<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>
<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>
<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>
<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>
<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>
<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"…;
<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>
<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…;
<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>
<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>
<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>
<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>
<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>
<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;
<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>
<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>
<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>
<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…;
<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>
<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…;
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<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>
<p>The differences between federal and state court systems are discussed here <a href="http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jur…;
<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>
<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>
<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>
<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>
<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>
<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;
<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>
<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;

Overcoming Barriers Created by Cost Share Requirements: Considerations for advancing natural infrastructure throughout the Mississippi River Basin
Cecilia Diedrich
Sofia O'Connor
Isabella Blanco
Date Released
December 2023
Cost Share Report Cover

The federal government administers many programs to help states, local communities, tribes, and territories as they undertake infrastructure projects of all types, including resilience measures and natural infrastructure aimed at mitigating risks from natural hazards and disasters. The increasing impacts of climate change make investment in these project types more important than ever to help prepare and protect communities across the country. While this work is paramount, it comes with a high price tag.

A Toolkit for Implementing Share Tables in Municipal Schools
Linda Breggin
Sarah Backer
Margaret Badding
Jessica Sugarman
Date Released
September 2023
Front cover of a toolkit for share tables in municipal schools.

Share tables, also known as “sharing tables,” are designated areas within schools where students can place or return whole or unopened food and drinks they do not want. Students who want additional food can enjoy the items during the meal service at no cost. Accordingly, share table programs can help reduce food waste while enabling students from food-insecure households to access healthy foods more easily. Many schools across the country have instituted share tables.

Climate ‘Madness’: Public Finance Abetting Gas and Oil in Suriname
Bruce Rich - Attorney and Author
Attorney and Author
Current Issue
Bruce Rich

On March 21, UN Secretary General Antonio Guterres offered a bleak assessment in the aftermath of the 26th Conference of the Parties to the U.N. Climate Convention. Glasgow offered a ray of hope that governments and the private sector might take stronger actions to promote a climate-friendly world economy. Guterres said that these hopes were “naïve optimism,” that virtually no concrete follow-up has occurred, and that the world is “sleepwalking to climate catastrophe.” Worse, the Russian war in Ukraine is pushing governments to seek other sources of oil and gas, with the effect that they “kneecap policies to reduce fossil fuel use.” “This is madness,” he lamented.

An example of sleepwalking to climate catastrophe is the massive international public finance abetting exploitation of the world’s largest newly discovered offshore oil and gas deposits, along the coast of Guyana and Suriname. At the very least one would expect development institutions supported by richer nations to encourage reduced fossil fuel production. This column examined in early 2021 investments of ExxonMobil and the Chinese oil company CNOOC off the coast of Guyana, facilitated in part through loans by the World Bank and Inter-American Development Bank. Rather than reconsidering this approach, these institutions have doubled down, as if the Glasgow agreements took place on a different planet.

Next door to Guyana, oil exploration off the shore of Suriname has found so far an estimated 3 to 4 billion barrels of reserves. Last year the New York Times reported that Exxon, Shell, Total, and Apache (now APA corporation) were “gearing up operations” in Suriname. Chevron and Petronas, the Malaysian oil giant, are also involved. Fifteen or more new wells are planned for development over the coming months.

Since 2019 the IDB, International Monetary Fund, and World Bank approved $805.5 million in government budget support and specific fossil fuel-related investments in Suriname, whose population is only 596,000. These loans included $34.5 million from the IDB for technical assistance in the natural gas sector and port expansion for offshore oil services, a $23 million World Bank loan for extractive industries technical assistance, and another IDB loan of $50 million for budget support last March.

The IDB and World Bank are preparing another $280 to $550 million to be approved in the near future, to support the debt-ridden nation’s government. Suriname defaulted on its sovereign bond payments last year. The IMF approved a 36-month $688 million budget support loan last December, to be disbursed over exactly the period of the most intensive oil and gas development. Such “non-project” loans have no provisions for excluding their use for oil and gas development.

This multilateral funding is oriented to sustain the Suriname government until fossil fuel revenues start flowing in 2025. A study by the German NGO Urgewald notes that the IMF and IDB lending programs impose austerity measures to raise income, such as increasing electric tariffs (“which has led to social unrest in the past”), a new value-added tax, and reducing public employment costs—measures which all disproportionately affect the poor.

The IMF claims its bailout has nothing to do with oil and gas development, and that its program will “soften negative impacts from program adjustments on the most vulnerable,” inter alia, through a 0.5 percent increase in government payments to the poor. But the IMF and IDB loans do not address what is fiscally much more important—the bad financial deal of the fossil fuel contracts offered by the government. The royalty rate is 6.25 percent, while the average rate in developing nations, according to the New York Times, is around 16 percent. The foreign contractors are exempt from Suriname import and export taxes. As in the Guyana contracts, most of the income—80 percent—goes to the fossil fuel companies until exploration and development costs are paid back. The remaining 20 percent is divided between the companies and the Suriname government by a “recovery ratio” which gives little to the Suriname government at the outset. In desperate financial straits, Suriname offered the world’s major fossil fuel companies one of the cheapest new extraction deals on the planet.

The over $1.3 billion which the international financial institutions are lending Suriname amount to more than $2,300 in additional official debt for every inhabitant of the country. These loans are de facto subsidies to accelerate climate change, and multinational gas and oil profits, with few long-term sustainable benefits for the country’s inhabitants. This indeed is madness.

Climate ‘Madness’: Public Finance Abetting Gas and Oil in Suriname

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


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.


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.


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
Adam Babich - Tulane Law School
Tulane Law School
Current Issue
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
Stephen Harper - Intel Corporation
Intel Corporation
Current Issue
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
Vernice Miller-Travis - Metropolitan Group
Metropolitan Group
Current Issue
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
Rena Steinzor - University of Maryland
University of Maryland
Current Issue
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.

Healthy Reform of Infrastructure Reviews
Manisha D. Patel - WSP-USA Inc.
Current Issue
Parent Article

The National Environmental Policy Act is a marvel of bipartisan eloquence. Enacted almost 50 years ago to make federal agencies “look before they leap,” NEPA gives federal officials the tools to make informed decisions, in part by providing for public input. And yet due to a perception that its requirements unnecessarily slow down infrastructure projects, administrations of both parties and Congress have sought to “fix” the process. What NEPA needs now, rather than even more reform, is a proper chance at implementation of the reforms of the last two decades.

President Trump issued Executive Order 13807 to accelerate the environmental review and permitting for complex infrastructure projects that require an Environmental Impact Statement under the law. The EO establishes a two-year goal for completing an EIS, in most cases requiring a single NEPA Record of Decision to be issued jointly by all federal agencies whose approval or review is needed for a project. It also requires all other federal permits and approvals to be issued within 90 days after the EIS.

This executive order is just the most recent in a line of efforts to improve the environmental review and permitting process. It follows environmental streamlining provisions included by Congress in transportation legislation like SAFETE-LU, MAP-21, and the FAST Act, as well as President George W. Bush’s Executive Order 13274 and President Obama’s Executive Order 13604.

There’s no mystery about the desire to find a way to plan, design, and construct projects more quickly. Our nation’s infrastructure is in dire need of repair and replacement. Modernizing the networks that make life as we know it possible — for transportation, energy, water, waste, and information — is literally an opportunity to build the foundation for America’s future prosperity. Thus, proffering solutions to remedy the perceived barrier to progress that is imposed by NEPA review is a siren call that few can resist.

But the reality is that NEPA is not the only, or even the primary, impediment to delivering faster, better, and cheaper infrastructure projects. In 2012, the Congressional Research Service concluded that evidence shows overwhelmingly that the causes of delay are more often tied to agency priorities or project-specific factors, such as funding levels, local opposition, complexity, or late changes in project scope.

That is not to say that there isn’t room for improvement. There is. As I know from experience, NEPA documentation could be far more concise and reader-friendly. Categorical Exclusions (the simplest, most straightforward level of review under the statute) could be shared across all involved agencies. Redundant reviews and conflicting agency processes could be eliminated. And the list goes on, depending on whom you ask.

My point here is that rather than continuing to make radical changes to a foundational environmental statue, we should engage in thoughtful implementation of the streamlining efforts we already have on the books. Otherwise, the danger is that changing the process every few years in response to the desires of a new Congress or administration may result in an overly complicated jumble that increases confusion, delay, costs, and litigation — to the satisfaction of none of the involved parties.

Rather than a patchwork of reforms, the agencies, companies, and other stakeholders involved in delivering our country’s infrastructure projects need a consistent process. We need greater predictability in process rather than unrealistic acceleration of reform goals.

Agencies, project sponsors, and community stakeholders can use the NEPA process, as it stands today, to deliver faster, better, cheaper projects by working collaboratively to identify issues and earnestly striving to avoid, minimize, and mitigate impacts.

The formula for success is straightforward. At the very beginning of a project, all stakeholders — including federal and state regulatory agencies — should engage in meaningful coordination to reveal innovative solutions and uncover hidden pitfalls. Doing that can have a real payoff for all affected parties.

Next, the agencies involved should work concurrently rather than sequentially in preparing their analyses and documentation.

Finally, each project needs a champion within every agency involved to move the ball along. By building on the successful strategies of its predecessors, Trump’s Executive Order 13807 provides federal agencies a framework for using this formula. It’s time to allow agencies to implement this framework.

Attempts to streamline the NEPA process will continue. My hope is that additional reforms will make the procedure more efficient while maintaining critical protections for our valuable natural resources and producing positive outcomes for affected communities.