<h4><em>Under review</em></h4>
<p>In the United States, environmental law has <a href="#evolution-environmental-law-policy">evolved</a> into a combination of federal, state, and local laws, regulations, and policies. Environmental laws include <a href="#international-environmental-law">international treaties</a> as well as statutory law made by <a href="#role-of-congress">Congress</a><a href="http://live-eli.pantheon.io/#_msocom_3"></a&gt;, <a href="#role-of-states-and-tribes">state legislators, and tribes</a><a href="http://live-eli.pantheon.io/#_msocom_4"></a&gt;, administrative regulations promulgated by state and <a href="#role-of-federal-agencies">federal government agencies</a>, <a href="#local-environmental-law">local ordinances</a> created by municipal bodies and case law created by <a href="#role-of-courts">judges</a> deciding legal disputes. These environmental laws create a complex and interconnected web of rules intended to protect the environment and public health.</p>
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<p>For a discussion of how environmental professionals work, watch a recent ELI seminar on <a href="http://www.eli.org/summer-school-introduction-careers-environmental-law… Introduction to Careers in Environmetnal Law and Policy</a>.</p>
</blockquote>
<h3><a name="evolution-environmental-law-policy"></a>Evolution of Environmental Law and Policy</h3>
<h5>Common Law Origins</h5>
<p>The <a href="#" title="For a thorough discussion of the history of environmental law, see Law of Environmental Protection chs. 1-9.">roots of environmental law</a> in the United States can be found in our common law tradition. Common law is a body of judicially-created law that has developed over time through court decisions issued to resolve lawsuits brought by parties in conflict. The common law system is based on a respect for precedent that requires courts to render new decisions in conformance with past decisions. This respect for prior case law provides consistency and predictability in the law.</p>
<p>Environmental law largely grew from the common law doctrines of public nuisance and the public trust doctrine. <a href="http://www.nuisancelaw.com/learn/historical#ELM&quot; target="_blank">Public nuisance law</a> protects public safety and welfare by placing restrictions on uses of and activities permitted on private land. The public trust doctrine established the cultural and legal understanding that certain natural resources should be reserved for public use and the common welfare. This doctrine has been used to<a href="https://supreme.justia.com/cases/federal/us/161/519/case.html&quot; title="Greer v. Connecticut, 161 U.S. 519 (1896)."> ensure access to navigable waters</a> for all citizens, conserve federal lands for uses compatible with the public interest, and to protect wildlife for the public benefit. While both the law of <a href="https://web.archive.org/web/20131206110455/http://nuisancelaw.com/sites…; target="_blank">public nuisance</a> and the <a href="http://lawschool.unm.edu/nrj/volumes/51/1/35-94.pdf&quot; target="_blank">public trust doctrine</a> are still used as tools in modern environmental litigation, in most areas, early common law doctrines have been supplanted by enforcement efforts under our complex regulatory system of state, federal and local laws passed by legislators. Statutory law passed by legislative bodies usually <a href="#" title="For example, the Supreme Court found that the Clean Air Act displaced federal common law claims for climate change damages in American Electric Power Co. v. Connecticut: “’[W]hen Congress addresses a question previously governed by a decision rested on federal common law,’ the Court has explained, ‘the need for such an unusual exercise of law-making by federal courts disappears.’ Milwaukee II, 451 U. S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I).” See generally AEP. v. Connecticut—Global Warming Litigation and Beyond.">displaces</a> common law.</p>
<blockquote>
<p>For a discussion of displacement of common law and the use of nuisance in climate change cases, listen to and download materials from the ELI seminar <a href="http://www.eli.org/Seminars/past_event.cfm?eventid=609"><em>American Electric Power Co. v. Connecticut</em>: The Next Landmark Supreme Court Climate Case</a>. These issues are also discussed in the following ELR articles: Kevin Gaynor, <a href="http://elr.info/news-analysis/40/10845/challenges-plaintiffs-face-litig… Plaintiffs Face in Litigating Federal Common-Law Climate Change Claims</a>.</p>
<p>A series of cases filed in all 50 states seeks to use the public trust doctrine to force action on climate change, for example. See also <a href="http://www.eli.org/eli-press-books/creative-common-law-strategies-for-p… Common Law Strategies for Protecting the Environment</a> edited by Cliff Rechtschaffen and Denise Antolini for a discussion of innovative ways to use common law to address environmental issues.</p>
</blockquote>
<h5>The Beginnings of Modern Environmental Law</h5>
<p>The origins of our current system of environmental laws can be traced back to the mid-1800s when the federal government first began to take steps to protect, catalogue, and regulate the natural environment. The Department of the Interior was founded in 1849 and tasked with the management of federally owned lands and the creation of geological surveys of the western territories. Yellowstone was established as the <a href="http://www.nps.gov/yell/naturescience/index.htm&quot; target="_blank">first National Park</a> in 1872. The first federal environmental statute, the <a href="https://www.law.cornell.edu/uscode/text/33/407">Rivers and Harbors Appropriation Act</a> was passed in 1899.</p>
<p>Environmental law and policy began to gain momentum under President Theodore Roosevelt. The first <a href="http://www.fws.gov/refuges/">National Wildlife Refuge</a> was established at <a href="http://www.fws.gov/pelicanisland/&quot; target="_blank">Pelican Island, Florida</a> in 1903. The <a href="http://www.doi.gov/whoweare/history.cfm&quot; target="_blank">National Park Service</a> was created within the Dept. of the Interior in 1916. During the Great Depression, a work relief program called the <a href="http://www.ccclegacy.org/&quot; target="_blank">Civilian Conservation Corps</a> provided federal funding for projects focused on conservation and development of federally owned agricultural and park lands. The focus of environmental laws passed during the first century of environmental law focused primarily on the conservation of natural resources.</p>
<blockquote>
<p>For a timeline of environmental protection efforts, see <a href="http://www.factmonster.com/spot/earthdaytimeline.html">http://www.factm…;
<p>A good list of environmental laws organized by date of passage is available here <a href="http://en.wikipedia.org/wiki/Timeline_of_major_U.S._environmental_and_o…; &nbsp;and a history of environmental policy is available here <a href="http://en.wikipedia.org/wiki/Environmental_policy_of_the_United_States"…;
</blockquote>
<h5>The Rise of Modern Environmental Law and Policy</h5>
<p>Historically, most pollution control concerns had been left to the states to resolve -- air and water pollution were largely seen as subject to the states’ <a href="#" title="According to Black’s Law Dictionary, police power “is the exercise of the sovereign right of a government to promote order, safety, security, health, morals and general welfare within constitutional limits and is an essential attribute of government.”">police powers</a>. As a result of rapid economic and technology growth, the federal government began to address pollution control after World War II. In 1948, the first federal law addressing water pollution, the <a href="https://www.law.cornell.edu/uscode/text/33/chapter-26">Federal Water Pollution Control Act</a>, was passed. Then, in 1955, the<a href="http://www.gpo.gov/fdsys/pkg/STATUTE-69/pdf/STATUTE-69-Pg322.pdf"&gt; Air Pollution Control Act</a><a href="http://live-eli.pantheon.io/#_msocom_21"></a&gt; was passed as the first federal air pollution law. A growing public awareness of pollution’s impact on public health and the environment in the 1960s led to the strengthening of federal pollution control laws in the 1970s, when for the first time the federal government was given the leading role in pollution control.</p>
<p>President Richard Nixon <a href="http://www.epa.gov/aboutepa/history/topics/epa/15c.html&quot; target="_blank">created the Environmental Protection Agency (EPA)</a> in 1970 through a <a href="http://www.epa.gov/aboutepa/history/org/origins/reorg.html">Reorganizat… Plan</a>. This signaled a boom in environmental law reform during the1960s -1980s which resulted in passage of the majority of our current federal environmental statutes including <a href="http://live-eli.pantheon.io/keywords/natural-resources#national-environ…;, the <a href="http://www.eli.org/keywords/air-1">Clean Water Act</a>, the <a href="http://www.eli.org/keywords/air-1">Clean Air Act</a>, and <a href="http://www.eli.org/keywords/waste-0#CERCLA">CERCLA</a&gt;, to name a few.</p>
<blockquote>
<p>The history of modern environmental policy is told in Richard Lazarus’ “The Making of Environmental Law,” <a href="http://www.press.uchicago.edu/ucp/books/book/chicago/M/bo3629140.html">…;, and Richard Lazarus and Oliver Houck’s “Environmental Law Stories,”&nbsp;<a href="http://store.westacademic.com/s.nl/it.A/id.1789/.f">http://store.westac…;
</blockquote>
<h3><a name="role-of-congress"></a>The Role of Congress</h3>
<p>The U.S. Constitution does not directly empower Congress to govern environmental issues. Congress’s authority to enact laws regulating the environment instead derives primarily from the Commerce Clause, found in Article I § 8 of the <a href="#" title="The Congress shall have Power …To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…">U.S. Constitution</a>. The Commerce Clause reserves to the federal government the right to regulate interstate commerce – or commerce between states. There is a constant tension between state and federal power when Congress uses its authority under the Commerce Clause. Cases testing the definition of interstate commerce and exploring the <a href="https://web.archive.org/web/20080705051224/http://www.endangeredlaws.or… of federal power under the Commerce Clause</a> have been extensively litigated throughout our history continuing up to the present day. For example, the extent of federal power over surface water pollution is currently in dispute and quite unclear. Similarly, several cases have addressed whether the federal Endangered Species Act (ESA) can govern species found only in one place, although all courts to date have found that it can.</p>
<blockquote>
<p>The evolving understanding of the limit of federal jurisdiction over water pollution is putting wetlands and other valuable resources at risk, according to an <a href="http://www.elistore.org/reports_detail.asp?ID=11416&amp;topic=Wetlands"… report</a>. The interplay between the Clean Water Act and the Constitution is discussed in Robin Kundis Craig, <a href="http://www.eli.org/eli-press-books/clean-water-act-and-the-constitution… Clean Water Act and the Constitution, 2d ed</a>. For a discussion of the seminal Rapanos decision, see William Want, <a href="http://elr.info/news-analysis/36/10214/us-supreme-court-review-rapanos-…. Supreme Court Review of “Rapanos v. United States and Carabell v. United States Army Corps of Engineers”: Implications for Wetlands and Interstate Commerce</a>&nbsp; and Calvert Chipchase, <a href="http://elr.info/news-analysis/33/10775/clean-water-act-whats-commerce-g… Clean Water Act: What’s Commerce Got to Do With It</a>.</p>
</blockquote>
<p>In addition to its power under the Commerce Clause, Congress also has authority over environmental law and policy through its constitutional <a href="#" title="The Congress shall have Power … to pay the Debts and provide for the common Defence and general Welfare of the United States…">spending</a> and <a href="#" title="[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….">treaty</a> powers. In the division of powers between the three branches of the federal government, Congress holds the power of the purse. Using this power, Congress can offer states incentives to enact environmentally friendly provisions and <a href="#" title="The Supreme Court’s decision in National Federation of Independent Businesses v. Sebelius No. 11-393 (June 28, 2012) calls into question the scope of Congress’ power to withhold existing funding to states.">withhold funding</a> when states act in environmentally irresponsible ways. The federal government can also regulate migratory species and other environmental issues using its exclusive right under the Constitution to enter international treaties.</p>
<blockquote>
<p>For a discussion of the current state of Commerce Clause and spending powers jurisprudence in relation to environmental law, as well as a discussion of Congress’ power to withhold funding from the states, listen to a recent ELI teleconference <a href="http://www.eli.org/Seminars/past_event.cfm?eventid=660">What Does the Healthcare Ruling Mean for Environmental Law</a>.</p>
</blockquote>
<h3><a name="role-of-federal-agencies"></a>The Role of Federal Agencies</h3>
<p>Federal agencies are responsible for implementing and enforcing federal environmental laws. The <a href="http://www.epa.gov">EPA</a&gt; is responsible for the preponderance of federal environmental regulatory and enforcement activities. The Department of the Interior implements and enforces most natural resource laws, while the Departments of <a href="http://www.commerce.gov/">Commerce</a&gt;, <a href="http://www.usda.gov/wps/portal/usda/usdahome">Agriculture </a>and <a href="http://www.justice.gov/">Justice </a>and the<a href="http://www.usace.army.mil/"&gt; Army Corps of Engineers</a><a href="http://live-eli.pantheon.io/#_msocom_29"></a&gt; also play important roles.</p>
<blockquote>
<p>For a discussion of administrative law generally, see <a href="http://www.law.cornell.edu/wex/administrative_law&quot; target="_blank">http://www.law.cornell.edu/wex/administrative_law</a&gt;. For a discussion of how to research administrative law generally, see <a href="http://www.loc.gov/law/help/administrative.php&quot; target="_blank">http://www.loc.gov/law/help/administrative.php</a>.</p&gt;
</blockquote>
<p>The National Environmental Policy Act (NEPA) created the <a href="http://www.whitehouse.gov/administration/eop/ceq/&quot; target="_blank">Council on Environmental Quality</a> (CEQ). The CEQ is the first and only cabinet-level council of environmental advisors to the President. The CEQ is responsible for promulgating regulations under NEPA and mediating disputes between agencies regarding the sufficiency of NEPA compliance efforts and other environmental matters.</p>
<p>When empowered to implement a statute, agencies promulgate regulations, which appear in the <a href="http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR…; target="_blank">Code of Federal Regulations</a>. In addition to promulgating regulations, federal agencies are responsible for enforcement of environmental laws using civil enforcement, criminal enforcement, and compliance assurance activities.</p>
<p>The Administrative Procedure Act (APA) is an important procedural statute that helps to enforce environmental laws and regulations. The <a href="http://www.epa.gov/lawsregs/laws/apa.html&quot; target="_blank">APA</a> establishes the procedural framework for agencies to make decisions, such as provisions requiring agencies to seek public comment during the decision-making process. The APA also establishes a framework for <a href="#role-of-courts">judicial review</a> over agency actions. For example, after an agency has promulgated a regulation, persons affected by the regulation can seek judicial review to ensure the agency’s rules are consistent with the law and are not arbitrary or capricious.</p>
<blockquote>
<p>The process for an agency to promulgate a rule or regulation can be quite complex and can involve many layers of review within the Executive, Legislative and Judicial Branches. A Congressional Research Service report provides a good overview of this process here. <a href="http://www.thecre.com/pdf/20120422_RL32240.pdf&quot; target="_blank">http://www.thecre.com/pdf/20120422_RL32240.pdf</a&gt;. Another CRS report addresses the rulemaking process and judicial review here <a href="http://www.wise-intern.org/orientation/documents/CRSrulemakingCB.pdf&qu…; target="_blank">http://www.wise-intern.org/orientation/documents/CRSrulemakingCB.pdf</a…;
<p>A key component in administrative law is the requirement that agencies propose actions for public notice and comment and respond to the comments before taking final action. This helps to ensure that agencies take well-informed actions and that the public’s views are taken into account. An excellent guide to commenting on agency actions is available in Elizabeth Mullins, <a href="http://www.eli.org/eli-press-books/art-of-commenting%3A-how-to-influenc… Art of Commenting: How to Influence Agency Actions with Effective Comments</a>. For a discussion of the important role the National Environmental Policy Act has played in ensuring citizen involvement in government decisionmaking, see <a href="http://www.elistore.org/reports_detail.asp?ID=11405&amp;topic=NEPA">NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government</a>.</p>
</blockquote>
<h3><a name="role-of-courts"></a>The Role of Courts</h3>
<p>Where congressional legislation and agency regulation end, litigation in the courts begins. When a case is filed alleging a violation of a federal environmental law, it usually is filed in the district court located where the alleged violation occurred. In some environmental lawsuits, called “<a href="http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Fed…; target="_blank">judicial review</a>,” disagreement is over whether federal regulations are consistent with statutory requirements and whether federal agencies are acting within the limits of the law. To resolve these conflicts, interested parties such as NGOs, corporate interests, and private individuals file lawsuits in federal court. In such cases, initial review of the agency action often begins directly at the appellate level in the <a href="http://www.cadc.uscourts.gov/internet/home.nsf//content/home+page#&quot; target="_blank">United States Court of Appeals for the D.C. Circuit</a><a href="http://live-eli.pantheon.io/#_msocom_35"></a&gt;. As a result, the D.C. Circuit is one of the busiest, and arguably most influential, federal appellate courts in the country on environmental regulatory matters.</p>
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<p>A good overview of the federal court system is provided here <a href="http://www.law.cornell.edu/wex/federal_courts&quot; target="_blank">http://www.law.cornell.edu/wex/federal_courts</a>.</p&gt;
<p>Judge Douglas Ginsburg, a long-time judge on the D.C. Circuit, describes the court’s role in administrative law in a 2011 speech here <a href="https://www.law.georgetown.edu/academics/law-journals/gjlpp/upload/zs80…;
</blockquote>
<h5><a name="standing"></a>Standing to Sue</h5>
<p>Before a case will be heard in court, a plaintiff must demonstrate <a href="http://www.justice.gov/usao/eousa/foia_reading_room/usam/title4/civ0003… to sue</a>. This is because Article III of the U.S. Constitution limits federal court jurisdiction to actual “cases or controversies” that arise between adverse parties. The U.S. Supreme Court has outlined three requirements that must be met by a petitioner to establish Article III standing: (1) injury directly suffered by the petitioner (2) that is caused by the conduct petitioner complained of and (3) that is redressable by a favorable court decision. This seemingly straightforward standing test has become a contentious issue in environmental lawsuits where courts have been faced with the question – who has standing to complain about air pollution or harm to endangered species?</p>
<blockquote>
<p>Two ELI seminars on standing issues, one <a href="http://www.eli.org/events/access-courts-after-massachusetts-v-epa-who-h… and <a href="http://www.eli.org/events/access-courts-after-massachusetts-v-epa-who-w…; the <em>Massachusetts v. EPA</em> decision, offer a discussion of and insights into the standing issues.</p>
<p>To better understand the jurisdiction of federal courts, read this <a href="http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jur…; target="_blank">http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jur…;
</blockquote>
<h5><a name="citizen-suits"></a>Citizen Suits</h5>
<p>Many federal environmental laws allow concerned citizens to sue and enforce environmental protections by empowering citizens to act as “private attorneys general” to protect natural resources. These “citizen suits” are somewhat unique to environmental laws. For example, under the Clean Water Act, a citizen who enjoys recreational activities in a local river would be able to sue a polluter who is illegally dumping into the river if the local, state or federal agency had not sought to end the dumping. They have been somewhat controversial, with accusations of people suing just to recuperate attorneys fees, but others believe they serve a useful check on agency inaction (See <em>ELR</em> articles <a href="http://elr.info/news-analysis/33/10704/now-more-ever-environmental-citi…;, <a href="http://elr.info/news-analysis/33/10721/environmental-citizen-suits-thir…;, and <a href="http://elr.info/news-analysis/16/10162/citizen-suits-defense-perspectiv…; for three different perspectives).</p>
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<p>For an understanding on how to bring citizen suits, see <a href="http://www.eli.org/research-report/citizens-guide-using-federal-environ… Citizen’s Guide to Using Federal Environmental Laws to Secure Environmental Justice</a>.</p>
</blockquote>
<h3><a name="role-of-states-and-tribes"></a>The Role of the States and Tribes</h3>
<p>States remain primarily responsible for implementing pollution control requirements. In establishing the EPA and passing the new federal environmental protection statutes, Congress relied on the model of cooperative <a href="http://www.cliffsnotes.com/more-subjects/american-government/federalism…; title="See this page for a discussion of types of federalism.">federalism</a>. Under cooperative federalism, states are asked to implement and enforce federal laws while retaining the power to create laws more stringent than federal laws. The vast majority of federal environmental laws are thus implemented by the states. The same is largely true with Indian tribes, who remain sovereign over their lands.</p>
<blockquote>
<p>For a discussion of the role of Native American tribes in environmental enforcement, see David Coursen, <a href="http://elr.info/news-analysis/23/10579/tribes-states-indian-tribal-auth… as States: Indian Tribal Authority to Regulate and Enforce Environmental Law and Regulations</a>, Joe Stuckey, <a href="http://elr.info/news-analysis/31/11198/tribal-nations-environmentally-m… Nations: Environmentally More Sovereign than States</a>, and &nbsp;Jane Kloeckner, <a href="http://elr.info/news-analysis/42/10057/hold-tribal-sovereignty-establis… On to Tribal Sovereignty: Establishing Tribal Pesticide Programs That Recognize Inherent Tribal Authority and Promote Federal-Tribal Partnerships</a>.</p>
</blockquote>
<p>An example of cooperative federalism can be seen in the Resource Conservation and Recovery Act (RCRA). RCRA governs solid and hazardous wastes. The EPA issues federal regulations under RCRA. States can establish their own waste statutes and regulatory schemes based upon RCRA’s requirements. If EPA finds these state regulatory efforts to be consistent with the federal requirements, then state agencies are given approval to implement and enforce RCRA and state agency action “has the same force and effect” as <a href="#" title="42 U.S.C. § 6926(d)">EPA action</a>.</p>
<p>Cooperative federalism can also be more deferential to state authority. The <a href="http://elr.info/legislative/federal-laws/surface-mining-control-and-rec… Mining Control and Reclamation Act of 1977</a> (SMCRA) establishes a federal framework that regulates mining activities in the absence of state regulations. A state may avoid the federal requirements entirely by establishing its own laws to substitute for SMCRA’s requirements.</p>
<blockquote>
<p>For a discussion of federalism and how it operates in environmental law, see Douglas Kendall, <a href="http://www.eli.org/eli-press/redefining-federalism-listening-states-sha… Federalism</a>. For an interesting article on cooperative federalism in both the pollution control and natural resource realms, see Robert Fischman, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=824385">Cooperative Federalism and Natural Resources Law</a>.</p>
</blockquote>
<p>In general, federal environmental laws create minimum standards. They do not prevent the states from enacting more stringent environmental protections. For example, <a href="http://www.arb.ca.gov/research/aaqs/caaqs/caaqs.htm&quot; target="_blank">California has adopted air quality standards</a> for ozone and particulate matter that are more protective than the federal standards under the Clean Air Act and has a <a href="http://www.dtsc.ca.gov/&quot; target="_blank">chemical regulatory system</a> that is broader in scope than the federal program.</p>
<blockquote>
<p>See the ELI Research Report <a href="http://www.eli.org/sites/default/files/eli-pubs/d7-07.pdf">Federal Regulations and State Flexibility in Environmental Standard Setting</a> for a discussion of how states can be more nimble than the federal government in implementing environmental law.</p>
</blockquote>
<p>Additionally, many state legislatures have adopted state laws modeled after federal laws such as NEPA. In California, the <a href="http://ceres.ca.gov/ceqa/&quot; target="_blank">California Environmental Quality Act</a><a href="http://live-eli.pantheon.io/#_msocom_43"&gt; </a>(CEQA) was based on NEPA, but its focus is on ensuring that state, rather than federal, government agencies take environmental impacts into account prior to taking action. In New York, the <a href="http://www.dec.ny.gov/permits/6208.html&quot; target="_blank">State Environmental Quality Review</a> (SEQR) law serves the same purpose.</p>
<blockquote>
<p>The differences between federal and state court systems are discussed here <a href="http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jur…;
</blockquote>
<h3><a name="local-environmental-law"></a>Local Environmental Law</h3>
<p>Local environmental laws are probably the least visible form of environmental law, but at the same time they are some of the laws felt most directly by average citizens, such as <a href="http://www.eli.org/research-report/planning-development-and-sewage-infr… use and planning</a>. Most localities have a zoning code that outlines permissible uses for private land depending on its location. Zoning laws are used to <a href="http://www.eli.org/eli-press-books/smartcode-solution-to-sprawl,-the">g… development</a>, protect areas important to the public interest and to limit unfavorable results of certain land uses.</p>
<blockquote>
<p>For a fascinating exploration of local environmental law, see John Nolon, <a href="http://www.eli.org/eli-press/new-ground-advent-local-environmental-law"… Ground: the Advent of Local Environmental Law</a> and <a href="http://www.eli.org/eli-press/open-ground-effective-local-strategies-pro… Ground: Effective Local Strategies for Protecting Natural Resources</a>.</p>
</blockquote>
<p>In addition to zoning, local governments make infrastructure planning decisions that affect the environment. The new <a href="http://www.smartgrowth.org/&quot; target="_blank">smart growth movement</a> has led to local governments emphasizing development and infrastructure plans that minimize environmental impacts by supporting development of pedestrian and cyclist-friendly communities, privileging public transportation options over highway development and upgrading older less environmentally friendly storm water management infrastructure. Cities have helped spur new environmentally friendly trends and initiatives by passing local ordinances in support of urban agriculture, recycling programs, and creating local funding sources to support green roofs, solar panel installation or preservation of historic buildings. Similarly, many cities are on the front lines of taking action to reduce climate change. Other environmental functions carried out by local governments include managing waste removal and recycling, managing city parks and managing the local water and utility systems.</p>
<blockquote>
<p>For an example of how localities can use local ordinances to protect the environment and preserve biodiversity, see James McElfish, <a href="http://www.eli.org/eli-press-books/nature-friendly-ordinances">Nature Friendly Ordinances</a>.</p>
</blockquote>
<h3><a name="international-environmental-law"></a>International Environmental Law</h3>
<p>Many environmental issues are international in nature as they transcend boundaries: some forms of air pollution, like greenhouse gas emissions, international trade in chemicals, international transportation of hazardous wastes, etc. While domestic environmental law in the United States has taken root since the 1960s, so has international environmental law. Several major treaties address <a href="http://ozone.unep.org/new_site/en/index.php&quot; target="_blank">stratospheric ozone destruction</a>, <a href="http://www.cites.org/&quot; target="_blank">endangered species</a>, <a href="http://www.cbd.int/&quot; target="_blank">biological diversity</a>, <a href="http://www.basel.int/&quot; target="_blank">hazardous waste</a>, <a href="http://www.pic.int/&quot; target="_blank">chemical regulation</a>, and many other important topics.</p>
<blockquote>
<p>For a good overview of the operation of international environmental law, see this article <a href="http://www.ucar.edu/communications/gcip/m3elaw/m3pdfc1.pdf&quot; target="_blank">http://www.ucar.edu/communications/gcip/m3elaw/m3pdfc1.pdf</a>.</p&gt;
</blockquote>
<p>Most of these negotiations are conducted among nations through the United Nations. The <a href="http://www.unep.org&quot; target="_blank">United Nations Environment Programme</a> and other international bodies have responsibility for environmental issues. Periodically, nations gather to forge a path forward on environmental and sustainable development issues as well.</p>
<blockquote>
<p>Ecolex, <a href="http://www.ecolex.org&quot; target="_blank">www.ecolex.org</a&gt;, is a terrific gateway to international treaties and laws. The American Society of International Law also has a helpful overview and research guide here <a href="http://www.asil.org/erg/?page=ienvl&quot; target="_blank">http://www.asil.org/erg/?page=ienvl</a>.</p&gt;
</blockquote>

Movers & Shakers
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
6

Movers

Jenner & Block’s Washington, D.C., office has tapped Jennifer Amerkhail as partner. Amerkhail served for 16 years as a lawyer for the Federal Energy Regulatory Commission.

The National Park Service has announced that Stanley Austin will take over as regional director of the NPS South Atlantic-Gulf region. Austin most recently served as regional director of the Lower Colorado Basin, Columbia-Pacific, California-Great Basin and Pacific Islands region.

Tom Boer joins Hogan Lovells’s environment and natural resources practice. Boer most recently worked for Hunton Andrews Kurth LLP, and previously served at the Justice Department and EPA’s Office of General Counsel.

Chicago-based environmental boutique law firm Nijman Franzetti LLP welcomes Susan E. Brice as partner. Brice formerly co-led the toxic tort group at Bryan Cave Leighton Paisner LLP.

Phillip Brooks has stepped down from his position as air enforcement chief of EPA to join 3M as associate general counsel for environmental compliance.

Juan Andres Caro joins the Department of Energy as a special adviser in the Office of Electricity. He previously spent two years working at the White House Office of American Innovation and the Domestic Policy Council.

Ed Carter has stepped down from his position as executive director of the Tennessee Wildlife Resources Agency. Deputy Executive Director Bobby Wilson will now lead the agency.

The National Wildlife Federation has tapped Chanté Coleman as the organization’s first vice president for racial equity and justice. Coleman previously led the Chesapeake Bay-based Choose Clean Water Coalition.

The Sierra Club welcomes Ramón Cruz as president. Cruz most recently served in senior positions at the Environmental Defense Fund and as deputy director of Puerto Rico’s environmental regulatory agency.

Joe Dawley will now serve as partner at Earth & Water Law in Washington, D.C. Dawley has more than 30 years of experience in environmental law, including as an attorney at EQT Corp.

Ross Gillfillan will serve as vice president of communications at Citizens for Responsible Energy Solutions. Gillfillan previously served as director of strategic communications for the Office of Science and Technology Policy.

Bryan Howard will now lead state-level energy efficiency and clean energy initiatives at the American Council for an Energy-Efficient Economy. Howard was formerly a lobbyist at the U.S. Green Building Council and served as an aide to former Rep. Mark Udall (D-CO).

Virginia Governor Ralph Northam has appointed longtime Federal Energy Regulatory Commission official Jehmal Hudson as commissioner at the Virginia State Corporation Commission. Hudson has held several legal positions, including directing FERC’s office of government affairs.

Green 2.0, a nonprofit dedicated to promoting racial diversity in the environmental movement, has named Andrés Jimenez as its first full-time executive director. Jimenez previously served as senior director of government affairs at the Citizens’ Climate Lobby.

Renée Martin-Nagle joins Eckert Seamans as special counsel after serving as CEO and president of A Ripple Effect plc, an international water law and management consultancy.

Moira Mcdonald has been promoted to director of the Environment Program at the Walton Family Foundation after leading the foundation’s Mississippi River and Delta initiatives for 11 years. She previously was editor of ELI’s National Wetlands Newsletter.

The nonprofit California Water Data Consortium has named Tara Moran as president and CEO. Moran comes from Stanford University’s Water in the West Sustainable Groundwater program.

NOAA has tapped longtime agency official Paul “Sammy” Orlando as the first superintendent of the Mallows Bay-Potomac River National Marine Sanctuary in Maryland.

Sethuraman Panchanathan now serves as director of the National Science Foundation. Panchanathan previously served as chief research and innovation officer at Arizona State University.

Carlos Manuel Rodriguez takes the helm as CEO and Chairperson of the Global Environment Facility. Rodriguez has served three terms as minister of environment and energy in Costa Rica.

Jane Rueger has been named president of the Energy Bar Association’s board of directors and partner at Perkins Coie LLP. Rueger previously worked as a partner at White & Case LLP.

Suzi Ruhl has stepped down from her position as senior counsel to the EPA Office of Environmental Justice to join the faculty at Yale School of Medicine. Ruhl will work to advance health, economic, and environmental justice through the Yale Child Study Center.

Bill Sheehan takes the lead as regional director of Presque Isle’s Department of Environmental Protection after serving at the office for 30 years.

The American Chemical Society has named Shane Snyder as the editor-in-chief of its journal ACS ES&T Water. Snyder serves as executive director of the Nanyang Environment & Water Research Institute and professor at Nanyang Technological University - Singapore.

Defenders of Wildlife has announced Renee Stone will serve as a senior adviser before stepping into the role of senior vice president starting in 2021. Stone comes from the National Audubon Society, and previously held leadership positions at NOAA and the Department of Energy in the Obama administration.

Crystal Upperman joins Aclima, a San Francisco-based company that maps global air pollution and greenhouse gases, as a senior scientist. Upperman has over a decade of experience in climate change and health, and most recently served as senior research associate at the World Resources Institute.

Kristine Wiley takes the helm as the director of the Hydrogen Technology Center at GTI after serving at the organization for nearly twenty years.

Waterways Council, Inc. has promoted Tracy Zea from vice president for government relations to president and CEO.

Shakers

Monica Collins, chief of environmental compliance in Australia, has been appointed as chair of the Australasian Environmental Law Enforcement and Regulators Network (AELERT).

Michelle De Blasi has announced the formation of her own firm, the Law Office of Michelle De Blasi. De Blasi currently serves as executive director of the Arizona Energy Consortium.

Laura Huffman and Elizabeth Seeger have joined RES’s Board of Directors. Huffman currently serves as CEO of the Austin Chamber of Commerce, and Seeger is the Director of Sustainable Investing for KKR.

Two leaders of the American Water Works Association have been appointed to the boards of nonprofit water organizations. CEO David LaFrance joins the board of Water Education Colorado, while Tracy Mehan, executive director of government affairs, was elected to the board of River Network. Mehan is book reviewer for The Environmental Forum.

Crystal Upperman, Senior Scientist at Aclima, a San Francisco-based company that maps global air pollution and greenhouse gases, has been appointed to the advisory board for the American Public Health Association’s Center for Climate, Health and Equity.

The Great Lakes and St. Lawrence Cities Initiative elected Mayor of Sheboygan, WI, Mike Vandersteen to join its board of directors. Vandersteen will work to address issues facing coastal states, including climate change, water and plastic pollution, and invasive species in Lake Michigan.

Memorial

Stanley Wayne Legro, environmental lawyer and ELI board member, passed away on August 17 at 84 years old. Legro served as EPA’s assistant administrator for enforcement from 1975 to 1977, and as a member of the National Advisory Committee on Oceans and Atmosphere from 1985 to 1989. He practiced law in Southern California, where he served on the San Diego City Planning Commission, and in Washington, DC, where he was of counsel at Verner, Liipfert (later DLA Piper). He was also an adjunct fellow at the Center for Strategic and International Studies.

See Your Colleagues' Job Changes and Honors Received.

Learning From the Pandemic: More Monitoring
Author
Adam Babich - Tulane Law School
Tulane Law School
Current Issue
Issue
5
Parent Article

How do we protect the public from COVID-19 without getting a handle on the scope, distribution, and other characteristics of the threat? Well . . . we've been trying to do something similar in environmental law for decades.

Almost any analysis of the pandemic's grip on the United States begins with our early failure to test people for the novel coronavirus — from the CDC's distribution of defective test kits, to that agency's delay in approving other testing methods, and on through supply chain problems and minimal federal guidance and coordination.

Testing is essential to understanding the basics of COVID-19, including the prevalence of the disease, the extent of asymptomatic infection, and the virus's effective reproductive number — the average number of people that each infected person passes the disease on to. Without this information, we are grappling in the dark — making decisions with enormous public health and economic ramifications based on semi-educated guesses. Inevitably, many of those decisions will turn out to be wrong. Science-based decisionmaking does not work if we deny our scientists reasonably reliable data.

Semi-educated guesswork is familiar to environmental professionals. At times, we have no choice but to rely on policy decisions made in the absence of solid scientific evidence. For example, for many hazardous chemicals, we lack data about dose-response — how much exposure will cause how much injury. We can't very well (or at least we should not) experiment on people as if they were laboratory mice. So we do the best we can with assumptions and estimates.

Often, however, information is within our grasp but we still fail to gather it. Either we don't want to spend the money, we would rather not face up to the data's implications, or both. For example, in 1997, when finalizing its Compliance Assurance Monitoring rule to implement a Clean Air Act mandate for enhanced monitoring, EPA disavowed "a bias toward instrumental monitoring." The agency explained that requiring "direct emissions and compliance monitoring where the technology is available and feasible" would be "expensive, and technically complex" and thus "technically unrealistic," at least in the short term. We have been playing catch-up ever since.

Nobody working in the environmental field over the last few decades has failed to notice the repeated failure of EPA-approved State Implementation Plans to achieve compliance with federal health protection standards for ground-level ozone in ambient air. Air quality studies that the National Oceanic and Atmospheric Administration, the University of Texas, and others conducted in 2000 and 2006 help explain why. Those studies found that the emission estimates that underlie implementation planning for the Houston nonattainment area significantly understate actual emissions of volatile organic compounds — which react with oxides of nitrogen in the presence of sunlight to make ozone. Thus, air quality models used to demonstrate the standard's ultimate attainment are skewed by a fundamental rule of data analysis: garbage in, garbage out.

Courts tend to defer to EPA's reluctance to base decisions on monitoring. A 2008 D.C. Circuit opinion upheld the agency's analysis of the public health risk from facilities that use or produce synthetic organic chemicals. The court approved the agency's reliance on emission estimates from an industry association questionnaire that had a 44 percent response rate. Why? Such reliance is a "well-established practice"; i.e., we've done it before. Also, it would have been "costly and time-consuming" to collect better data.

In 2015, the D.C. Circuit upheld EPA's decision to designate an area in Utah as "unclassifiable" under the Clean Air Act — meaning that more than four decades into the act's implementation, EPA lacked enough information to say whether the area met standards. In that case, EPA had data from ambient monitoring under federal consent decrees. The data showed nonattainment. But the agency rejected those results because it had not conducted "post-collection quality assurance checks on the data."

For a brief time, EPA seemed willing to grapple with the need for monitoring data — at least when dealing with air pollution. In 2015, the agency published a rule that oil refineries must monitor benzene concentrations in ambient air around their fence lines and respond if those concentrations exceed an "action level." If the fugitive emission estimates that the refineries reported to EPA had been correct, no refinery would have exceeded the action level. Instead, 10 refineries have blown the limit, including operations by major players such as Chevron, Shell, Marathon, Valero, and PBF Energy.

In 2018, EPA took a step backwards, withdrawing its 2015 Next Generation Compliance Tools guidance because it "tended to suggest" that the agency would routinely require "tools such as advanced monitoring and independent third-party verification" in settlements.

We cripple our ability to protect the public whether from environmental pollutants or pathogens when we fail to collect the data we need to make science-based decisions.

Adam Babich teaches environmental law and administrative law at Tulane Law School.

Lessons for Flattening the Climate Curve
Author
Stephen Harper - Intel Corporation
Intel Corporation
Current Issue
Issue
5
Parent Article

COVID-19's tragic death toll, and the resources spent to respond and recover from the virus, have some climate policy activists concerned that our current crisis has reduced the will and ability to tackle climate change. Call me a contrarian. I think there are several parallels between our immediate COVID-19 crisis and the longer-term challenge of climate change that may turn the first into a dress rehearsal for the second.

Despite claims, neither crisis is a Black Swan, a unique disaster that could not have been anticipated but seems obvious in retrospect. Pandemics such as coronavirus have come and gone throughout history. We should have been prepared for what we are going through. Lack of preparation turned an epidemic into a pandemic. Climate change has been on the radar screen for at least four decades, so it isn't a Black Swan either.

Responding to both COVID-19 and climate is a matter of "flattening the curve." The climate change curve is much more prolonged, and its threat is much more existential. The very length and seemingly modest slope of the climate threat curve makes it more difficult to respond to in time.

Both coronavirus and climate change are attacking fundamental weaknesses of our economic and social system. The damage done to our complex, fragile supply chains emphasizes the need to increase economic resilience as a buffer against inevitable, significant disruptions. At the same time, the disproportionate impact of COVID-19 on disadvantaged communities has been breathtaking, dramatically magnifying the environmental injustices of everyday life. Climate change is causing the same types of damage to our socio-economy.

Which brings us to the broader topic of social cohesion, a degree of which will be necessary to a successful response to both COVID-19 and climate change. Presently, it is unclear whether the virus is bringing us together or further reinforcing our tribalistic tendencies. If the latter is the case, addressing climate change will become even more difficult.

Finally, an optimal response to both crises will require that science and data serve as the North Star that guides public policy. We need to be able to accurately track the climate change curve, in terms of both temperatures and health and ecological impacts, and be able to predict and quantify the impact of various mitigation and adaptation measures.

Speaking of policy, I am reminded of that great Churchillian bon mot, "Never waste a good crisis." We are all in the midst of learning a new way of living and doing business, emphasizing greater use of technology and virtualization. The current moment will pass, eventually, but we are not likely to return to the status quo ante. Here are some policy thoughts relevant to creating a new and better normal:

Most fundamentally, we need to become more economically and socially resilient. Governments need to invest in delivering more services digitally, where possible. Schools at all levels must be able to offer more eLearning services as a baseline, with the ability to pivot to a virtual norm when circumstances dictate. This will require a serious effort to truly close the digital divide across society. You can't function in today's economy without a smart-phone and a laptop.

Similarly, perhaps incented by public policies, businesses need to invest in operating remotely, making today's necessity a virtue. Part of that will include increasing the variety of jobs that can be done virtually, reducing perhaps the most striking digital divide of the COVID-19 crisis.

Enabling these changes in how we conduct our lives and business affairs will require massive public investments in 5G network technologies and the "digitalization" of virtually everything. Real-time advances being driven by the Internet of Things and artificial intelligence applications will lend a robust tail-wind to these other advancements. Here too, government policy can play a big role in advancing progress.

A major part of investing in a more resilient society will need to include modernizing the electricity grid. A modern, more resilient grid — operating more like the Internet, featuring two-way flows of both information and electrons — is a precondition for the grid to run on 100 percent renewable energy. And a clean-powered grid is essential to meeting the climate challenge. The modernization imperative applies to our local water infrastructure as well.

Investing in the acceleration of the renewable energy future is key to "Building Back Better." The massive stimulus package following the 2008 Great Recession helped jumpstart a major increase in renewables penetration. The anticipated infrastructure package should double-down on that precedent. Otherwise we will simply be creating a new generation of soon-to-be (expensively) stranded assets. And those assets will not put us in any better position to respond to the next pandemic or ride out the on-going curve of climate change.

Stephen Harper is director, environmental and energy policy, Intel Corporation.

Bad News for People Already Overburdened
Author
Vernice Miller-Travis - Metropolitan Group
Metropolitan Group
Current Issue
Issue
5
Parent Article

For going on four decades, the environmental justice movement has focused on unequal protection at all levels of government — federal, state, county, and municipal. We have pointed out in research, advocacy, and activism that communities of color are exposed to disproportionate levels of pollution over the course of our lives. We even raised with EPA the need to identify the cumulative and synergistic burden of exposure to multiple sources of pollution.

While most Americans are confronting the coronavirus pandemic, communities of color are confronting something worse, the Syndemic of Coronavirus and Environmental Injustice. A syndemic is a synergistic epidemic. It is a set of linked health problems contributing to excess disease. To prevent a syndemic, one must control not only each affliction in a population but also the forces that tie those burdens together.

Constant exposure to high levels of air toxics in communities of color has already resulted in explosive levels of respiratory disease, including asthma, chronic obstructive pulmonary disease, and emphysema, as well as heart disease. These pre-existing conditions have compounded the devastating impact of this pandemic; communities of color are now experiencing the highest rates of infection and death from COVID-19 in the United States. Lax attention to poor air quality has provided the perfect conditions for coronavirus to ravage the neighborhoods of people of color.

In April, the Harvard School of Public Health published a study that shows that COVID-19 is travelingthrough the air by attaching itself to fine particulate matter. They found that living in a county that experiences a slightly elevated level of PM2.5 results in a higher likelihood of developing coronavirus and dying from it. Only 22 percent of all counties in the United States are majority African American, yet 57 percent of COVID-19 deaths are coming from these jurisdictions. The Navajo Nation has been devastated by the pandemic and has a higher per capita rate of death from the virus than do seven states.

Latino and other immigrant workers in meatpacking plants are particularly vulnerable to virus exposure. These workers toil in conditions that rapidly spread COVID-19, making them especially vulnerable. With little concern for the well-being of employees, their jobs have been designated as essential so that the rest of us can have an uninterrupted supply of meat.

In an article published in the British newspaper The Guardian, reporter Emily Holden writes, "The Trump administration has said it will not tighten rules for soot pollution (PM2.5), despite research showing that doing so could save thousands of lives each year." Fine particles from the burning of wood and fossil fuels "penetrate the respiratory system and are linked with heart and lung diseases, higher rates of asthma, bronchitis, and cancer."

Holden explains that under the existing standard, "Polluters can emit enough soot to measure 12 micrograms per cubic meter. Strengthening the standards to 11 micrograms could save about 12,000 lives per year." The writer observes that "other research, noted in the government's own analysis, found that maintaining the soot standard at its current level could allow as many as 52,000 deaths a year in just 47 urban areas."

The Trump EPA "is now proposing to freeze the standards. The move comes as experts warn the coronavirus pandemic is unequally devastating communities of color that have been disproportionately burdened by pollution." The agency is also retaining its current standard for coarse particle pollution (PM10).Rob Brenner was deputy assistant administrator of EPA's air office and director of its policy shop. He says, "The science (based on thousands of high-quality studies) is clear: even a modest increase in the stringency of the standard would prevent thousands of premature deaths per year. . . . We need to continue to highlight the disproportionate effects of air pollution on already over-burdened communities and urge a tighter standard."

The current administration has withdrawn several environmental regulations under the guise of expediting economic development and business interests. In this particularly difficult and unprecedented public health crisis, one where communities of color are already paying an extraordinarily high price, the federal agency needs to lean into stringently regulating air pollution. Instead, what we have seen is the administration giving many industries a free hand to pollute while relaxing enforcement, all in aid of supposedly fighting the coronavirus. This is exactly the opposite of what is needed.

These measures also reinforce the sense that all communities are not, in fact, equal before the law. Even when the evidence clearly demonstrates that communities of color are more in need of environmental protection than ever before, they can't expect their government to focus attention or resources on those most impacted and most in need of assistance.

These communities are on their own and their government is not coming to their aide. This is unacceptable though not unfamiliar.

Vernice Miller-Travis is executive vice president for environment and sustainability of the Metropolitan Group.

Pandemic's Other Casualty: Expertise
Author
Rena Steinzor - University of Maryland
University of Maryland
Current Issue
Issue
5
Parent Article

As the country prays for relief from the global pandemic, what have we learned that could help us protect the environment better? Most alarming, I would argue, are COVID-19’s revelations about the power of conspiracy theories and the antipathy they generate toward scientific experts.

Take “America’s Doctor” and the dark rumors percolating on right-wing websites. Anthony Fauci is a “Deep-State Hillary Clinton-loving stooge.” He was paid off to the tune of $100 million by Bill Gates, who has invested heavily in the development of vaccines for COVID-19 and corruptly opposes chloroquine, a life-saving cure. The genesis of the pandemic was a Chinese virology lab, where scientists deliberately created frankenviruses.

Crazy conspiracy theories have alarming traction. The Pew Research Center surveyed 10,957 U.S. adults last spring and found that 43 percent say they have a “great deal of confidence” in medical scientists to act in the public interest, up from a measly 35 percent before the pandemic. But the upturn, which still accounts for less than half of respondents, broke down along party lines: only 31 percent of Republicans and GOP-leaning independents had faith in expertise.

Shifting arenas, in 2012, Donald Trump said climate change is a hoax invented by the Chinese. During a spate of cold weather in January 2014, he said it was a hoax perpetrated “by scientists [who] are having a lot of fun.” By 2016, he denied calling the problem a hoax during a presidential debate. In 2019, he withdrew the U.S. from the Paris climate accord. A 23-country survey conducted by the YouGov-Cambridge Globalism Project in 2019 found that 13 percent of Americans said climate changes were not affected by human activities, and 5 percent said the climate was not changing. Only Saudi Arabia and Indonesia have larger numbers of climate deniers.

A group of psychologists has produced a short pamphlet explaining how we can spot COVID-19 conspiracy theories. Conspiratorial claims are contradictory, betray overriding suspicion, allege nefarious intent, claim persecuted victimhood, and are immune to evidence, among other characteristics. Common attacks on proposals to mitigate climate change resonate here.

Scientists have a vested interest in more research and exaggerate the nature of global warming. The problem may be happening, but it’s not as bad as the scientists tell us. Even when scientists tell us we are in big trouble, their evidence is not as certain as they sound. Cutting greenhouse gas emissions would be ruinously expensive and would cause more harm than good. Loser countries like China want to hold us back as they sprint ahead. If the weather gets cold for a few days, it must mean the planet is not warming.

Of course, attitudes towards scientific experts are only one piece of the climate change puzzle. But those intent on slowing any advance toward mitigation spend a disproportionate amount of time and money disputing the exceedingly strong scientific consensus that changes are happening at a much faster rate than anticipated and, unless we take action soon, the planet will be in deep trouble. Even if those efforts focus on deconstructing (proponents would say energetically criticizing) individual studies, their cumulative effect is to suggest to Americans that after decades of study across multiple disciplines engaged in by many thousands of scientists, the world’s experts still don’t know what they are talking about.

The erosion of confidence in expertise, especially scientific expertise, will leave the regulatory system high and dry, susceptible to political currents that are quite powerful. The campaign against environmental regulation is operating at a fever pitch. Many commentators focus on the frequent losses the Trump administration is experiencing in the lower courts. They argue, with some justification, that, in the immortal words of former Trump guru Steve Bannon, progress toward “deconstructing the administrative state” is slower than it appears. But this optimistic perspective overlooks the hollowing out of EPA, where scientists and other career experts have left in droves. It will take years to restore the agency’s deliberative processes.

Meanwhile, the pendulum is likely to swing back — at least partially — on Capitol Hill, generating legislation that a Democratic president would sign and that could be self-implementing. Companies need permits and licenses and citizen suit provisions remain on the books. A workforce with a dearth of experts could be exasperatingly slow in some respects and irrationally fast in others. Stability and certainty would continue to fade as confidence in expertise remains a minority opinion.

I often ask myself how we got to the point where expertise became so devalued. The Trump base, so often stirred into rage against elites, is one answer, and that faction isn’t going anywhere, no matter what happens in November. Yet the campaign to discredit science that documents severe problems like climate change was created by elites who could now reap the whirlwind of what they have sown. The outcome won’t be good for any of us.

Rena Steinzor is the Edward M. Robertson Professor at the University of Maryland Carey Law School.

Catastrophe and Wide Ecological Impacts Are at Core of Our Species
Author
Craig M. Pease - Scientist and Former Law School Professor
Scientist and Former Law School Professor
Current Issue
Issue
4
Craig M. Pease

What for me is the very essence of science directly opposes the utilitarian and rather sterile way it enters environmental law. Thus I do not see the primary purpose of science to be in answering the typically dry questions that are part of narrowly framed legal issues. Rather, science is about a sense of wonder.

Of late, I have been pondering some ideas on the nexus of the environment and coronavirus, a circuitous journey starting with hydrogen cyanide, then to small particulate matter, exosomes, immunology, vitamin D, zinc, nutrient content of modern grains, hunter-gatherers, human biomass, black death, grooming in chimpanzees, and the evolution of the human brain.

Our travels start with an early May interview of the physician Zach Bush, laying out a little of the evidence connecting COVID-19 mortality to the air pollutants hydrogen cyanide and small particulate matter. He explains how viruses (not just coronavirus) are pervasive, abundant, and diverse — they are literally everywhere, including the human gut, bloodstream, and even as retroviruses in our DNA. Living organisms continually shed viruses and other particles; those exosomes are a way of communicating genetic information among living organisms. Bush states provocatively that humans are literally made of viruses.

Thence traipse over to the early May interview of the immunologist Delores Cahill on biosafety, nutrition, and immune function. She cites evidence that zinc and vitamin D enhance immune system function. Briefly detour to the 2011 Scientific American article on how the Green Revolution has led to a dramatic decline of the mineral and vitamin content of vegetables and grains. Even in allegedly developed countries like the United States, a huge majority of the population suffers deficiencies of minerals and vitamins such as magnesium, zinc, and vitamin D. The legacy of modern farming technology is that developed countries no longer suffer famines of inadequate calories, but rather famines of inadequate micronutrients.

Next stop off for a look at the applied mathematicians Pasquale Cirillo and Nassin Taleb’s recent paper characterizing epidemics of infectious disease through human history, with a disconcerting conclusion: Time and time again human societies have been swept by major pandemics that kill over 10 percent of the population. Just try to square that with the view that humans are made of viruses.

Now ponder the last 10,000 years of human history, commencing with essentially everyone being a hunter-gatherer, to the present economic societies, grounded in fossil fuels, and dominated by dense urban populations. Very roughly, for every one human alive then, there are 5,000 alive now.

Astonishingly, in a 2018 paper the biologist Yinon Bar-On and his colleagues show the biomass of all humans now living is nearly 10 times that of all wild mammals combined. The Earth’s human population is more dominant than any species that has ever existed on the planet. And as regards coronavirus, it is entirely uncontroversial that epidemics spread more readily in dense, large populations; see the epidemiologist Paul Fine’s 1991 review of herd immunity, and the epidemiologist Erin Bromage’s summary of recent coronavirus contact-tracing studies.

Primates are social animals, and humans are primates. Meander on over to the anthropological literature, and imbibe some of the studies on chimpanzee grooming, which behavior removes ticks and other disease vectors. Isn’t it interesting that grooming — unlike quarantines, social distancing, and sundry edicts from governors — increases social cohesion of the troop?

The philosopher John Gray writes, “Apocalypse is the normal course of [human] history.” War, civil strife, famine, and pandemics have for millennia been deeply embedded in human society. In retrospect, it is not surprising that the society of such a dominant and evolutionarily novel species is subject to repeated convulsions, like this coronavirus.

Our brain is what sets humans apart from all other species. And recent evidence suggests that it evolved to allow us to more effectively exploit the environment — we have been triggering environmental catastrophe for literally millions of years. See the natural historian SØren Faurby and colleagues’ paper from earlier this year, arguing that as the human brain evolved and increased in size in the African savannah over the last several million years, there were widespread, cascading extinctions as a result.

One might hope that environmental law would counter some of the human species’ more deleterious impacts. Yet the challenge is huge. Catastrophe and widespread impacts on the environment are deeply ingrained in our genes and society, going back literally to the dawn of consciousness.

Catastrophe and Wide Ecological Impacts Are at Core of Our Species.

Movers & Shakers
Author
Anna Beeman - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
3

Movers

Emily Boedecker has stepped down from her position as commissioner of the Vermont Department of Environmental Conservation. Deputy Secretary of the Vermont Agency of Natural Resources, Peter Walke will now lead the agency.

The American Exploration & Production Council welcomes Liz Bowman as vice president for communications. Bowman comes from a senior communications position at the American Petroleum Institute.

John Busterud takes the helm as the head of EPA Region 9, located in California. Busterud was formerly a lawyer at Pacific Gas & Electric Co.

Steptoe & Johnson LLP’s Washington, D.C., office has tapped Donna Byrne as partner and John Perkins as counsel. Both are former FERC attorneys, and will work on issues surrounding FERC compliance and enforcement.

The Energy Storage Association has announced that Marc Chupka will step into the role of vice president of research and programs. Chupka was most recently advising at the Brattle Group.

James Danly has been appointed as a new commissioner of FERC after serving as its general counsel.

The Environmental Defense Center welcomes Elizabeth Fisher as staff attorney, Daniel Elkin as office manager and event coordinator, and Jessica Dias as development coordinator.

Lindsee Gentry will serve as director of FERC’s Office of External Affairs after serving as the deputy director.

South Dakota State University announced that Bill Gibbons has been named the director of the South Dakota Agricultural Experimental Station, as well as the associate dean of research for the College of Agriculture, Food, and Environmental Sciences. He was a winner of the ELI National Wetlands Award in 2018.

Kaitlynn Glover is now the executive director for the Public Lands Council. She previously oversaw agriculture and public lands issues in the office of Senator John Barrasso.

Keith B. Hall takes the helm as the director of Louisiana State University John P. Laborde Energy Law Center after serving as interim director for a year.

The Lewis & Clark Law School’s Green Energy Institute welcomes Arthur Haubenstock as the new executive director. Haubenstock was most recently the principal of consulting firm Strategies & Solutions for Energy & the Environment.

Earthjustice has tapped Addie Haughey as legislative director for lands, wildlife, and oceans. Haughey was previously the associate director of government relations at the Ocean Conservancy.

Hawaii Governor David Ige has appointed Kathleen S.Y. Ho as the director of the Office of Environmental Quality Control in the Hawaii Department of Health. Ho most recently served as deputy attorney general in the Health Division.

EPA Chief of Staff Ryan Jackson has stepped down from his role to join the National Mining Association.

Michelle Lane has joined the National Park Foundation as vice president of government relations. She takes on this role after working for the Senate Energy and Natural Resources Committee.

The Sabin Center for Climate Change Law at Columbia University welcomes Daniel Metzger as a climate law fellow. He comes from law firm Selendy & Gay, and was a former member of ELI and Vanderbilt University Law School’s Environmental Law and Policy Annual Review.

Gary C. Rikard has left his post as executive director of the Mississippi Department of Environmental Quality and has rejoined Butler Snow’s regulatory and government practice.

Jim Sanderson and Julie Rosen, both lawyers with experience in air and water quality permitting and compliance, regulation development, and environmental litigation, are joining Welborn Sullivan Meck & Tooley, P.C.’s Denver office. The firm also announced the promotion of Allison Mac-Kinnon to shareholder, where she will continue to work on oil and gas transactions.

Aurelia Skipwith has been appointed director at the U.S. Fish and Wildlife Service. She most recently was the deputy assistant secretary for Fish and Wildlife and Parks at the Department of the Interior.

Former counsel and chief of staff for the U.S. Department of Justice’s Environment and Natural Resources Division Corinne Snow returns to Vinson & Elkins’s environmental practice group.

Beveridge & Diamond has selected Kathy Szmuszkovicz as managing principal. Szmuszkovicz will continue to chair the firm’s pesticides and biotechnology practices.

Gautam Srinivasan has been promoted from acting to permanent associate general counsel for the Air and Radiation Law Office at EPA.

Kurt Thiede, former deputy secretary of the Wisconsin Department of Natural Resources, will lead EPA Region 5 as its new administrator.

Gary Torres now heads the Bureau of Land Management’s Eastern States Office. He will oversee mineral estates across the eastern states.

Andrew Varcoe, formerly a partner at Boyden Gray & Associates, is now special assistant to the president and associate White House counsel, focusing on energy, environmental, and natural resources law and policy issues.

Sarah Venuto, a staffer on the Senate Energy and Natural Resources Committee, has joined Duke Energy as the vice president of public policy.

Energy and natural resources attorney Eric Waeckerlin has joined Brownstein Hyatt Farber Schreck LLP as a shareholder at the firm’s Denver and Cheyenne offices.

Riker Danzig Scherer Hyland & Perretti LLP announced that partners Jeffrey Wagenbach and Steven Senior will co-chair the firm’s environmental law practice. Current chair Dennis Krumholz will continue to practice with the firm.

Smith Husley & Busey welcomes John Wallace as a shareholder at the Florida-based firm. His focus is on real estate, environmental law, and land use and zoning law.

Laura Watson has been named as director of the Washington State Department of Ecology. She takes on this role after serving as senior assistant attorney general in the Ecology Division of the attorney general’s office.

Defenders of Wildlife has selected Ted Weber as a climate adaptation policy analyst. He was most recently at the Conservation Fund as strategic conservation science manager.

Andrea Wolfman joins Davis Wright Tremaine LLP’s D.C. office in their East Coast energy practice. Wolfman brings over 24 years of experience in energy issues as the former head of enforcement at FERC.

 

Shakers

Linda Breggin, ELI senior attorney and Vanderbilt Law School lecturer, and Eric Kopstain, Vanderbilt University vice chancellor for administration, have been selected to co-chair the Nashville Sustainability Advisory Committee.

Allan Gates has been named the president of the American College of Environmental Lawyers Foundation. Gates is of counsel at Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. in Little Rock, AR, and practices in areas of environmental regulation and litigation.

David Hackett, partner at Baker & McKenzie, has been appointed chair of the World Business Council for Sustainable Development North American Board.

Mark Helsing now serves as the board chairman of the Environmental Defense Fund. He is the founder of investment firm Medley Partners.

James Hoecker, former FERC chairman and current senior counsel and energy strategist at Husch Blackwell LLP, will be heading the Railroad Electrification Council, a group to assess and promote rail electrification.

Westchester Parks Foundation has elected Seth M. Mandelbaum as chair of the foundation’s board of directors. Mandelbaum is currently a managing partner at McCullough, Goldberger & Staudt, LLP, in White Plains, NY.

The Harvard University climate center has tapped NRDC president Gina McCarthy as the board chair. Former Secretary of State John Kerry has also joined the board as an advisory member.

 

Memorial

Andy Savitz passed away on January 29 at 66 years old. Savitz was most recently the principal of consulting firm Sustainable Business Strategies in Boston. He carried over 25 years of experience on advising companies on sustainability strategy and program development, and was known for working with large players in the food, agriculture, and restaurant industries.

A Rhodes Scholar, his early environmental career included his role as assistant secretary for law enforcement in the Massachusetts executive office of environmental affairs, later as chief of the state’s Environmental Crime Strike Force, as well as a partner in the sustainability services practice with PricewaterhouseCoopers.

At ELI, Savitz was an instrumental figure in shaping the first judicial training program. He is remembered by his colleagues and friends as an environmental and sustainability expert who was innovative and thought creatively about environmental enforcement and improvements by corporations seeking the bottom line success of sustainability.

Colleagues' New Jobs, Promotions, and Achievements.

Themes to Consider in Preparing for the Next Global Emergency
Author
Sally R. K. Fisk - Pfizer Inc.
Pfizer Inc.
Current Issue
Issue
3
Sally R. K. Fisk

It is difficult to know during the middle of a crisis what the most important lessons will be for the inevitable pandemics of the future, but three themes are emerging concerning the response to COVID-19.

The first is the importance of science-based decisionmaking. We had warnings from epidemiologists and physicians that the virus had the potential to be a pandemic. Governments around the world responded to the calls for action with varying levels of urgency. Those countries that took the science seriously are faring better.

The importance of science in formulating the global response reminds many people starkly of climate change, where we also have experts warning of the potential for millions of deaths. Yet the science has been so politicized that the opportunity for urgent action has been lost, denying humanity the opportunity to make needed changes gradually. We don’t want to respond to climate change the way we are now having to respond to the pandemic. For climate change, we must act with the urgency of a pandemic, but with the strategy of a long-term and just transition.

The second theme is the need for corporate collaboration and public-private partnerships for the good of the community. For many companies facing coronavirus, this means protecting employees, their families, their neighborhoods, and the global community through targeted collaboration. We are seeing companies in the biopharmaceutical sector announce new collaborations to leverage strengths to respond to critical needs — such as Pfizer’s announcement of vaccine research collaboration with BioNTech as part of its five-point plan to share tools and insights; marshal our people; apply our drug-development expertise; offer our manufacturing capabilities; and improve future pandemic rapid response. Other companies are shifting their manufacturing to make products that are in shortage — Hanes is producing surgical masks and Estée Lauder is switching from cosmetics to hand sanitizers. Each is quickly transitioning from business as usual to remain relevant. And governments are speeding approvals and eliminating roadblocks.

For many companies, this behavior reflects the movement toward purpose-driven growth and recognition of stakeholders beyond shareholders — outlined by members of the Business Roundtable in its 2019 letter. The missive articulated CEO commitment to delivering value to customers; investing in employees; dealing fairly and ethically with suppliers; supporting the communities in which they work, including respect for people and protection of the environment; and generating long-term value for shareholders. Coronavirus is a wake-up call. We should continue to foster collaboration and a community mindset among the world’s large and small companies alike in partnership with government if we are to avoid or mitigate future crises.

The third theme that COVID-19 illustrates is the extent to which we are an interconnected species — impacts in one corner of our small planet quickly reverberate across the globe. It also highlights the interconnectedness of ecological health, and the human-animal interface which can give rise to zoonoses such as COVID-19. As UN Environment noted, “From the point of view of the environmental community, it is important to address the multiple and often interacting threats to ecosystems and wildlife to prevent zoonoses from emerging, including habitat loss and fragmentation, illegal trade, pollution, invasive species, and, increasingly, climate change.” Whether it’s transmission of a novel virus or emissions of greenhouse gases, our actions impact our entire species and all the other species as well.

Once we have solved the COVID-19 crisis — likely through a vaccine or treatments — and as we restart our economies and societies, we should not do so blindly and risk repeating the same mistakes; rather, we should take time to reflect on what we have learned. What do we really need as a society and what can we eliminate that generates more pollution and stress on our systems than benefit? Who has weathered the crisis well, and on whom has it taken the greatest toll? How do we protect those who are most vulnerable to pandemics and climate-related crises? How do we reward those who have been most courageous? How do we advance a “one health” approach to address the root cause of this pandemic — recognizing that environmental degradation and human-animal interconnectedness are coupled? How do we ensure we can quickly pivot to address the next global crisis? And how do we ensure policies and legal frameworks are robust and protective enough to help us weather the next challenge?

We need to be guided by good science; build and sustain collaboration; and recognize the interconnected nature of ecological, animal, and human health. Addressing those three themes may help us answer these questions.

Themes to Consider in Preparing for the Next Global Emergency.

Data From Expanded Surveillance Shows the Value of Information
Author
Joseph E. Aldy - Harvard Kennedy School
Harvard Kennedy School
Current Issue
Issue
3
Joseph E. Aldy

Coronavirus has illustrated the critical, growing importance of surveillance in managing public health risks. The governments that implemented timely, aggressive testing of their populations — such as South Korea — were able to craft targeted containment measures to limit the infections in their societies, while those governments that lagged dramatically in the scope and speed of testing found their people bearing greater health risks and their economies experiencing more precipitous falls in output. These stark differences illustrate the value of information produced through surveillance, which also motivates an array of monitoring, reporting, and related data compilation efforts in the environmental realm. This promotes sound policy, provided there are adequate privacy safeguards.

Surveillance represents the systematic collection and analysis of information that can provide the evidence for effective responses to environmental and health risks. Let me illustrate the value of such information in a variety of environmental policy contexts.

In implementing the Clean Air Act, EPA identifies health risks by integrating air quality data from its monitoring of ambient concentrations of ozone, fine particulate matter, and other pollutants with an epidemiological understanding of the health risks posed by these pollutants. Based on this evidence, EPA has implemented regulations — technology standards, performance standards, and cap-and-trade programs — that target the communities across the country experiencing high and unhealthy levels of air pollution.

In reviewing the performance of these air quality rules, researchers have compiled and analyzed data to show that these regulations have reduced pollutant emissions, ambient concentrations, premature mortality, and medical expenditures, while increasing labor force participation and labor compensation. Both the targeted design and the evaluation of policy performance requires a robust system of monitoring and data collection across environmental, health, and economic domains.

Publicizing environmental quality and public health information can facilitate behavioral changes that reduce exposure to health risks. Consider two examples. Lori Bennear of Duke University and Sheila Olmstead of the University of Texas evaluated a requirement under the Safe Drinking Water Act that community water suppliers have to inform their customers of their compliance with water quality standards. The two evaluated a wrinkle in the rule to assess the role of information. Small servers only have to post notice in public places (e.g., the town hall), while larger utilities have to mail this information annually to every customer. The researchers found that after larger suppliers began mailing notices, their violations of health standards fell by half. Such publicity empowered customers to hold accountable their water companies.

Combining monitoring data with models has enabled governments around the world to predict the next day’s air quality. In response, individuals change their behavior, as evident both in reduced outdoor recreation in response to Los Angeles smog alerts as well as increased online search activity for masks in response to Beijing air quality forecasts. Such actionable information that allows individuals to reduce their exposure to a risk complements well government regulations.

Surveillance plays a critical role in multilateral efforts to address global challenges, such as climate change. Countries report on their greenhouse gas emissions and their policy efforts to mitigate those emissions, which are then subjected to both expert review and peer review. Publicizing such performance can build trust in multilateral climate agreements, identify those countries with effective efforts that could be emulated, and shame laggards.

Opportunities for new tech and related data sources can further enhance the information about environmental and health risks. For example, remote sensing and drone monitoring can improve our understanding of pollution concentrations well beyond the proximity of an in situ monitor. Statistical and machine-learning tools can exploit big data sets to extract information signals about emerging risks. Social media activity, such as tweets and online searches, can likewise provide information about how individuals perceive or respond to environmental risks.

As the response to the coronavirus has shown, surveillance of environmental and health risks can ensure that policymakers have the information they need to craft effective public policy. With the potential for new, unexpected risks, as well as the prospect that some regulations and policies don’t work as well as envisioned, a robust surveillance system with appropriate safeguards is important to mitigate environmental and health risks. Making such information available to the broader public can also increase the likelihood that policymakers will be held accountable for implementing policies to protect the public health.

Data From Expanded Surveillance Shows the Value of Information.