Webinar series tracks turmoil at federal agencies

In a time of rapid change in environmental law and policy, understanding how federal agencies function—and the roles they play—is more important than ever. Agencies can be complex in their structure, purpose, and history, and their impact on our lives is often overlooked or misunderstood.

To help demystify this critical part of the environmental landscape, ELI has launched a new webinar series, Agency ABCs. This series explores the missions, structures, and services of key federal agencies, offering clear, accessible insights into how they shape environmental policy and practice.

Federal laws and institutions form the backbone of much of our system for addressing environmental challenges. Agencies play the leading role in this structure, administering and enforcing federal laws by spending congressionally appropriated funds, promulgating rules, and adjudicating specific cases. This all has a direct impact on how environmental policies are implemented, enforced, and upheld.

The first installment focused on the Federal Emergency Management Agency. Established in 1979, FEMA lies within the Department of Homeland Security and has a mission to help individuals and communities “before, during, and after” disasters. It plays a critical role in emergency management and response, one that is increasingly important as disasters occur at a more frequent pace and more extreme levels.

Yet at a time when billion-dollar disasters are reaching historic highs, this longstanding, nonpolitical mission has been called into question. ELI convened a panel of experts on FEMA and federal disaster mitigation to talk about the function of the agency and the importance of coordinated emergency management at the federal, state, and local levels. Together, the panelists covered the role FEMA plays before, during, and after emergency events and how the agency works with communities.

The second webinar turned to oceans and weather, highlighting the National Oceanic and Atmospheric Administration. NOAA’s mission since its establishment in 1970 is to “understand and predict changes in climate, weather, ocean, and coasts, to share that knowledge and information with others, and to conserve and manage coastal and marine ecosystems and resources.”

NOAA is deeply intertwined with environmental law and policy offering a variety of environmental services, including weather forecasts and severe storm warnings, climate monitoring, coastal conservation and restoration, fisheries management, and more. But recently, NOAA has experienced layoffs, the shuttering of websites, such as climate.gov, that serve the public, and more.

The panelists explained the impact that the cuts will have on NOAA, including the loss of habitat protection programs and the whole office of research. They also talked about all the ways that NOAA supports the public, and what these changes could mean for the future of forecasting and scientific understanding.

Recordings for these webinars are available to members in the event archive.

Fighting impacts of fashion trends, now a global industry

ELI hosted an in-office clothing swap, where staff had the opportunity to bring in new or gently used clothing and exchange with one another. Clothing was laid out in the conference room so people could walk around and see all of the options. At the end of the day, whatever clothing remained was donated to Bread for the City, a local nonprofit that facilitates community services including a food bank, legal assistance, and a clothing donation center.

The clothing swap was an opportunity not only to leave with some new pieces for one’s closet, but to invite discussion on the impact that fashion and clothing have on the environment. The rise of fast fashion, named for the rapid design, production, and distribution of clothing at very low costs, has contributed significantly to carbon emissions, water usage, and landfill growth.

In 2019, the average consumer bought 60 percent more pieces of clothing than 15 years earlier, but each item was only held on to for half as long. This means a staggering increase in the amount of textile waste filling landfills. The United Nations Environmental Program reported that one garbage truck’s worth of clothing is incinerated or sent to a landfill every second.

Beyond waste, the fashion industry is responsible for up to 8 percent of global carbon emissions and is the second-biggest consumer of water, with 700 gallons of water required for one cotton shirt. The industry is also responsible for water pollution from textile dyes, microplastics, and more.

There are steps that can be taken to ameliorate the impact of fashion on the environment. According to the UN, doubling the lifespan of clothing has the potential to reduce garments’ greenhouse gas emissions by 44 percent. Businesses can take intentional actions to reduce waste and improve resource efficiency, while consumers must make environmentally responsible decisions.

ELI’s clothing swap kicked off with a short presentation on clothing donation best practices, local donation centers where people could take their clothes, and ideas for how to repair clothes that cannot be donated.

Overcoming barriers to community composting

ELI, the Natural Resources Defense Council, and the Institute for Local Self-Reliance recently released a Model Municipal Ordinance on Advancing Community Composting. This template is designed to reduce regulatory barriers to, and provide opportunities for, this useful addition to the solid waste crisis. Advancing community composting is one way to help municipalities meet their climate and waste reduction goals while achieving various other benefits.

Over 30 percent of all food in the United States goes uneaten, at enormous financial, environmental, and social cost. Composting is not only a critical food waste reduction strategy, but it can also reduce methane emissions from landfilled organic waste, reduce the need for new landfills and incinerators, and produce a valuable soil amendment.

Community composting is designed to meet local needs, serve local interests, and engage the community in a variety of ways. This can include running educational programming on sustainability, providing local jobs, and promoting equity by filling gaps in access to waste services.

Unfortunately, community composters often encounter regulatory barriers at both the municipal and state levels that can hinder their ability to establish and sustain operations. Accordingly, the new model is intended to help municipalities by providing off-the-shelf legal language to address regulatory barriers that are unintended, unnecessary, or disproportionate to the expected benefits of applying the requirements.

The model requires a municipality to review, compile, and maintain an inventory of municipal ordinances and regulations that could apply to community composting operations and to determine whether any of them presents an unreasonable barrier. For any municipal ordinance or regulation that is determined to present a barrier, the model requires the municipality to reduce or eliminate the barrier to the extent practicable. The model also addresses specific barriers, including nuisance determinations, floodplain management, and licensing of organic material haulers.

The model also addresses the ways in which a municipality can provide opportunities for community composting, including promoting public awareness and education, offering technical assistance, and providing financial assistance.

Consensus Report Study finds courts are largely in agreement on climate science, but jurists remain reluctant to wade into politics

Climate change is a source of political controversy in the United States, and climate skepticism — or doubts about the basics of climate science — has periodically emerged in public debate. At the same time, U.S. courts in several high-profile cases, such as Juliana v. United States and City of Oakland v. BP p.l.c., while not finding for petitioners, have accepted as authoritative the science behind climate change, including its conclusions that the climate is warming, human activities are driving these changes, and that climate change will have disastrous consequences.

Given the growing number of cases involving climate change, the question remains whether these court decisions are representative of a broader trend in the judiciary or whether they are outliers. With support from the Institute’s Board of Directors, ELI commissioned a report, Climate Science in the Courts: A Review of U.S. and International Judicial Pronouncements, to analyze this question.

Authored by ELI Visiting Attorney Maria L. Banda and published in April, the report examines judicial pronouncements in climate-related proceedings since 2015, including in civil, administrative, constitutional, and criminal law matters, in the United States and in a dozen foreign jurisdictions.

The report finds vast consensus by U.S. and international courts on the causes, extent, urgency, and effects of climate change. Courts have described the science behind climate change as “substantial,” “copious,” and “overwhelming,” and have established a basic causal chain between human activities and current climate risks.

This consensus holds across different types of cases, including nuisance complaints, constitutional claims, and administrative law proceedings. It also holds true across state and federal courts in the United States and internationally.

This finding represents a major shift since early climate lawsuits, where climate skepticism was still relatively common among both judges and litigants. Courts have shifted from doubting climate science to unequivocally accepting the evidence for climate change.

One reason for this shift is the evolving nature of climate science. Federal agencies like the National Aeronautics and Space Administration, the Environmental Protection Agency, and the National Oceanic and Atmospheric Administration have generated a vast amount of climate data in recent years to underpin courts’ analyses. Courts in other countries have reviewed much of the same scientific evidence, including reports by the Intergovernmental Panel on Climate Change. In this sense, climate science has acted as a lingua franca across courts.

However, judicial consensus on climate science has not necessarily translated to judicial intervention. U.S. courts have remained generally conservative on climate action, frequently deferring to government agencies to address climate-related issues. This appears to be the case especially when it comes to constitutional or civil claims, which tend to use new legal theories or challenge threshold issues such as standing.

Judicial consensus on climate change plays an important role in shaping public understanding about climate science. Courts are among the most respected public institutions, and are often trusted to separate fact from fiction in a democratic society. Greater understanding of judicial conclusions on climate science could help move public consensus to align with this emerging judicial consensus. Finally, public awareness of how the courts analyze climate data may increase government accountability and galvanize political leaders to act on climate change.

Institute and partner work with Bozeman on water scarcity

With the support of the Turner Foundation, the Alliance for Water Efficiency and the Environmental Law Institute have worked with the City of Bozeman, Montana, to amend a local ordinance in a manner that facilitates water-neutral growth.

The recommendations by ELI and AWE were based on the Net Blue Ordinance Toolkit, a guide written by the two organizations. The Toolkit offers examples of water-offset ordinances from around the country; a Model Ordinance Worksheet that guides users through the development of a water-offset ordinance tailored to their political climate, legal framework, and environmental conditions; and an Offset Methodology Workbook that provides strategies for evaluating and selecting options to offset projected new water demand. Water-neutral growth ordinances can offset additional water demand by either requiring or incentivizing water-efficient retrofits of existing development. These measures can include fixture and appliance replacements, rainwater harvesting, and stormwater capture.

The city of Bozeman served as a Net Blue Partner Community, advising on the development of the Toolkit. The city has experienced rapid growth but is in an area with limited water resources. Capitalizing on the existing partnership between the city, AWE, and ELI, the groups implemented the Net Blue Toolkit there, collaboratively developing revisions to a simple water rights transfer and in-lieu fee ordinances.

Beginning in early 2019, ELI and AWE staff worked with Bozeman city planners and attorneys on various concepts and drafts of both the revised ordinance and its associated manual. The Bozeman City Commission approved the ordinance revisions in August. Revisions to the water manual, which houses the details of the ordinance’s implementation, are still in progress.

As the Toolkit notes, water managers in 40 out of 50 states anticipate water shortages within the coming years. This effort with the city of Bozeman represents a successful application of ELI’s research and analysis in local government policy. The hope is that Net Blue’s adoption in Bozeman will inform other local governments and encourage them to adopt similar ordinances.

Food waste initiative strives to improve community composting

The Nashville Food Waste Initiative, led by the Nashville-based nonprofit Urban Green Lab with support from the Natural Resources Defense Council and the Environmental Law Institute, recently launched a project to develop community composting training and pilot sites in Nashville. Through this project, the Institute for Local Self Reliance, a national leader in community composting, is collaborating with NRDC to bring training and technical support on community composting to Nashville.

In 2015, NRDC launched the Nashville Food Waste Initiative as a pilot project to develop tools, policies, and strategies to prevent food waste, rescue surplus food to those in need, and digest what’s left to build healthy soil. ELI Senior Attorney Linda Breggin served as the project coordinator for several years and continues to support the initiative as senior strategic advisor.

The community composting initiative follows up on a recent NFWI study on community composting, which highlights benefits and opportunities related to re-establishing community composting in Nashville. Community composting is a valuable part of a resilient food scrap recycling infrastructure, offering a relatively cheap and quick way to reach higher diversion potential than practices like backyard composting. It also provides a huge range of environmental and social benefits, such as engaging communities in zero waste practices, increasing demand for and interest in composting, and providing useful skills and job training.

Following the release of this report, the Initiative convened local stakeholders last winter to discuss ways to overcome barriers and identify resources for community composting. Groups expressed interest in managing sites, providing land, and hosting volunteers.

Building off this initial interest, the community composting initiative will lay the groundwork for a robust community composting network, targeting often overlooked and under-resourced communities, and train practitioners and future trainers.

Through the end of 2020, the first phase of this project will focus on identifying and providing technical support to composting demonstration sites and community composting pilot projects. Concurrently, a series of live webinars and online training modules will build interest and skills for community composting within the greater Nashville community.

ELI in Action: States at front lines of transition to renewables

ELI and the American University Washington College of Law Program on Environmental and Energy Law co-sponsored a webinar, State Approaches to a Just Transition, to explore how states protect frontline communities while advancing the transition to a renewable energy economy. The panel featured four experts advancing a just transition in the District of Columbia, Illinois, and New York. Speakers provided lessons learned from climate legislation, including the New York Climate Leadership and Community Protection Act, the Illinois Future Energy Jobs Act, and the District of Columbia’s Clean Energy Omnibus Amendment. The discussion highlighted the implications of these policies in addressing the dual crises of racial injustice and a global pandemic.

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Each summer, ELI convenes a complimentary seminar series that offers an introduction to the legal and policy foundations of environmental protection in the United States. Taught by experts in their fields, the ELI Summer Schoolseminars cover major environmental statutes such as the National Environmental Policy Act, Clean Air Act, and Clean Water Act. The 2020 Summer School series was the second year to host a session on environmental justice, which will become a mainstay portion of Summer School moving forward.

This year’s Summer School was also the first to be held remotely due to COVID-19. On average, each session received about double the number of registrations compared to last year’s sessions. In total, over 3,900 participants registered for the 2020 Summer School series.

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The Trump administration has taken dramatic and sweeping steps to remake federal environmental regulation. A recent ELI report, Environment 2021: What Comes Next? offers a detailed analysis of how these deregulatory initiatives will affect environmental protection in the coming years.

Authored by Senior Attorneys James M. McElfish and Jay Austin, the report helps environmental practitioners, policymakers, and the public understand the scope and significance of recent changes and consider future directions for the regulatory system. The report makes no assumptions about this fall’s electoral results, but explores possibilities for various regulatory reform efforts under different electoral outcomes. The report is available for download on the ELI website.

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As the first part of a webinar series on environmental issues affecting Indigenous peoples, ELI convened a webinar titled Fighting Fire With Fire: Restoring Traditional Indigenous Practices for Ecological Stewardship. The webinar, featuring leaders from the U.S. Forest Service, California Department of Forestry and Fire Protection, and the Karuk Tribe, explores opportunities for tribes to collaborate with state, local, and federal authorities to provide prescribed fires and fire-related services on traditional lands under federal jurisdiction.

The speakers provided an overview of wildfire management at the federal, state, and tribal levels, including current efforts and opportunities for collaborative activities between tribes and governments. In a concluding discussion, speakers noted the importance of recognizing the value of traditional ecological knowledge, understanding a tribe’s history and context, and building relationships when entering collaborative agreements. Intertribal organizations innovating in tribal forest management include the Intertribal Timber Council and the National Indian Carbon Coalition.

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In August, the Institute announced the inaugural class of the Jim Rubin International Fellowship, a program to support rising environmental lawyers from developing countries. The fellowship honors the legacy of Jim Rubin, a highly respected attorney, environmental advocate, and devoted public servant.

This year’s fellows, Ginary Tatiana Gutiérrez Robledo of Colombia and Junhong Li of China, will work with ELI staff on cutting-edge issues of environmental law. Gutiérrez Robledo was most recently an attorney at the Inspector Attorney General Office in Colombia, focusing on government compliance, education, community empowerment, and environmental justice. Junhong Li previously represented local communities in public interest litigation at the Center for Legal Assistance to Pollution Victims at the China University of Political Science and Law.