impacts on environmental justice communities.

At the conclusion of the panel, a networking reception was held to further spark conversation and discussion of the key topics at the forefront of environmental justice.

Kendra Brown, Senior Director for Diversity, Inclusion and Affinity, Washington College of Law, American University (Moderator)
Charles Lee, Senior Policy Advisor for Environmental Justice, U.S. EPA, and principal author, Toxic Wastes and Race in the United States
Vernice Miller-Travis, Senior Consultant, Skeo Solutions, and Founder, WE ACT for Environmental Justice, co-author, Toxic Wastes and Race in the United States
Ezra Rosser, Professor of Law, Washington College of Law, American University
William J. Snape III, Professor of Law, Washington College of Law, American University

ELI members
will have access to materials and a recording of this event (24-48 hrs after the event). If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

October 23, 2018

The 2018 Award Dinner took place on Tuesday, October 23, 2018
The Omni Shoreham Hotel
2500 Calvert Street, NW
Washington, DC
Please contact Melodie DeMulling at 202-939-3808 or demulling@eli.org
if you would like to become a Star Sponsor of the 2019 Award Dinner!

 Lisa Jackson

The Environmental Law Institute (ELI) was pleased to present its 2018 Environmental Achievement Award to Lisa Jackson, Vice President of Apple’s Environment, Policy, and Social Initiatives, in recognition of her visionary leadership and outstanding environmental stewardship over a most distinguished career.

According to ELI’s President Scott Fulton, “Lisa has exemplified leadership, innovation, and commitment to sound science and rule of law at each step of her remarkable career. She has been a tireless champion for both sustainability and environmental justice, and has left an enduring mark on both the private sector and the public sector. Her work in greening Apple’s supply chain and in reducing the company’s carbon and natural resource footprint has been exceptional, reflecting the power and reach of business leadership in advancing environmental performance and stewardship.”

At Apple, Lisa oversees the company’s efforts to minimize its impact on the environment and climate through use of renewable energy, energy-efficiency measures, deployment of greener materials, and invention of new ways to conserve and repurpose precious resources. Speaking about Apple’s recent pledge to use 100% recycled materials in a closed supply loop for future fabrication of its devices, Jackson recently said, “I think there’s a business opportunity for people who are willing to rethink recycling. There’s incentive to you to get those resources back and work on re-using them.” And concerning Apple’s voluntary, but absolute, commitment to reduce its carbon footprint, Jackson said, "if we can do it, you should expect the same from every company."

“Lisa’s journey to where she stands now is truly remarkable,” Ben Wilson, Chair of ELI’s Board observed. “From humble beginnings, she rose to the highest levels of government and now stands out as a leader in the private sector, burnishing Apple’s brand with cutting-edge approaches to sustainable resourcing for products and packaging. She is a true standard bearer for private-sector innovation and commitment to environmental integrity.”

Born in Philadelphia and raised in New Orleans, where she graduated class valedictorian from her high school, Lisa studied chemical engineering at Tulane University and then Princeton, where she received her master’s degree. She began her career at EPA as a staff-level engineer, first at its headquarters in Washington, D.C., and then at its New York regional office, where she later served as deputy director and acting director of the region's enforcement division. After 16 years with EPA, she joined the New Jersey Department of Environmental Protection, where she ultimately became Commissioner. In 2008, then President-elect Barack Obama tapped Lisa to head EPA; she was confirmed by the Senate on January 22, 2009, the day after Obama took office.

As EPA Administrator, Lisa focused on reducing greenhouse gases, protecting air and water quality, preventing exposure to toxic contamination, and expanding outreach to communities to ensure environmental justice. It was on her watch that EPA made its “endangerment finding” for carbon dioxide and other greenhouse gases (GHGs), fulfilling the Supreme Court’s mandate in Massachusetts v. EPA, and opening the door to GHG regulation under the Clean Air Act. She also oversaw environmental and public health concerns during and after the Deepwater Horizon oil spill, including monitoring impacts on human health and aquatic life and assessing environmental damage.

Lisa joined Apple in 2013. In addition to overseeing the company’s environmental efforts, Lisa is responsible for Apple’s education policy programs such as ConnectED, its product accessibility work, and its worldwide government affairs function.


October 23, 2018

The 2018 ELI-Miriam Hamilton Keare Policy Forum

Our audience joined ELI and expert panelists as we embraced and explored this fascinating moment in time when divergent forces—private environmental governance, law, technologies, and communities—are coming together, and allowing us to harness their combined power in a new environmental paradigm.

On the first Earth Day in 1970, Sen. Edmund Muskie called for “A total strategy to protect the total environment.” At that time – and for several decades – the overarching approach was one of regulatory compliance, largely directed by government. Today, technology has enabled companies to improve their environmental performance and citizens to track it, while a connected global network has catalyzed knowledge-based economies. Companies are looking at environmental performance in more holistic ways than the regulatory structure demands. Citizens can access, collect, and broadcast data on environmental quality, whether or not this data is accepted for compliance purposes. What constituted a strategy fifteen, or even ten, years ago—analyze, plan, execute—no longer works in operating environments that are increasingly unpredictable, fragmented, and characterized by high rates of technological change, big data, crowd communication, young industries, and an incessant drive for competitive advantage. For example, science and technology are moving forward at such a fast pace that there is a gap between advances and society’s ability to process and manage the information, never mind establish meaningful controls.

Today, the parameters of a “total strategy” are at last coming into view. To create meaningful and effective environmental protection, the combined power of private environmental governance, law, technologies, and communities needs to be harnessed to hedge against uncertainties, build resilience and organizational flexibility, and reduce surprises. How should we institutionalize this new paradigm? How do we make better use of citizen-generated data? How can the voluntary commitments by companies be further internalized into algorithms that drive energy and environmental decisions in facilities and supply chains? How can law-based systems anticipate and prevent software tampering and manipulation? And, how do we embed environmental considerations into software design going forward? Instead of utilizing old business models, we need to step back, identify, and embrace new ones. This will require transformational leadership, an experimental mindset, an agile and adaptive development approach, partnerships spanning the public and private sectors, and above all, an openness to embracing a new environmental paradigm.

The ELI forum explored the intersection of private environmental governance, law, technologies, and communities.

Opening Remarks: Scott Fulton, President, Environmental Law Institute

Dave Rejeski, Director, Technology, Innovation and the Environment Project, Environmental Law Institute (Moderator)
Ann E. Condon, Visiting Scholar, Environmental Law Institute
Paul E. Hagen, Principal, Beveridge & Diamond PC
Dr. Adrienne L. Hollis, Director of Federal Policy, WE ACT for Environmental Justice
John Lovenburg, Vice President, Environmental, BNSF Railway
Michael G. Mahoney, Vice President, Assistant General Counsel, and Chief Environment, Health, and Safety (EHS) Compliance Counsel, Pfizer Inc.
Michael P. Vandenbergh, Director, Climate Change Research Network, Co-director, Energy, Environment, and Land Use Program. Law Professor, Vanderbilt University

ELI members who have logged in to the Members site will see below the materials and any recording of this session. If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

October 23, 2018

ELI 2018 Corporate Forum

Companies are facing increasing and unprecedented risks and uncertainty in the corporate governance of environmental, health and safety issues.  While companies are taking active steps to advance and demonstrate their initiatives to address environmental, social and governance (ESG) issues, financial regulators, customers, investors, NGOs, the media, and—increasingly—prosecutors are scrutinizing corporate disclosures, marketing claims, activities, and governance procedures and bringing concerns to the forefront of public debate.  Corporate ESG disclosures and activities—or lack thereof—increasingly are creating complex legal responsibilities across multiple layers of corporate governance, including board and executive oversight, front line auditing, and external engagement that are threatening significant liability and brand issues in the United States and abroad when not executed with abundant care. These trends are creating a heightened need to be deliberate, proactive, and precise with ESG activities and disclosures, and to ensure proper governance procedures are in place from the factory to the Board to avoid the risk of increasing scrutiny and liability. The focus areas extend to reporting on greenhouse gas emissions, energy efficiency, sustainability, environmental impact lifecycles, supply chains, human and worker rights, advertising, marketing, website and public representations, and corporate environmental governance procedures.

The Corporate Forum concentrated on the rapidly increasing focus on corporate governance of EHS issues, including the emerging risks and liabilities, insight from investors, NGOs, regulators, and prosecutors on areas of focus, lessons learned from recent experiences, and best practices to mitigate risks going forward. What are the responsibilities of corporate officers? What are the risks – financial (such as for remediation), reputational and legal? What are ways that companies can address those risks? How have customer, shareholder and investor demands, as well as laws, regulations and case law changed company performance and risk?

Cassie Phillips, Environmental Law Institute (Moderator)
Avi S. Garbow, Partner, Gibson, Dunn & Crutcher, formerly General Counsel, U.S. Environmental Protection Agency
Melissa A. Hoffer, Assistant Attorney General and Chief, Energy and Environment Bureau, Massachusetts Attorney General's Office
Neal Kemkar, Senior Counsel & Director of Environmental Policy, General Electric
Brendan McCarthy, Investment Manager, The Earth Partners LP
Lori Michelin, President and CEO, World Environment Center (WEC)

ELI members who have logged in to the Members site will see below the materials and any recording of this session. If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

October 29, 2018

ELI is hosting a series of webinars on the policy, practice, and science of stream compensatory mitigation. Webinar topics are based on the findings and recommendations of the 2017 report Stream Mitigation: Science, Policy, and Practice and selected in coordination with an Advisory Committee of stream mitigation experts. The series will cover a range of issues from assessing stream functions and conditions to restoration approaches and long-term success of compensation projects. This ten-part series is funded by an EPA Wetland Program Development Grant.

Stream Compensatory Mitigation Webinar Series: Restoration Approaches - Emerging Issues and Topics: Barrier Removal

The science of stream restoration continues to evolve rapidly, and new restoration techniques are emerging. This webinar will discuss barrier removal - one of the new and emerging techniques - and how it fits into the 404-regulatory framework. Selective removal of outdated dams and other barriers to free-flowing rivers may provide durable and successful conservation outcomes, including significant water quality and habitat benefits. There have been, however, few dam removal project approved in the 404 or ESA compensatory mitigation markets. The newly released Army Corps' Regulatory Guidance Letter (download at https://www.usace.army.mil/missions/civil-works/regulatory-program-and-permits/guidance-letters/) addresses how regulators should approach dam removal for mitigation crediting, providing guidance on many common regulatory issues associated with dam removal. This panel will explore: the benefits of such an approach, particularly relative to more commonly used stream restoration methods; an overview of barriers to more widespread adoption of the practice, and reflection on the new Corps guidance; and examples of successful projects that have generated 404 or ESA credits.


  • Jessica Wilkinson: Senior Policy Advisor, Mitigation; The Nature Conservancy
  • Ruth Ladd: Mitigation Program Manager; US Army Corps of Engineers, New England District
  • Adam Riggsbee: President; RiverBank Conservation
  • Amy Singler: Director, River Restoration; American Rivers & The Nature Conservancy

Wilkinson Presentation

Ladd Presentation

Singler Presentation

Riggsbee Presentation

Additional Information/Resources:
Visit ELI's resource page, The State of Stream Compensatory Mitigation: Science, Policy, and Practice

Download The Nature Conservancy's Creating an Environmental Market for Stream Barrier Removal

October 31, 2018

Cosponsored by the National Native American Bar Association
and the ABA Section of Environment, Energy, and Resources

ELI Member Webinar

Traditional ecological knowledge (TEK), also known as indigenous knowledge (IK), is defined as a deep understanding of the environment developed by local communities and indigenous peoples over countless generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for the incorporation of TEK into a range of environmental decision-making contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change.

Our expert panel explored the extent to which TEK is used in distinct environmental decision-making processes, and to which courts have or may uphold legal decisions based, wholly or in part, on indigenous peoples’ understanding of the environment. Our panel discussed the challenges indigenous peoples face in defending the legitimacy of, and intellectual property in, TEK; examined how policy-makers can modify existing laws and regulations to better incorporate TEK; and debated TEK’s potential in meeting today’s most pressing environmental challenges.

Greta Swanson, Visiting Attorney, Environmental Law Institute and Pro Bono Attorney, Chesapeake Legal Alliance (Moderator)
Minnie Degawan, Director of Indigenous and Traditional Peoples Program, Conservation International
Kathy Hodgson-Smith, Attorney, and TEK Member, Commission for Environmental Cooperation
Anthony Moffa, Visiting Associate Professor, University of Maine School Of Law, formerly Staff Attorney with the General Counsel’s office of the U.S. Environmental Protection Agency

ELI members who have logged in to the Members site will see below the materials and any recording of this session. If you are not an ELI member but would like to have access to archived sessions like this one, go HERE to see the many benefits of membership and how to join.

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