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Message From the President

Earth Day 2019

Working since 1969 to build effective governance and rule of law in the environmental space, both here and abroad, through our special mix of publishing, research, convening, and educational programming, the Environmental Law Institute is a big tent—a place where people of all stripes, walks, and perspectives have and continue to come together even in the most turbulent of times.

Indeed, our members, project partners, and staff come from many different places and represent a diverse set of sectors and interests, yet we all understand the central importance of law in driving environmental behaviors. And so, what better day than Earth Day (the first one of which was organized with the help of original ELI Board Member Sydney Howe) to reflect on our common goal of a healthy environment founded on the rule of law.

That recognition is what brought me to the environmental law practice nearly 40 years ago, a decision that stands as one of my best. For me, this has proven to be an endlessly stimulating and rewarding pursuit. One that drops you in the center of humankind’s eternal challenge to reckon with its toll on the natural world and to maintain environmental public health. It is an area with lots of variability, change, and potential for growth—and one that calls for optimal resourcefulness in solving problems.

In our field, if ever things start to level out, something always shakes things up. Sometimes, more than we might have imagined.

The Trump Administration has been a shake-up moment to be sure—one that has changed the points of emphasis for environmental law and policy, reopened some seemingly settled legal terrain, and that has questioned the basic mechanics of how this work of environmental protection is done.

We see some of the most significant rules of the prior Administration—such as the Clean Power Plan, and the Waters of the United States rule—being reversed or replaced, with new litigation materializing at every turn on the road to such changes.

We see regulatory reform efforts like the so-called two-for-one executive order (two rules taken down for every new rule) and zero-budgeting for regulatory costs, and science transparency measures, changing the mechanics of environmental regulation, in some cases creating tension with the very statutes that regulations are supposed to effectuate.

We see cooperative federalism and the idea of devolving programs to the states emerging as a rallying cry for reductions in federal resources to do this work, a subject on which we recently published a report, the Macbeth Report, in honor and memory of our departed colleague Angus Macbeth.

Add to all of this a changing legislative landscape, as well as changes in the dynamics that surround environmental protection. The world around us is reshaping itself. And I’m not talking about the near term give-and-take of politics. Rather, I’m talking about longer term trends.

There is a substantive dimension to this season of change. Sustainability has moved from what many once regarded as a trendy idea to an enduring presence in the corporate and international spheres. A presence solidified by the establishment of the Sustainable Development Goals a couple of years ago—goals that are proving much more influential than many expected. A presence driven more by enculturated values that animate shareholder and customer demands than by the requirements of government. These values are proving relatively unaffected and uninfluenced by the changing winds of politics, with most companies more interested in the long game than the short game. And sustainability is the long game.

There is also a mechanistic side to this, with the machinery that is driving us toward a more sustainable future bringing with it important new dimensions. Sustainability-oriented private environmental governance systems and advances in technology like the explosion of low-cost sensor technology are redefining environmental behavior. With the advent of AI and the growth of social media-sharing platforms for sharing environmental big data, these dynamics promise to increasingly drive our behaviors as citizens, customers, shareholders, and investors.

The name of the game for regulated entities is now much broader than compliance management; it is about managing against reputational and financial risks and harnessing market opportunities that can come from green branding.

This is rather good news, in that, based on a U.N. report that ELI recently authored (Environmental Rule of Law: First Global Report), governments around the world are struggling to deliver the promises of environmental law and need shoring up through complementary measures.

Add further to all of this the intensification of global environmental challenges like climate change, biodiversity loss, ocean degradation, and fisheries depletion.

A few weeks ago, I was with a group of leading environmental lawyers at the Wingspread retreat center in Racine, Wisconsin, to reimagine together where environmental law needs to move in the future, particularly in light of the mega challenges of our times. We recognized that while law can enable a response to such problems, law can also emerge as a barrier to solutions. For example, the group was deeply challenged by the obstacles to rapid deployment of renewable energy technology presented by procedural statutes like the ESA and NEPA, which local opponents of renewables projects have used to impede wind and solar projects.

How should environmental benefits be balanced in such circumstances? Should procedural statutes and localized impacts yield when the broader environmental benefits strongly favor the project? How should an industrial-scale project like transformation of our energy system be seen under these statutes? What about the building of sea walls to protect our coastal zones?

And the shifting sands around issues like climate change is building energy for new expression of old doctrines like public trust, and reexamination of the extent to which the U.S. Constitution provides a home for environmental and sustainability values.

This is but a sampling of the important and fascinating questions that environmental law will face in the future. And people like you will have a decisive voice in their sorting.

—Scott Fulton