Within the Cradle of Legal Practice
Author
Achinthi C. Vithanage - Elisabeth Haub School of Law
Elisabeth Haub School of Law
Current Issue
Issue
6
Parent Article
Achinthi Vithanage

Sustainability lawyering is not limited to the purview of the environmental lawyer. It demands the attention of the entire legal profession. Transforming a profession that is built on a powerful and pervasive anthropocentric paradigm—one that is antithetical to sustainable development, relegating environmental protection second to economic development—is an ongoing challenge. Yet legal education shapes and qualifies the profession, producing the very individuals who make, apply, interpret, and change the law. Here lies an opportunity.

UNESCO advocates for education systems based on sustainable development, preparing learners for: crisis handling, resiliency, responsible citizenship, adaptivity, recognizing and solving globally rooted local problems, and creating a sustainable society. By placing sustainability at the core of the mandatory legal curriculum, it can serve as a normative framework for education reform.

The ABA’s 2013 resolution affirming prior commitments to sustainable development and its promotion in law schools provide a foundation to pursue legal education reform, such as the adoption of an accreditation standard mandating sustainability education throughout the legal curriculum. Such changes are, however, slow to bear fruit.

Until then, law schools are well-placed to lead and effect change. John Dernbach’s 2011 article in the Journal of Legal Education highlighted the role of professional education in achieving sustainability. The growth in courses, degrees, centers, and scholarship that he documented more than a decade ago continues to flourish. Today, 195 law schools in the United States seek environmental law program rankings.

Centering sustainability within legal education requires core content to be delivered differently. Imagine: a climate change law professor illuminating the potential and challenges of the torts discipline to address climate change to first-year law students; an environmental justice scholar transforming outdated concepts of property for future application; an animal law professor teaching the limits of constitutional law to protect the environment; a defender of fossil fuel pipeline protesters teaching the practice of criminal law; and a sustainable business law academic explaining the elements of contracts and their potential to produce sustainable development outcomes.

At the Elisabeth Haub School of Law at Pace University, this is a present reality. Within the largest full-time environmental faculty in the country, each professor brings a sustainability perspective to core courses of legal education, exposing most students in their first year of law school to legal thinking and analysis that is conducive to promoting sustainability. With multiple openings for environmental law faculty available in nearly 25 schools around the country, other law programs are gearing up to follow suit. With a legal marketplace demanding graduates with environmental law expertise, the demand for faculty with such expertise was foreseeable.

U.S. law schools need not act alone. The James Cook University in Australia reframed the first-year goals of its LLB degree to integrate sustainability, promoting “an understanding of the law as a sustainable system in its own right” playing a vital role in sustaining society, the economy, and the environment. The Scientific University of the South in Peru made environmental law a core course requirement of all admitted law students. At the University of Exeter in England, a 2021 experiment in integrating climate change and environmental law in the core law curriculum revealed that “law students want their climate change education to be compulsory and cross-programmatic, incorporated naturally with the content of each module.”

If the time is nigh for all lawyers to be sustainability lawyers, it is time for this recognition to pervade our legal education curriculum. American legal education currently lacks a conceptually unifying theme for its core. Sustainability can offer a cohesive narrative that links diverse legal subjects while preparing incoming generations of lawyers from the cradle of legal practice to the grave times ahead.

3D-Printers and Maker-Spaces: Improving Health and Environmental Sustainability Through Voluntary Standards
Author
University of Vermont for the Environmental Law Institute
Date Released
August 2019
3D-Printers and Maker-Spaces

This report is the culmination of a three-month investigation into the nature of 3d-printing with regards to potential social and environmental implications. Three graduate students from the Sustainability Innovation MBA program at the University of Vermont teamed up with members of the Environmental Law Institute to identify these implications and offer recommendations for sustainability within the specific sector of maker-spaces in the 3d-printing industry.

Blaming Workers "Very" Poor Policy
Author
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
5

Since moving to Washington almost 40 years ago, I’ve had two main editorial gigs. In addition to my current post, I was editor of the American diplomats’ magazine, the Foreign Service Journal, during the Reagan years. Most of the Journal’s audience are Foreign Service officers, who sign after their names, “Esq.” Most of The Environmental Forum’s audience are lawyers, who also sign, “Esq.”

That was just an amusing coincidence between two professional magazines, but now both of the agencies they mainly cover, the State Department and the Environmental Protection Agency, have been threatened with having their budgets and staffs savaged. To date, Congress hasn’t gone along, but the danger is causing poor morale at these agencies and hundreds to already quit voluntarily. As these workers’ longtime chronicler, critic, and champion, I feel compelled to respond.

It seems the esquires and other professionals at State and EPA are now deemed to be a “deep state” conspiring to its own ends and disloyal to the new administration and its policy priorities. Suspicion of career officials is not new, but over time all previous presidents have come to respect the civil service; they recognize that, bureaucratic inertia aside, its ranks are loyal to their country and eager to carry out mandates designed to better the lot of Americans.

A cost-benefit analysis of American diplomacy would note that since the end of World War II, an unprecedented era of worldwide peace and prosperity has grown and endured. Experienced diplomats established the financial and trade institutions that underpinned a huge expansion in wealth driven by improvements implemented by workers, business, and agriculture. Since 1960, global per capita GDP has increased 22 times in constant dollars. Human life spans have leaped from 48 years in 1950 to 71 years in 2015 — and a decade more in developed countries.

Professional diplomats were also at the epicenter during the Cold War and kept the pressure on the Soviet Union via containment until it collapsed. And the Foreign Service helped create the military alliances whose might created the environment for that implosion.

The Foreign Service can only take partial credit, for helping to create the framework and oiling the gears, but the United States has benefited hugely from its tiny investment in fielding a professional diplomatic corps whose numbers couldn’t even fill a hockey arena.

Now the international system they have helped to build is subject to attack. “Other presidents have understood,” the Washington Post said, “that the United States has gained, disproportionately, from a system in which it helps keep the peace without keeping crabbed accounts on its national ledger.” The same can be said about Trump’s attacks on the world trading system, where he sees other countries as robbing the American “piggy bank.” He blames the situation he beholds on his Oval Office predecessors and especially the weak professionals at State.

According to Foreign Policy, a Trump acolyte in the department is combing through social media to compile a list of officials who have supposedly been disloyal. Trump has experienced diplomats processing FOIA requests and has refused to name ambassadors to key countries or to fill other crucial posts. Trump also nearly tweeted away diplomatic immunity, exposing our government workers to real danger.

The fact that 99 percent of foreign affairs — of maintaining “our first line of defense” — is at the level of daily transactions among professionals serving in hundreds of countries has not occurred to him. Or as Defense Secretary James Mattis has said, if State’s budget is reduced, “Then I need to buy more ammunition.” But when asked about Trump’s proposal for a 30 percent cut, Secretary Mike Pompeo said cryptically, “I’ll make sure we have every single dollar we need and not one dollar more.”

Likewise, EPA is a useful and good agency Trump wants to ravage to upend its successes. The benefits of environmental protection have vastly outweighed the cost to American businesses and taxpayers, by between $113-741 billion a year, according to 2014 OMB data. Yet Trump and his first agency administrator came into office seeing the skilled professionals who helped accomplish this as an enemy — it was time to “deconstruct the administrative state.”

Scott Pruitt began the process by measuring his success using a different yardstick than his predecessors: beating down the professionals who dutifully implement and enforce the statutes passed by Congress and signed by the president, as detailed and directed under law and under careful court scrutiny. “When you look at what’s going on at the EPA, that agency has been a bastion of liberalism for years and years and years,” Pruitt told a radio host. He said the agency “was weaponized historically” against business. Representative Betty McCollum (D-MN) countered, “‘Staff has been under attack during your tenure’ and ‘there’s documented retaliation, as far as I’m concerned,’” according to the Washington Post. In fact, “the U.S. Office of Special Counsel is investigating whether . . . Pruitt retaliated against staffers who questioned his spending and management decisions.”

Pruitt is gone. According to E&E News, acting Administrator Andrew Wheeler “has signaled an increase in press access and engagement with career staff,” both principles that were anathema to his predecessor. And at State, Pompeo, who succeeded the dour institutional decimator Rex Tillerson, is said to be more popular among the Foreign Service employees and other civil servants who staff the department headquarters and overseas posts.

If they care to listen to professionals who want nothing more than to uphold their oaths of office, Wheeler and Pompeo will be well served in implementing the president’s policies.

Notice & Comment is written by the editor and represents his views.

 

Critics Call Bailout of Coal, Nuclear Plants “Trump Socialism”

The Trump administration’s plan to bail out the beleaguered nuclear and coal industries continues to draw sharp reaction from critics, with activists now claiming it will cost Americans as much as $34 billion more a year for electricity.

Meanwhile, Howard Learner, executive director of the Chicago-based Environmental Law & Policy Center, claims the directive that was announced June 1 is largely a result of lobbying on behalf of FirstEnergy Corp. by President Trump’s former campaign manager, Corey Lewandowski. . . .

Murray Energy is a major mining company that supplies coal to many affected power plants.

“Clearly, FirstEnergy and Bob Murray of Murray Energy have been aggressively lobbying the Trump administration for a bailout,” according to Mr. Learner, who said the directive would interfere with the marketplace to ensure cash flow for executives from noncompetitive corporations.

“President Trump is asking the public to subsidize the losers,” Mr. Learner said.

Former U.S. Nuclear Regulatory Commission board member Peter Bradford [said], “This is about favors and political paybacks. . . . It’s not Bernie Sanders socialism. It’s Trump socialism, because the benefits aren’t going to the public at large.”

The Toledo Blade

 

“Scott Pruitt’s . . . claim that benefits have been inflated in EPA regulatory decisionmaking is simply not borne out by the facts, and in today’s far-reaching announcement, he is doing nothing short of cooking the books so that polluters always win, and people always lose.”

— Sara Chieffo, vice president of government affairs, League of Conservation Voters

 

The Tragedy of the Commons Writ Large

Maybe planet-wrecking behavior is generic to technology, or so says astrophysicist Adam Frank, as reported in Popular Science. The venerable publication cites an article in a more obscure journal, Astrobiology, and notes, “A generic feature of any planet evolving a species that intensively harvests resources for the development of a technological civilization” is what biologists, geologists, and anthropologists call the Anthropocene, the era in which Earth’s environment has been shaped by humans.

“Frank borrowed from population ecology to devise models that represent the relationship between a civilization and its planet, using mathematical equations similar to those used by anthropologists to represent the rise and fall of ancient civilizations, like the one on Easter Island.” The result? “When you get advanced enough, and start consuming resources and energy at a fast enough clip you necessarily start to change your home planet on a global scale.”

Frank says that because of feedback loops that allow civilizations to respond to environmental stressors, dystopia isn’t the necessary result. Disturbingly, however, it’s the immutable outcome in three out of four scenarios. He labels the three bad results on graphs showing the declines as either a gradual die off, a brutal collapse without resource change, and a still severe collapse with resource change. In other words, if humanity does nothing, we all die, either in a cataclysm or slowly. But even if we do alter course, chances are the collapse still occurs.

The fourth outcome is sustainability. Strangely, the popular magazine doesn’t define what that means or how to get there, which makes sense because The Environmental Forum has also puzzled over sustainability. It would appear that humanity needs to recognize its resource constraints, but faster and more aggressively than in the outcome in which constraints are recognized but there is still a collapse.

But let’s not fault Popular Science here for not describing sustainability. Gro Brundtland laid down the challenge to humanity in 1987’s Our Common Future. Her definition suffers from tautology, however: sustainability is living such that you do not deprive succeeding generations of the resources they will need. Maybe surviving means we sustain the means of survival.

Right now we are using resources at a rate equivalent to two planet Earths, so we are outside Brundtland’s boundary. That is a challenge to environmental professionals, who are in the best position to inform policymakers and the public about defining sustainability and how to get there.

Christie Manning is an assistant professor of environmental studies and psychology at Macalester College whose field encompasses “how people respond to information about climate change.” She says, “If you want to encourage action, fear is often counterproductive.” Further, it “narrows our thinking and makes us less willing to work with those who are different.”

Blaming Workers "Very" Poor Policy

Waste Not, Want Not — An Instruction for Regulatory Reform?
Author
Scott Fulton - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2
Parent Article
Scott Fulton

At ELI, we have adhered to a centrist approach on the question of regulatory reform, seeing our current system of environmental protection as neither fatally flawed nor beyond improvement. But the question remains where to aim the reform effort.

A suggestion: waste recycling activity. Why? Because the RCRA program has become increasingly difficult to reconcile with sustainability ideals.

There are a number of different takes on what is meant by environmental sustainability, but I like the one that derives from Section 102 of the National Environmental Policy Act: a key goal of today’s society is to avoid the irreversible commitment of resources. That way, tomorrow’s needs can also be met. At first blush, RCRA would appear to be complementary in thrust, since, it is, after all, called the Resource Conservation and Recovery Act. But the regulatory system that emerged and has prevailed under the statute has always been preoccupied with guaranteeing proper disposal, and this preoccupation has at times pushed deployable secondary material toward end of life rather than recycling and reuse.

This orientation is understandable, given where we started. The initial National Priorities List under Superfund was populated with sites around the country that were the product of chemical reclamation activities gone awry. Many of the cases that I litigated back in the 1980s involved such circumstances. Take U.S. v. Monsanto, which involved the Bluff Road site in South Carolina. That site was envisioned by its operators as a collection and staging area for reclamation of organic chemicals. Nearly 10,000 drums would make their way to the site, but, as often seemed to be the case in those days, the operators could not keep up with the volume of material that they received and were unsuccessful in finding markets for repurposing the waste. As a result, the drums never left, the containers corroded, and a chemical stew contaminated land and groundwater, resulting in millions of dollars of liability and cleanup.

RCRA, with its cradle-to-grave system and stringent requirements for hazardous waste management and disposal, was in part intended as a “never again” response to scenarios like these. It presumed mismanagement and then applied a belt and suspenders approach to overcome it.

Fast forward to the present. RCRA has largely been successful in reining in industrial chemical waste mismanagement. Though Superfund continues to chug along in cleaning up legacy sites, very few new NPL sites have emerged based on behaviors post-dating the promulgation of RCRA’s regulations. Indeed, the chemical manufacturing and waste management sectors, having labored under RCRA controls for decades now, have largely internalized these controls in their compliance management systems.

The question now is whether RCRA should be turned more decisively in the direction of resource conservation and recovery — particularly in view of the emergence of sustainability and smart materials management as core objectives in much of the business community. At their root, these objectives are grounded in conservation thinking, focused on designing products with end-of-life in mind and strong reuse and recycling programs, allowing for an increasingly circular economy.

The difficulty is that the RCRA program in its current form has proven a straight jacket when it comes to recycling. The flip switches that operate around the questions of whether a material is a waste and whether a waste is hazardous, coupled with the absence of clear statutory authority to develop customized programs for recyclables, drive resource loss rather than reuse.

Take, for example, what is happening in the retail sector with discarded aerosol cans. By virtue of their propellant, these hit the trip wire for RCRA ignitability and are treated as hazardous waste. This waste stream accounts for nearly half of the RCRA-regulated material in the retail sector and drives the status of retail stores as RCRA large-quantity generators. Awkwardly, these same cans, when disposed of by consumers, are treated as household solid waste rather than hazardous. 

Treated as hazardous waste, the fate of the material is certain — the vast majority is incinerated. Apart from the enormous cost of this approach, there is a sustainability tragedy — both the cans and the propellant are recoverable and either recyclable or reusable, the cans for their metal and the propellant as fuel. It seems virtually assured that reharvesting these materials can be undertaken in an environmentally protective manner.

Can we work together to find a better path for waste streams like this? To me, that sounds like smart reform, anchored by the sustainability ideal.

On why we want policy not waste.

Conservation vs. Exploitation
Subtitle
Is Napa Valley a Sustainable Garden of Eden?
Author
Ridgway Hall - Chesapeake Legal Alliance
Chesapeake Legal Alliance
Current Issue
Issue
2

Napa! What does that name conjure up? Delicious wines? A bucolic “paradise valley” with thousands of green acres stretching from the Napa River to the Mayacamas Mountains to the west and Howell Mountain to the east? Farmland undergoing rapid development? It is all of these, but the reality is more complicated. It is a microcosm of the struggle going on across America between profit-driven development and resource conservation.

Napa at Last Light: America’s Eden in an Age of Calamity is the recently published third volume of a trilogy on this subject by James Conaway. The first in the series, Napa: the Story of an American Eden (1990), a New York Times best seller, describes this place where climate, soil, and weather conditions are extraordinarily well-suited to the growing of grapes from which excellent wines can be produced. In the late 19th century a few adventurers, including immi-
grants from Europe who brought with them knowledge on how to grow grapes, matching grapes to climate, and the making of wine, came to the Napa Valley. They produced wine profitably, built large mansions on the hillsides, and then the combination of a grape disease and Prohibition shut them down. In the 1960s, people eager to leave city life for a living in a beautiful setting “rediscovered” Napa and revived the wine industry.

By 1976 the wineries that sprung up in Napa Valley were producing wine of such excellence that two Napa vintages, a cabernet sauvignon and a chardonnay, won a blind taste testing in Paris against some of the very best French wines. As the number of wineries expanded rapidly, other businesses began to arrive, bringing construction equipment and traffic. In 1968 the county wisely declared agriculture to be the “highest and best use” of the land and created in the Napa Valley the first “agricultural preserve” in the country. “Agriculture” included “the raising of crops, trees, and livestock, [and] the production and processing of agricultural products.” A house or farm building required at least 40 acres.

Conaway’s second book in the trilogy, The Far Side of Eden: New Money, Old Land and the Battle for Napa Valley (2003), describes the extraordinary wealth generated by Napa’s wines, and the arrival of absentee corporate owners and real estate developers whose main interest was making money. This led to planting vineyards on steep slopes, and the associated cutting of enormous numbers of trees, which in turn led to erosion and pollution of the Napa River, which runs from north to south through the valley. The river was home to salmon and steelhead before the deteriorating water quality drove them out. This development also began to take its toll on the appearance of the valley and the hillsides, including new structures, heavy traffic, dust, bulldozers, and other earth-moving equipment.

Napa at Last Light begins with a recap of this history, and then brings the saga up to 2017. (Disclosure: I read and provided comments on an early draft of the book). Conaway has spent over 30 years traveling up and down the approximately 25 mile Napa Valley and the surrounding communities, getting to know the people, their desires, values, and personalities. As a result, reading his books is not just a story of the evolution of a community. It is also getting to know the grape growers, the winemakers, and their families, many of the original owners, the preservationists, the concerned citizens, the newcomers looking to make big money fast, and the local officials. You encounter the organizations that spring up on all sides, and their interactions. After reading about the fist fight between Robert and Peter Mondavi to decide the ownership of the family business, you may never look at a bottle of Mondavi quite the same.

There are now over 400 wineries in Napa Valley, and efforts continue to increase production and profits. Some winery owners tried to increase their production by bringing in grapes from outside the valley. This increased short-term profits, but eventually debased the value of the winery name when the public found out that their bottle of “Napa Valley” wine was made from mostly non-Napa grapes, and didn’t taste quite as good. To curtail this practice the county passed an ordinance in 1990 defining “Napa Valley” wine as being produced from at least 75 percent Napa Valley grapes.

Also in 1990, with strong backing of citizens groups and environmentalists, Napa adopted an amendment to its general plan, known as Measure J, which stated that any change in land use provisions, whether by ordinance or permit, must first be subject to a popular referendum. This was challenged by winery owners and developers, but was upheld by the California Supreme Court in 1994. It has been invoked to challenge exceptions to land use laws with mixed success.

Many vineyard owners and winemakers have long felt they should be able to do whatever they want with their property. They began to chafe against the strictures of the “agricultural preserve” and the definition of “agriculture.” Using their wealth and influence they have been able to persuade local officials to overlook violations and to allow planting on more acres than authorized, illegal tree-cutting and construction in the wrong places. The threat which climate change poses to future grape-growing has been ignored. Some owners expanded what once was known as a “tasting” to include food service tantamount to running a restaurant. Promoted as the “full wine experience,” the events are high priced. Receptions and the like are being held, and the sale of T-shirts, bar equipment, and paraphernalia unrelated to wine has sprung up.

By 2008 the owners were promoting an expansion of the definition of “agriculture” quoted above to include: “and related marketing, sales and other accessory uses.” This would legalize the excesses described above, and more. They argued that the greater business and profits that could be generated from these activities would benefit everyone. There was widespread opposition among the other residents. Many feared further destruction of the natural beauty of the valley, increased traffic and noise, and further pollution of the Napa River, which was already listed by EPA as impaired under the Clean Water Act. However, this change had support among the planning department and the board of supervisors, and was approved as a “minor” clarification with minimal public notice.

While the owners reaped extraordinary profits, the farm workers and many other residents were barely getting by — some living in trailer parks not visible to most tourists. They resented the arrogance of the owners and developers, who seemed oblivious to the fact that their drive to expand operations and convert wineries into tourist attractions was destroying the qualities of the valley which brought people — including many of the owners — there in the first place.

To put the land use conflict into human terms, Conaway discusses several examples of profit-motivated outsiders who came to the Napa Valley with the aim of creating opulent wineries with no regard for the impact which development would have on the environment. One grew up in San Matteo, made a fortune during the tech boom, and bought 40 acres on a mountain adjacent to a 3,000-acre wildlife preserve and a state park, where he wanted to plant a vineyard. This would involve clear-cutting many large trees, removing boulders, and recontouring the land in an area that was ill-suited to development. Outraged citizens organized a strong effort to block it, and that battle continues.

Another example was a Texas real estate developer and part owner of the Dallas Cowboys who wanted to clear cut 500 acres, including an estimated 30,000 mature oak trees, ostensibly for a vineyard. His massive infrastructure plans strongly suggested an intention to build a large number of “ranchettes.” He had done a similar development in neighboring Sonoma County. Surveys indicated that the land disturbance would cause significant erosion, damaging Napa’s drinking water supply, adversely affecting fish populations, and destabilizing downhill soil. The public, fed up with deforestation and environmental destruction, rallied to oppose this. But the developer began a campaign of misinformation and bullying, and the county supervisors allowed the project to proceed. Lawsuits were immediately filed.

Conservation-minded citizens then drafted a proposed water and woodland protection initiative, and quickly gathered more than twice the number of signatures needed to get on the ballot for the 2016 election. The board of supervisors initially approved it to go on the ballot. Then they rejected it on the technicality, rarely invoked, that it failed to attach copies of regulations that might be affected. The citizens were left to start the process over again for the 2018 ballot, amid protests of “voter suppression.”

Near the end of the book Conaway observes: “‘Eden’ is a figurative stretch for what the valley once represented, but all vestiges of that early innocence are lost. The remnant fig leaf kept in place by the wine and hospitality industries grows more tattered every year, revealing more schemes to transform a way of life into a marketable experience as or more valuable than the thing itself.”

Napa at Last Light is a very engaging read and carries some important messages. The struggle going on in the Napa Valley is similar to struggles between developers and conservationists all across the country. At a time when our national leaders are calling for less regulation and making it more difficult to protect our environment, this book could not be more timely.

Is Napa Valley a sustainable Garden of Eden?

The Status Quo Isn't Working
Author
Representative Mike Quigley - House of Representatives Sustainable Energy and Environment Coalition
House of Representatives Sustainable Energy and Environment Coalition
Current Issue
Issue
6
The Status Quo Isn't Working

CAPITOL IDEA ❧ The key to sustainability isn’t to restrict bad practices but to encourage good practices until they take root. We can keep reacting to problems as they emerge, or we can create a culture of responsible resource management that prevents threats from coming to pass.

Blight Revitalization Initiative for Green, Healthy Towns

ELI’s Blight Revitalization Initiative for Green, Healthy Towns (BRIGHT) identifies corridors of blighted, vacant, and environmentally-impaired properties in overburdened communities and supports the community and municipality in developing a revitalization plan. Combining community-level engagement with organizational and financial support from the private sector, government, and NGOs, BRIGHT catalyzes: