The Trump administration’s plans to remove federal oversight from some streams and wetlands will leave those waterways without protection in some of the Bay watershed states, while increasing the regulatory burden on others, officials and conservationists say . . . .
Wetlands conservation has been a signature program for ELI since its very first decade. In 1977, with support from the Fish & Wildlife Service, ELI convened the first National Wetland Symposium, bringing together 700 wetlands scientists, managers, lawyers, and conservationists. And for nearly 40 years following until the Institute regretfully pulled the plug for financial reasons, ELI’s respected National Wetlands Newsletter served as the touchstone publication for the field, with influential and intensely practical articles on wetlands science, law, management, and governance.
In addition to NWN, ELI wetland books and reports have shaped the field in profound ways. Jon Kusler’s Our National Wetland Heritage: A Protection Guidebook, released in 1983, was one of ELI’s most-purchased books, and was succeeded by a well-regarded second edition in 1996 (with NWN Editor Teresa Opheim doing the update).
ELI’s first-ever study of all the nation’s wetland mitigation banks in 1993 became its most widely disseminated research report; it has led to a continuing series of influential studies on wetland banking and fee-based mitigation programs over the following 25 years.
The Institute’s work during this period included creation of databases and inventories of these programs, led by Science Policy Analyst Jessica Wilkinson. ELI’s pioneering work on compensatory mitigation influenced findings by a National Academy of Sciences panel that led to the 2008 Corps-EPA rule putting compensatory mechanisms on a firm scientific and legal footing.
Much of ELI’s wetlands work has had a state and local focus, including studies of the likely impacts on state programs of changes in definitions of Waters of the United States under the federal Clean Water Act, which has come to be relied on by all parties.
ELI’s numerous wetland and stream mitigation studies and training courses continue under the leadership of Senior Science and Policy Analyst Rebecca Kihslinger, and the Institute continues to collaborate with states and academic organizations on restoration priority setting and the role of wetlands in climate adaptation, often with foundation support.
“As climate change and regulatory uncertainty threaten the protection of vital habitats,” notes Kihslinger, “the timely research and comprehensive training programs offered by ELI promote policies and innovative approaches that preserve wetlands function and maintain crucial ecosystem services for all communities.”
In 1989, ELI launched a program to recognize excellence in wetlands conservation. The National Wetlands Awards, now in their 30th year, recognize individual achievement in landowner stewardship, science, governmental innovation, education, and other categories. Presented with modest support from federal wetlands agencies, and held on Capitol Hill, this event celebrates the contributions of conservationists, teachers, and others. Keynote speakers have included the late Senator John McCain of Arizona and New Mexico Senator Tom Udall.
ELI’s other work on water resources in the United States has focused on policy and regulatory gaps. In the early 1980s, Institute staff led by Tim Henderson produced work on state groundwater protection laws. In the 1990s and 2000s, ELI prepared comprehensive inventories of all state nonpoint source protection laws. In these same years the Institute worked on green infrastructure and ways to address older sewer systems.
More recently, ELI has aimed at connecting water quantity, water conservation, and water quality, including an influential partnership with the Alliance for Water Efficiency and River Network, known as Net Blue. Adam Schempp has directed a long-standing series of training courses and workshops for state regulators dealing with impaired waters, and related courses on data management and monitoring, with support from EPA. These intensive courses involve state-to-state peer learning and networking.
On January 1, 1970, President Richard M. Nixon ushered in what he hopefully called the Environmental Decade by signing the law we call NEPA. In the half century since, the system built up by the statutes that rolled out like clockwork following the National Environmental Policy Act’s stentorian expression of social commitment has expanded, evolved, and endured. NEPA made it the official policy of the U.S. government “to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”
The system envisioned by NEPA’s expression of national will became a trusted and flexible body of law and rules, decisions and procedures, and relevant institutions designed to improve public health and conserve natural resources. Environmental professionals were involved in each and every step along this journey of discovery and response, both leading and following, and can take pride in their part of this huge national achievement, one whose success has been enthusiastically replicated worldwide.
The year leading up to the passage of NEPA was marked by a number of headline-making environmental events: the Santa Barbara oil spill, the flaming river in Cleveland, the deadly smogs in cities from Pittsburgh to Los Angeles. The United States then responded to the ecological degradation that so concerned its citizens through groundbreaking legislation setting national goals and priorities, a set of implementing regulations carefully drawn up by expert professionals to achieve the lawmakers’ targets, with resulting issues of process, outcome, and equity carefully considered by the courts. The result is what has come to be called (not always with admiration) the administrative state, with all three branches of government moving in a complicated tango in which it is often hard to see who has the lead — but which nonetheless has made huge progress in the last half century in what has of necessity morphed into a fight to save the planet.
Measured by the viewpoint of those who were present in the 1970s, the counterattack has been a real success — our rivers are cleaner, our air far healthier, our toxic waste dumps are getting cleaned up, and the bald eagle is no longer endangered. But the need for environmental protection, as new threats have emerged that were not readily visible when NEPA was passed, has grown over the same period and has never been greater. Using law as the vehicle for response, the situation today calls for a new cadre of activist-professionals guided by the most advanced legal thinking, a model created 50 years ago when the first pollution statutes were still being debated in congressional committees.
Thus for our purposes, the story really starts just before the dawn of the Environmental Decade, in September 1969, when a group of 52 pioneers practicing in the new field of “environmental law” — a neologism presented in quotes by the New York Times in reporting on the event — held an organizing meeting at the rural Airlie House conference center outside Warrenton, Virginia. Back then, no one had any way of imagining, let alone anticipating, the magnitude of what was about to happen: the formation, development, and evolution of what has clearly become one of America’s, and the world’s, most enduring and far-reaching social movements, plus the creation of that robust body of public servants, private counsel, and proper procedure known as environmental law, without the scare quotes.
What those pioneers meeting at Airlie House did know, however, was that it was necessary to track the new field and nurture it, and for this purpose they decided to create, as the Times reported, “a nationwide conservation legal organization . . . with a national center coordinating regional branches where talent could be systematically mustered.” The main idea was to start by founding an expert publication to report on developments in the new field and help organize the emerging new profession and its response to the environmental crisis that was so apparent in the late 1960s.
The United States at that time was just escaping from an exceptionally chaotic decade marked by the unpopular war in Vietnam, the struggle for civil rights and women’s liberation, and the assassinations of John and Robert Kennedy and Martin Luther King Jr. The environment thus arose as a movement of unity during a period of discord, and received support from both political parties, with the White House and the Congress vying to take the initiative.
Leading voices of concern in the Senate — in particular Wisconsin Democrat Gaylord Nelson, Maine Democrat Edmund S. Muskie, and Republicans like Vermont’s Robert Stafford — were focusing increased public and media attention on conservation issues. The president too recognized environmental protection as a political opportunity. Thus, as newspaper archives attest, the year 1969 was marked by numerous hearings, strategy sessions, and bill markups for what was to become the body of environmental law. NEPA became the first out of the gate.
The seminal vote enacting the groundbreaking statute took place on December 22 — a tally which occurred on the very same day that the mandate of the Airlie House meeting was realized via the incorporation of the Environmental Law Institute as a Section 501(c)(3) nonprofit educational and scientific organization under the U.S. tax code.
As the Institute has liked to say ever since, ELI and environmental law grew up together.
The Airlie House meeting thus took place in the political and public policy cauldron that characterized the late 1960s. It was organized under the auspices of the Conservation Foundation, a highly respected NGO, which set out to convene a group of lawyers, scientists, and other experts to debate “Law and the Environment: The Role of the Lawyer in Environmental Conservation.” From the vantage of today, the list of attendees, which included Ralph Nader and a score of other names that would also become famous, reads like a Who’s Who of the emerging new profession.
In words that 50 years later may strike some as both prescient and understated, CF’s Malcolm F. Baldwin, under the title of conference secretary, opened his invitation as follows: “The legal profession is at the threshold of broader and more effective environmental involvement. . . . The development of needed legal programs, doctrines, strategies and institutions has not kept up with public needs.” Pointing to the litigation legacy to date, Baldwin said, “Too few” of the small but increasing number of environmental court decisions “have been handled with fully adequate legal and scientific expertise.”
Pointing to a need for “stronger cooperation and coordination among conservation law interests if scarce resources and expertise are to be used effectively,” Baldwin emphasized that “the legal profession has a major responsibility for helping develop the improved approaches and mechanisms that can respond to this public need.”
In a post-conference publication, “Law and the Environment,” meeting managers noted “a striking absence of any attempt to define environmental law.” But in starting by accepting that “environmental decay was a hideous fact,” participants focused on “ways for the law to respond.” The response would, in turn, define the field. The participants attending the Airlie House meeting “generally accepted that by opening up and democratizing the legal process, at every level, environmental abuse could be curtailed,” in the newspaper account.
Illustrative of how embryonic the state of environmental law was just a half century ago, the meeting organizers asked, “Did an environmental crisis warrant radical legal reform and innovation, or was there time for evolutionary approaches?” According to the record of the meeting, some participants “endorsed the broad, swift remedy of a constitutional attack, a Supreme Court appeal, and greater use of the courts’ equitable powers” in order to develop some new environmental doctrine of the law. Others preferred the philosophically more opaque strategy of mixing legislative and judicial remedies by taking what one participant called the “subliminal approach to court intervention.” Still others wondered if “radical changes” in the roles of courts, legislatures, and law schools “were feasible or desirable.”
Among “unresolved anxieties [that] permeated the discussion” was a fundamental pocketbook issue: “Can any public-interest lawyer, let alone an environmental lawyer, support himself by fees from clients who are likely to be just a cut above the indigent?” And how could professional standards forbidding fundraising and client seeking respond to the need to “combat powerful adversaries”? Lastly, they raised this concern: “Because environmental law is in such a primitive stage, even the most imaginative and industrious environmental lawyer may feel a general professional frustration at the doctrinal and procedural obstacles he must face.” The use of the masculine pronoun is no accident; sadly, only a handful of women and minorities were present at the foundational meeting.
So it was in that cauldron that the Airlie House conferees agreed to the establishment of a new nonprofit organization to manage and maintain an independent environmental law journal that would track and help form the new field, publishing the latest findings on protecting the environment through America’s legal system.
Among those attending the Airlie House meeting were three individuals who went on to be principal founders and organizers of the new institute. Fifty years later, those three founders — Thomas Alder, Craig Mathews, and James Moorman — continue to be active supporters. Alder at the time of the Airlie meeting was president of the nonprofit Public Law Education Institute — which was a crucial co-partner with ELI in the early days. Alder in a June 1973 letter called the PLEI-ELI relationship one of “parental involvement” including shared office space and resources. Just as PLEI was a model for the early ELI, its Selective Service Law Reporter and Military Law Reporter were models for what eventually became ELI’s Environmental Law Reporter. Thus prepared, Alder eased into the role of ELI’s first president.
An important story the three founders share now, 50 years after Airlie House, is that back then conference participants for the first time got to personally meet lawyers and other professionals from around the country whom they previously had known only by reputation. They say the gathering opened the eyes of all to the fact that there were others who shared the same legal interests, passions — and concerns — from every region of the United States. But no one could have predicted the sweeping breadth and scope of the landmark federal environmental legislation and litigation that would come to so characterize the 1970s, let alone a parallel revolution in most of the states via the emergence of environmental federalism.
And no one could have charted the future successes of the nascent organization whose creation the Airlie House meeting fostered.
In looking back through the last five decades to evaluate what ELI was created for — basically, to collect and timely publish an ongoing compendium of natural resource and pollution control briefs and judicial opinions and, relatedly, provide independent expert analysis — and what it has become, the challenge is obvious. In fact, ELI and environmental law didn’t just grow up together, they established a symbiosis, a mutual nurturing. Environmental law would still have been created and evolved over the years in the absence of an ELI; but the system would have taken more time to emplace and wouldn’t work as well in practice. And people, from decisionmakers to ordinary citizens, would be less satisfied with the result.
Which clearly is not to suggest that ELI, with its steadfast commitment to nonpartisanship and independence and to research excellence, has been a major player with a highly visible role. It has not. Rather, one is reminded of the old TV commercial for BASF, which sells to other companies and not to consumers: “We don’t make the products you buy; we make the products you buy work better.”
In a similar vein, ELI hasn’t been in the business of making the environmental bills that the House and Senate consider, then or now. Nor is it involved in the spate of litigation that began 50 years ago following enactment of the statutes (with one important exception, to be noted). There are praiseworthy organizations that do that critical work. What ELI does instead is something no other group can do, all of it evolved from the Airlie House mandate. The Institute researches pressing problems, tracks the field and provides a forum for robust discussion via seminars and publications, trains professionals from government, industry, law firms, journalism, and NGOs, and finally convenes its broad constituency of professionals representing all stakeholders to increase understanding and seek common-ground solutions to the world’s most demanding environmental problems.
Fifty years on, ELI can best be described as a “one-of-a-kind environmental law think-and-do tank,” in the carefully crafted words of its current annual report. The clever language reveals a key fact: ELI is not another for-or-against environmental advocacy interest group, and not a conventional D.C. policy analyst or consultancy —and certainly not a gun for hire. “We’re neutral, but we’re truthful,” one former staffer likes to say.
From its rather humble beginnings on the sixth floor of the iconic Dupont Circle office building that was home to countless progressive nonprofit organizations in the last century, ELI published the first issue of its monthly loose-leaf service in January 1971. The initial issue of ELR included an authoritative and insightful monograph by Moorman outlining the shape of the road ahead for a comprehensive body of environmental law. That opening article set a standard for independent legal analysis and interpretation at that point, and perhaps still, unmatched by others.
For a fledgling environmental nonprofit, one would be hard to imagine a better bull market in which to get off the ground than the 1970s, a period of lawmaking unmatched since. From its bare-bones beginning with first-year total revenues of $62,224 and five employees, ELI by the end of the decade qualified for what then Board Chairman David Sive and Executive Committee Chairman Mathews cited (unwittingly tracking the language of the New York Times story on Airlie House) as “a principal national center for objective, independent legal and policy research on environmental and natural resources subjects.” It ended the decade with total annual revenues of $1.5 million and more than 60 employees, with its newly created research division “now the largest and most important,” an early annual report said.
Corrected for inflation, ELI is funded at about the same level today and has a similarly sized staff. The die for an environmental legal resource of national scope and stature had been cast. But if anything, the Institute’s shape was just emerging — and has continually changed as the organization matured along with the field. To borrow from the language of science, ELI came to occupy a unique niche in the political ecosystem and has evolved over time to exploit that niche, as needs and opportunities have become apparent.
The 1970s saw a period of lawmaking in the field unmatched since. Along with three pillars of federal environmental and pollution control legislation — NEPA and the Clean Air and Clean Water acts — the country also saw passage of the Endangered Species Act, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, and the law known commonly as Superfund, plus a half dozen other statutes covering natural resources and pollution.
The courts, too, got into the act during that first decade and showed that the third branch is a critical one in administrative law. The D.C. Circuit decided Calvert Cliffs Coordinating Committee v. AEC in 1971, requiring full consideration of Environmental Impact Statements under NEPA, thereby enlivening the statute. Other decisions confirmed citizen standing to sue under the new pollution laws and, in the celebrated case pitting TVA against the endangered snail darter, confirmed that laws regulating governmental activity were legitimate expressions of public will and were enforceable by citizens, agencies, and the courts.
Alder and Mathews traded as part-time presidents until 1975, when ELI elevated Frederick R. Anderson, an engaging young lawyer of considerable intellect and will, from his position as ELR editor-in-chief to run the overall organization full-time. Under his leadership, that first decade witnessed the Institute’s evolution from a scholarly publishing outfit to one whose core activity was research meant to advance the field. Not only would the outfit record developments in environmental protection, as per the Airlie House mandate — in addition, ELI would focus on what should be done to ensure effective environmental protection, with a sharp focus on policy and program implementation, by “systematically mustering talent,” to crib from the New York Times description of the organization envisioned at Airlie House. Anderson himself co-wrote in 1973 “NEPA and the Courts: A Legal Analysis of the National Environmental Policy Act,” which thus became ELI’s first research report, to be followed by literally hundreds of others over the past half century.
By the end of the 1970s, research reports, probing issues ranging from air and water pollution to land use, energy use, and toxic substances, accounted for nearly one third of ELI’s total revenues. The research division not only evaluated national problems but also began to deal with international issues such as transboundary air pollution and multinational treaties. The organization established a publicly available research and reference library that grew in that first decade to more than 10,000 volumes and 250 subscriptions to periodicals. ELI soon became known worldwide as the authority on environmental protection.
To meet the needs of these growing activities, the staff grew beyond a sole focus on skilled public interest lawyers to also include journalists, business entrepreneurs, conference organizers, and others. Early on, the outfit recognized a need for training professionals and established an education division. In its first 10 years, ELI trained more than 7,500 people in sole- or co-sponsored conferences and programs. Its first such program was in 1970 in collaboration with the American Law Institute, a relationship which continues to this day, as well as the Smithsonian Institution.
The Institute soon became known as the expert organization on a variety of topics. An important example is wetlands. In 1977, with support from the Fish and Wildlife Service, ELI conducted what it called “the largest wetlands protection program ever held,” with conferees numbering more than 700. And the following year, the Institute gave birth to its highly regarded National Wetlands Newsletter. ELI soon established itself as the key national wetlands information source.
Publications like ELR and NWN and various monographs were still the Institute’s bread and butter in that first decade. Beyond its two periodicals, ELI published the first major environmental law treatise, Federal Environmental Law. It also collaborated with key independent printers such as West Publishing Company, Johns Hopkins University Press, Resources for the Future, MIT Press, and Indiana University Press to bring out books geared to professionals in the burgeoning new field.
By any reasonable measure, the feel-good environmental policy and political bipartisanship that had characterized so much of the 1970s took a sharp turn in the opposite direction in the 1980s — and ELI was forced to change itself in response, and not for the last time. President Ronald Reagan came into office in 1981 promising to “get the government off the backs of the people,” and he appointed sympathetic cabinet members, including Ann Gorsuch at EPA and James Watt at Interior. The new administration took a more critical and negative approach to the aggressive legislative and regulatory activism of the prior decade.
Not coincidentally, there were times in those earliest months of the 1980s when ELI’s very survival appeared uncertain, as it tottered on the edge of bankruptcy. Management engaged aggressively in cost-cutting, shutting down under-performing programs and going all-out on fundraising. One vital decision during those trying times: fund the highly respected wetlands activities with general support. Another: increase efforts to strengthen board giving.
Facing major headwinds from external forces well beyond its control, ELI did what it has done throughout so much of its 50-year history: it turned more innovative, more entrepreneurial, and even more eager to capitalize on bottom-up, staff-driven initiatives and opportunities. In addition to hiring top-notch people and giving them the freedom to grow, that is the secret sauce of ELI’s success.
A key innovation that brought in new thinking and fresh funds was the creation in 1982 of the ELI Associates Programs — note the plural, which will be explained shortly. Associates were invited in from industry, from law firms, and from government and NGOs alike, plus universities, and through their dues injected fresh funding. To head the effort, ELI hired attorney (and later general counsel and vice president) Erik Meyers, who would manage the programs for more than 20 years.
The Associates Programs were the brainchild of ELI’s second full-time president, J. William Futrell, a colorful, outspoken former leader of the Sierra Club and law school professor, who today characterizes the professional society as “the beginning of building financial support from members and contributors by identifying friends of the Institute.” To Meyers, it involved going beyond what had started as “a small following of ‘friends’” to “formalize the dialogue into regular seminars and policy discussions,” attracting the interest of “leading lights from the field.” Meyers notes that these early champions of the profession “served on the front lines of change and often took hostile and friendly fire — from public interest advocates and regulators on the outside to profits-first executives and old-school process engineers internally.”
Starting with the Corporate Associates Program involving businessmen and women, Meyers added a Professional Associates Program to bring in law firm attorneys and consultancies and a Public Interest Associates Program to nurture NGOs. And individual associates were also welcomed from all levels of government and from university faculties, at a discounted dues rate.
Lumping the programs together, the association soon matured into what has proven to be an attractive, popular smorgasbord of professional programming involving peer-to-peer exchanges on new environmental, health, and safety approaches. These activities attracted the attention and participation of a wide range of government officials, public interest advocates, journalists, educators, and business innovators. Without so much intending it as such, Futrell and Meyers had created environmental law’s professional society.
Also in 1982, Futrell launched a monthly environmental policy journal. What he envisioned was a lively, feisty publication to engage and energize the new field and augment the essential but often dry analyses and reporting offered by ELR. He wanted a publication that would be read by decisionmakers and thus signal — and enhance and guide — a legal sea change in environmental policy. With an editorial emphasis on policy, politics, and importantly people — the distinctive personalities behind those activities — The Environmental Forum became a way of engaging the full network of environmental policy professionals, not just lawyers but scientists, engineers, economists, enforcers, risk assessors, etc., a group that encompassed experts in business, government, law firms, NGOs, and academia.
The Forum was launched as a monthly subscription publication, and it lasted four years in that format before the Institute had to pull the plug for financial reasons. But Futrell and Meyers still saw a need for a policy publication for the new profession, and in 1988 the Forum was relaunched as a bimonthly magazine addressed to the members of the Institute’s Associates Programs, a reinvention so typical of ELI: an artful combination of two ventures into a synergistic, symbiotic whole greater than the sum of its parts. Thus the Forum became the publication for professionals in environmental protection, a role it has succeeded in for more than 30 years.
Futrell had another key innovation, launching the ELI Award for career achievement in 1984, to be bestowed at a festive annual banquet that would constitute the yearly meeting of the growing profession. “The choice of awardees identifies ELI’s values as an environmentalist organization,” Futrell says in hindsight. The list of those honored in the 35 years since its creation is a veritable honor roll of environmental professionals including such widely admired individuals as attorneys David Sive and Joseph Sax, EPA Administrator William D. Ruckelshaus, Interior Secretary Stewart Udall, Secretary of State George P. Shultz, Senators Muskie, Stafford, George Mitchell, and John Chafee, businesswoman (and former EPA Administrator) Lisa Jackson of Apple, and jurists Patricia Wald, James Oakes, and Richard Arnold.
In another manner of serving the lawyers and other members on its roll, ELI became the obvious source for professional education. It joined with the American Law Institute and the American Bar Association to create continuing legal education courses, cementing the Institute’s standing in the field as the expert on environmental law. The organization in 1986 initiated major research projects on codification of environmental law, with outside attorney Sheldon Novick writing a key 1986 treatise widely seen as a major work in the field. Frank Friedman, a highly experienced businessman, in 1988 published the first of nearly a dozen iterations of his Practical Guide to Environmental Management, a key volume, still updated regularly, and which helped secure ELI’s standing among top corporate managers then and since.
ELI lawyers and economists, under the leadership of Roger Dower, did groundbreaking research in the early 1980s on natural resources damages under the Superfund law, helping to establish the Institute’s policy chops. Then in 1984, ELI hired a former Pennsylvania assistant attorney general assigned to the state’s Department of Environmental Resources, Elissa Parker, who a couple years later moved up to head the Research and Policy Division. Over more than three decades of work, Parker oversaw a burgeoning research program and went on to become recognized by ELI employees and volunteers as one of the single most respected and influential managers in the history of the organization. Dozens of today’s professionals, constituting a global network, trace their careers to her recognition of their promise.
Looking back, one cannot help but notice a not-unusual cycle of funding expansions followed by periods of major contractions, in large part the result of the availability of substantial federal agency contracts and grants. To avoid a boom-to-bust cycle, Futrell and Parker moved to broaden the Institute’s sources of revenue. When there was a substantial reduction in federal research funding under President Reagan, for example, ELI sharpened its attention on states and on environmental federalism, both through its research activities and its educational programs. The Institute found demand increasing among states for expert training and research assistance. With foundation support and some federal funding, ELI staff established what is today called the Center on State, Tribal, and Local Environmental Programs to help meet these needs. Among those activities, they trained state enforcement attorneys; provided criminal enforcement training for environmental lawyers; and provided resources on negotiation skills for state, EPA, and Department of Defense officials.
Late in the decade, ELI won key foundation grants and support from the U.S. Agency for International Development to work in Central and Eastern Europe and in Latin America. Those efforts were forerunners of an ambitious and wide-ranging series of international engagements that would increasingly characterize the Institute’s work. With the collapse of communism in the late 1980s and the move to democracy in Latin American countries, ELI found itself as an expert, sophisticated actor on the international stage, one increasingly sought out for its unique expertise and style in consensus building.
Under Parker’s leadership, the Institute established a formula for its overseas work: go where there is need; find an in-country partner, hopefully a legally oriented NGO; and work within the local legal system to address that need — to improve environmental protection. The Institute assisted its local partners by concentrating on legal and governance issues, including expertise on the U.S. experience, pro and con, and lessons that might apply to the host country. ELI attorneys also cooperated on drafting laws and ensuring that proper governance existed for successfully implementing and enforcing them. And the Institute trained a cadre of governmental, business, and civil society professionals in dealing with environmental protection. Staff became expert at finding and anticipating the necessary funding not only from federal agencies, but other sources as well, including foundations and international organizations and, eventually, individuals.
As the decade was drawing to a close, ELI was operating on several continents and was finding itself in a not totally unfamiliar pattern: its international work was complementing and fueling its domestic research program, and, though to a somewhat lesser extent, vice versa. A bit of symbiosis that enabled the Institute to better exploit its ecological niche.
The growing public anxieties over the kinds of hazardous and toxic waste challenges that led to congressional passage of Superfund simultaneously led to years of continued support for ELI research efforts through funding from EPA and from the departments of Energy and of Defense in implementing that statute and addressing federal sites. Of particular note: The Senate and House committees on appropriations designated that a grant of up to $500,000 be awarded for an evaluation of how the federal waste cleanup program was operating. ELI’s scrappy research division was awarded that funding, and by the end of the 1980s, the Institute’s research was generating roughly two-thirds of the organization’s total budget.
During the course of the 1980s, ELI hired two young attorneys who would go on to have singular roles in the research division, becoming Parker’s de facto deputies. James McElfish came aboard in 1986 from private practice after a stint at the Department of the Interior, and in time would be recognized as the intellectual pillar of the Institute, a post which he still occupies. He is a national authority on NEPA, wetlands mitigation, and mining, among other topics. In 1988, John “Jay” Pendergrass joined ELI from academia, after stints in private practice and Interior. He began on its Superfund work and eventually became head of the State Center, where he remained until he was named vice president of programs and publications in 2015. Longtime readers surely know him from his 20 years as author of the Forum’s “Around the States” column, which he established as must reading in agencies around the country.
ELI finished the decade with total annual revenues of $3.8 million, more than twice what it reported in 1980. The award dinner produced $81,930 in funding in its first year, growing to $231,612 by the end of the 1980s. But at another level, the decade marked ELI’s survival of its teen years, which often beset young NGOs that exhaust their initial funding and must reinvent themselves as needs for their services evolve. It also marked the beginning of ELI’s hiring of — and equally importantly its retention of — highly qualified professional staff, many of them still with the organization, and its initial inroads into activities far beyond those imagined when it was conceived.
With the 1970s having been a time for ELI to define and refine its mission, the 1980s proved to be a time during which ELI would turn to entrepreneurial staff initiatives. Top managers eagerly and consistently gave high-quality staffers their entrepreneurial freedom, leading the organization to expand its horizons. All of which made the 1980s a time in which ELI secured a foundation as a global organization whose creative research, publications, and educational activities would define the field in the decades to follow.
The November/December 1994 issue of The Environmental Forum focused on NEPA’s and ELI’s 25th anniversary. Writing in that issue, ELR Editor-in-Chief Adam Babich concisely captured the essence of the time: “The first half of the 1990s has been a time of evolutionary movement, in contrast to the revolutionary changes of the 1970s . . . and the 1980s. . . . In the early to mid-1990s, Congress focused on incremental improvements to existing programs, extending and refining the major trends and theories of the preceding two decades. The courts continued to find new twists in the laws of the 1970s and 1980s, as litigation between regulated parties mushroomed.”
ELI at that point had been chosen by U.S. AID for an institution-strengthening grant, including a retreat of the Institute’s management team to another rural Virginia conference center. The intense, week-long, professionally facilitated session was incredibly productive, as managers wrestled with the major issues confronting an organization that was mature but still evolving.
One outcome of the “Wakefield Retreat,” as it became known, was the beginning of formal long-range planning. Another outcome, Futrell concludes decades later, is that ELI began to focus more clearly on board recruitment and involvement, on its mission statement, and on other internal changes too many to mention and too subtle to be obvious, but too important to neglect. ELI Board Chairman Grover Wrenn, a well-known safety and health professional, who was himself CEO of an environmental services firm, led efforts to strengthen ELI’s internal financial management systems and procedures. The Institute began to build a fund balance for the first time, evening out the waves and troughs of annual budgets that had characterized its first quarter century.
Like others across society — whether nonprofits, for-profits, governmental, academic, faith-based, etc. — ELI throughout the 1990s dealt with constant challenges to keep abreast of, and capitalize on, the quickly changing nature of work in the digital revolution. A critical development was successfully getting ELR on the Lexis and West Law services. Another was Babich’s initiatives in creating digital editions of ELI publications, including most importantly, ELR. Futrell has called that development “the most successful revenue generator” of his 23-year service as president. And in 1996, ELI launched www.eli.org. The fact that the domain name is only three letters indicates how early the Institute was in moving into social media, a leadership perch it still occupies.
Beyond the internal management and financial milestones marking ELI in the 1990s — however important they clearly were to the Institute’s survival and progress — were the innovative inroads the organization was making on global environmental issues. As it worked with in-country legal NGO partners, ELI emphasized what came to be called capacity building, a broad category that includes assistance on drafting workable legal instruments attuned to on-the-ground needs. That meant fostering locally a profession of lawyers, jurists, scientists, engineers, economists, etc. — and educating them. The Institute also worked on the governance issues raised by environmental protection, including creating durable and flexible administrative institutions able to implement, and enforce, the statutes by being attuned to the local situation.
The pins on the worldwide map showing ELI research activities expanded throughout Europe, the formerly Soviet states, the Americas from top to bottom, and India, the Middle East, and Africa. Partners numbered in the dozens by the end of the decade, ranging from key NGOs to international bodies to the judiciaries and legislatures and environmental or resource agencies of many countries. Today, ELI’s international activities now include work in China as well, and involve activities in more than 90 countries across the world, and training of nearly 70,000 environmental professionals in nearly 100 countries. But that is getting ahead of the story of the Institute’s developing global reach.
For the 1992 Rio Earth Summit, ELI organized a 14-person delegation composed of five staffers, five board members, and four visiting scholars from Latin America. “After Rio, ELI was better known abroad than in the U.S. as a major player,” Futrell says today. Board members facilitated a valuable ELI alliance with the International Union for the Conservation of Nature, helping to bring the Institute’s still-aborning research efforts’ global standing. That status was enhanced when a few years later, a staff-led effort enabled ELI to join forces with the International Network for Environmental Compliance and Enforcement. ELI was already known for enforcement training in many venues. The INECE collaboration gave the Institute even greater worldwide standing and, after a hiatus, was reinstituted in 2016.
With a focus on what Senior Attorney Carl Bruch, director of international programs, calls “developing vibrant civil society engagement in environmental governance,” the organization in the 1990s planted fertile seeds by which it now has moved into activities involving environmental peacebuilding, the globe’s expansive ocean environment, and judicial training of lawyers “from all corners of the world.” One key to those ELI activities, Bruch writes: “In many countries, environment has been a wedge issue to make governance more transparent, participatory, and accountable; governments were willing to provide access to environmental information, even while broader transparence was lacking.”
One key event that helped cement ELI’s standing in international environmental governance was the 1998 three-day symposium at the Smithsonian Institution on the Environmental Consequences of War. Speaking at the conference were two Nobel Peace Prize laureates, former Soviet President Mikhail Gorbachev and current Costa Rican President Oscar Arias. The event happened in the aftermath of the 1991 Gulf War, which created huge environmental problems when the retreating Iraqi army set oil wells on fire. That may have been illegal under international environmental law and the law of war, but both bodies are weak and unenforceable when it comes to such acts, the conferees concluded at ELI’s suggestion. The conference was run by Senior Attorney Jay Austin seconded by Bruch, and the two of them followed up by publishing a book on the topic with Cambridge University Press.
As have other leaders of ELI’s international programs, Bruch credits former and current ELI top executives for helping provide the culture — and the financial underpinning — that has fertilized those activities. From the international program’s start in the late 1980s and continuing since then, he says, ELI leadership “has continued to provide vision, raise funds, and support staff through good times and lean.”
Notwithstanding the warranted attention above to the exceptional growth ELI experienced in its third decade on international activities, so too did it benefit from the entrepreneurial culture of the organization in terms of domestic work. The Institute ended its 30th year with total revenues of $5.6 million and a staff level of 57. Compared with other national organizations litigating and lobbying on environmental law, ELI is certainly lean. Fortunately, years of tight budgets and few employees has made the Institute efficient in the use of its own resources, enabling it consistently to punch above its weight and survive falls in the national economy.
The start of the new century, and of ELI’s fourth decade, soon brought with it Futrell’s retirement and the end of his 23 years as ELI’s longest-serving president. He was succeeded in that office by one of the nation’s most well-known and widely admired former government and corporate environmental managers, Leslie Carothers. Carothers brought to ELI her management experience. She had served as deputy administrator for EPA’s Region I, as Connecticut’s commissioner of environment, and as vice president of environment, health, and safety for United Technologies Corporation.
With that diverse professional background, including importantly experience in budgeting, business administration, and organizational leadership, Carothers stepped in and during a weak economy necessarily focused on shoring up general management, financial administration, and fundraising. She hired creative consultants to work with the staff in shaping what are now the Institute’s mission statement and vision statement. On programmatic matters, she expanded existing ELI water quality research issues to also include water resources and supply, and systemic issues confronting the world’s ocean environment. Under her leadership, the ELI Award began to recognize women as leaders, and professions beyond law.
Carothers, with her business background, would prove to be entrepreneurial. When fears arose about the environmental and health effects of nanotechnology, she and key staff like Senior Attorney Linda Breggin devised and promoted programs on how existing environmental laws could be used to take “precautionary steps” arising from risks associated with new and untested technologies. Relatedly, Carothers also worked with ELI staff to encourage nonpartisan dialogue on reform of the Toxic Substances Control Act. Looking back on that last activity, Carothers now says it “demonstrated substantial areas of agreement” that in 2016 led to passage of bipartisan amendments — the first of the major statutes to be reauthorized in 16 years.
Perhaps most importantly during that fourth decade, according to many current and former ELI employees, is that Carothers maintained the leadership style of her predecessors in that office in giving great discretion to ELI professional staff to use their own entrepreneurial interests and skills to develop new programs. As did Futrell before her, Carothers credits ELI’s researchers for creative thinking, astute staff development, and fundraising expertise. One example she cites, insisting that she personally “did not play a major role in it but vigorously supported it”: ELI’s development of a vast source of information and expertise on “the role of natural resource conflicts in environmental peacebuilding.” (She’s candid in acknowledging that the program “ended up generating the worst cost overruns of my tenure,” but adds, “it has been a very creative and ultimately fruitful initiative to understand and support successful approaches to conflict resolution.”)
With ELI transitioning in the 2000s from being primarily a beneficiary of federal government funding and a trainer on environmental legislation, Carothers and her top managers worked to increase foundation and board funding and to strengthen its overall educational activities. Facing some “significant operating losses,” ELI went through a period of what Carothers calls “painful overhead staff cuts.” Citing not only variable economic trends but also changing political winds, she points to the challenges posed by the severe financial recession a decade ago as presenting especially daunting challenges. “It is hard to revive an active environmental constituency when the economic pain is so wide and so deep, and still is,” she now says. “Fortunately, ELI’s finances held steady” even as “many larger green groups had to let people go. There may be some advantages of being so lean and mean.”
Regarding ELI’s professional staff then — and, for that matter, before and since — Carothers is in firm agreement with those who preceded and those who followed her as president: ‘Throughout ELI’s history, the organization has attracted brilliant and creative young lawyers and wonderful research assistants right out of college who want to work for . . . an environmental organization like ELI,” she says today. “And many are explicit in wanting to work for one that tries to be objective in its analysis and presentation of legal conclusions and alternatives and follows the facts where they lead. I see no lessening in the caliber of people ELI attracts and am delighted that its staff is much more diverse in background and ethnicity than ever before.”
ELI had started the first decade of the new millennium with total revenues of $5.2 million, and ended that decade with total revenues of $5.5 million. Given the financial headwinds the staff faced, that small increase is a significant victory.
But amid pages and pages of individual program descriptions — and what ELI staff fairly characterize as their “success stories” — one fascinating activity, unique in ELI’s 50-year history, warrants special mention here. Perhaps better than any other single action, it illustrates the narrow window in which the organization has successfully managed to maintain its reputation for nonpartisan, but relevant, research on and engagement with critical environmental protection issues.
As described by long-time Senior Attorney Jay Austin, who today is ELR editor-in-chief, the story began in an austere setting, the kind not so readily associated with an important historical event: an abandoned sand and gravel pit near Chicago, site of the 2001 SWANCC case.
The seemingly legalistic and academic, but nonetheless critical, issue in question involved the constitutional breadth of the Commerce Clause as it might apply to “Waters of the United States,” the term of art defining the scope of the Clean Water Act. An important point to keep in mind is that U.S. courts, up through and including the Supreme Court, over the decades and in numerous decisions in effect have enshrined the Commerce Clause as a critical underpinning of federal regulation. As a result, constitutional challenges to statutes such as the Clean Air Act and Clean Water Act had gone nowhere. The Supreme Court’s 1981 upholding of the surface mining law was viewed by much of the legal community as in effect “closing the book” on challenges to the constitutionality of those laws based on Commerce Clause arguments. Before SWANCC, few claimants wasted their clients’ or courts’ time arguing otherwise. And those who made such arguments found them summarily dismissed.
The unprecedented action ELI took in January 2006 was to file with the Supreme Court an amicus brief in what was to become a landmark ruling. Rapanos v. U.S. involved two wetlands disputes and the scope of the Commerce Clause relative to Waters of the United States. From ELI’s perspective, that triggered a commitment-driven response: It dealt with wetlands, long an ELI area of emphasis and one on which it could rightly claim to be among the nation’s leading experts; and it dealt with the essential constitutional and legal basis for protecting the environment.
ELI’s Endangered Environmental Laws program was initiated in 2002 by President Futrell with foundation funding and strong internal legal staff support. A year later, newly seated President Carothers inherited responsibility for seeking board support for an aggressive new program that included filing amicus briefs in selected cases raising “core constitutional issues . . . that could adversely affect the foundation of the nation’s environmental law system.” The board resolution authorizing such filings was adopted by a majority vote, but not without dissent. Several board members representing corporations objected to departing from ELI’s tradition of not participating in litigation of any kind, while a number of member law firms protested the prospect of ELI counsel potentially appearing in a case in opposition to their clients. “I had fences to mend after this decision,” Carothers says today.
But the choice of the wetlands cases and the brief filed in 2006 were not hard to defend. The array of issues presented made it a virtual slam-dunk for ELI’s first and only amicus brief (so far). “If ever there was a question on which ELI should intervene with an amicus brief,” Carothers has said, “this was the right one.”
She, Austin, and ELI staff attorneys Bruce Myers and Lisa Goldman worked with pro bono counsel from the law firm of WilmerHale to write the 30-page brief. “We burned some midnight oil together, and it was terrific fun,” Carothers says today. She describes the resulting brief as a “very scholarly analysis from the leading think tank on that particular set of issues.” ELI once again was able to exploit its unique legal niche and make a real impact on the legal environment.
Given the scope of the Supreme Court’s 2006 mixed decision in the Rapanos case, and given its raising issues at the heart of the Institute’s being and existence, Austin says, “It was indeed an important place for ELI to take a stand.” Years later, Institute lawyers then on the staff and since retired take pride in knowing that Justice Anthony Kennedy cited the Institute’s brief in his controlling opinion, and did so pointing not to a policy issue, but rather to a factual point relating to wetlands. Kennedy’s “significant nexus” legal test also echoed ELI’s discussion of what kinds of “functional connections” would help establish whether wetlands fall into the classification of Waters of the United States.
Stay the course and full speed ahead best characterizes ELI as it entered its fifth decade. It did so with two new top executives succeeding the two immediately prior presidents whose combined 31 years as president had most shaped the Institute.
The texture, feel, culture, and character of ELI by 2010 were clearly set. The organization had in hand a wide range of domestic research, educational, publishing, and convening activities. A number of them by that time were pretty much baked in to the broader environmental legal community, and more and more also with environmental professionals beyond the bar. In addition, ELI’s innovative, and in many ways unprecedented, international forays were not only breaking new ground but also becoming a standard component of international environmental education, training, and governance.
With Carothers concluding her eight-year tenure in 2011, prominent environmental attorney John C. Cruden was selected after a national search to be ELI’s next president. Cruden at that point had served since 1995 as deputy assistant attorney general in the Environment and Natural Resources Division. An elected president of the District of Columbia Bar, the largest bar in the country, and a former chair of the American Bar Association’s Section on Environment, Energy, and Resources, Cruden brought to ELI a national reputation. He says he took over the ELI responsibility with every expectation that he would serve until his eventual retirement. But a phone call came from Attorney General Eric Holder asking the experienced lawyer to return to head up ENRD and defend President Obama’s Clean Power Plan in court. Cruden left ELI in January 2015.
Starting under Carothers and continuing under Cruden, ELI continued to build on the professional environmental management practices it had been cultivating since 2003. Those efforts involved continued oversight not only of ELI financial matters (its top financial staffer, long-serving Loretta Reinersmann, even managed to earn her CPA while working full-time for ELI) but also further development of existing programs and even more emphasis on innovative environmental research and consulting work in foreign countries.
ELI during Cruden’s three-and-one-half years as president remained fully supportive of its expanded international role and also opened new avenues for professional leadership and fundraising with the creation of an ELI Leadership Council, designed to appeal to leading outside environmental professionals. That effort involved holding regular functions, often in Washington, D.C., but also in Dallas, San Francisco, and New York City.
In addition to educational activities in Jordan and in the Dominican Republic for professionals there, ELI under Cruden’s leadership did judicial training on environmental law for the Mexican Supreme Court — a significant marker of status for a very successful educational program.
In what some consider a significant break from its practice of avoiding attention, ELI in its fifth decade began to more regularly welcome media coverage. The organization, for instance, began to regularly hold book launches for its new publications. Cruden personally took and welcomed frequent phone calls from mainstream media outlets seeking his perspective on this or that breaking environmental issue.
With Cruden returning to public service, ELI once more turned to a veteran environmental lawyer for its president. In September 2015, Scott Fulton, a former general counsel and acting deputy administrator of the Environmental Protection Agency, took over. An internationally known expert on environmental governance and rule of law, Fulton brought with him experience in environmental enforcement with the Justice Department, and he had worked as head of EPA’s Office of International Affairs.
Fulton speaks of his commitment to “making sure that ELI is adapting and modernizing in alignment with a rapidly changing world.” Toward that end, the Institute undertook and completed an “ELI Vision 2021” strategic planning process that, among other things, led to a reorganization of staff into three areas: Development and Membership, Programs and Publications, and Finance and Administration. Fulton talks about wanting ELI to maintain its standing as a “nonadvocacy, nonpartisan” group that “everybody in the environmental field can believe in.” He also accepts the characterization of ELI as being “center-progressive” on the ideological spectrum.
Under Fulton, ELI once again assumed leadership of the International Network for Environmental Compliance and Enforcement, involving more than 2,000 professionals from 150 countries, building on the Institute’s vast experience in training enforcers. And it launched a program with the government of China to “bolster good government and the rule of law.” It helped launch a means of building judicial capacity with the start of the Global Judicial Institute for the Environment. This activity also builds on one of ELI’s long-standing and universally regarded strengths: training the judiciary in the United States and in countries on all other continents. In total, ELI has trained 2,500 judges in 28 countries.
In addition to those critical offshore activities, ELI in 2018 reported working with local and regional interests and with various communities in Alabama, Florida, Louisiana, Mississippi, and Texas on restoration efforts resulting from the massive Deepwater Horizon oil spill in the Gulf of Mexico. It conducted research on co-digestion of food wastes at wastewater recovery facilities in nine different states. And it engaged in climate change and migration issues in three states; with enhanced Inuit self-governance of marine resources in Alaska; with efforts to reduce food waste in Nashville; and with capital infrastructure projects involving “green street” elements in public rights-of-way in seven mid-Atlantic states.
ELI in its 2018 annual report published a “Successes by the Numbers” graphic that provides a glimpse into some quantitative indicators of its activities in that year and up through that time. The Institute held 120 educational events, seminars, and webinars that year alone, involving, both online and in person, more than 6,400 individuals, with events held in nine different states and several countries. In total, to date ELI has trained 71,000 lawyers and environmental professionals representing 170 countries. And total revenues last year were $6.2 million for a staff of just under 50 full-time individuals.
Through countless research programs, publications, educational events, and convenings of stakeholders — a number of them unquestionably innovative and imaginative — ELI clearly deserves its standing as profoundly multifaceted. To describe what ELI is has always been like the Indian fable of the five blind men and the elephant — this article thus ultimately fails to give the complete picture. The breadth and scope of its program activities is matched by the geographic scope of those initiatives, and any reasonably complete accounting would take a book to describe.
But that’s okay, because ELI is not so much known for its programs and activities as for its people, and that has been the blueprint for its success. All its presidents have had the same mantra: hire the best staff and give them the support and guidance they need to achieve their professional aspirations in advancing environmental protection. By all accounts, the organization has enjoyed not only a widely praised top tier of managers, but a group that has made ELI their life’s work, remaining as employees for decades. The Institute has also been blessed with a huge array of volunteers, from course faculty at one level to members of the board’s executive committee (a busy group) at the other extreme. And everyone has recognized that it is also people who are the Institute’s customers — programs always emphasize the human dimensions to environmental problems.
ELI’s “honest broker” stature, and its high level of success in maintaining that position, is often cited as having widespread staff respect and support. A former top staffer points to ELI’s having “a highly credible and appealing mainstream, independent brand in the field. The Institute is well positioned as a progressive voice that reaches out” to diverse interests and treats them “on equal footing.”
One long-time staff attorney summarizes ELI’s philosophy this way: the Institute is proudly pro-environmental protection, “but not pro or con on how that occurs.” Another characterizes its staff as being “militant generalists.” Program directors and managers are committed to empowering staff creativity and innovation. An ELI founder, looking back on the organization as it nears its 50th anniversary, put it simply: “There’s never been any mediocrity at ELI.”
Staffers frequently comment that ELI throughout its history, if only sometimes by financial necessity and self-preservation, has been nimble and flexible, able to adapt quickly to changing policy, political, and economic winds and move into new substantive areas as needed. “We’re scrappy,” two staffers told me. Significantly, for those professionals whose resumes reference their previous employment with ELI (and there are hundreds of them), many have moved on to highly respected top-level public- and private-sector positions. They constitute a virtual Who’s Who of well-recognized environmental professionals, spanning numerous disciplines, philosophies, and positions of considerable stature and status. Many remain active as volunteers or participants in some form of ELI activities long after they have ended the employment relationship.
No organization, needless to say, is perfect, and ELI makes and deserves no claim of perfection. Some observers think it could have been doing a better job through much of its history — and in particular in its earlier decades — in telling its own story within and beyond the sphere of environmental lawyers and other professionals for whom interacting with ELI is part of the day’s work.
The Institute has never been headline-hungry, has seldom been the stuff of front-page news. That approach over many years was conscious and strategic, as the organization routinely did more to enable funders to wag their tails than ELI did in seeking media attention for itself. Nonetheless, there’s likely a middle ground for its communications and outreach efforts that could prove beneficial not only for ELI institutionally but also for the environmentally concerned public and policymakers alike.
The story the Institute has to say about how to improve humanity’s efforts to protect the environment is a tale worth telling, both informative on the past and instructive on the path ahead. Just ask the citizens in the Gulf of Mexico states whom ELI helped in the aftermath of the Deepwater Horizon oil well blowout. Or the members of an indigenous community in Latin America affected by a proposed mine in their traditional lands. Or the EHS professional in an American corporation who needs help in working with agencies in maintaining compliance. Or the law firm attorney whose client wants credit for putting in place an environmental management system. Or the staff at a local litigating NGO who need expert legal analysis. Running through these achievements is a single continuous thread: the Institute’s proposals have usually — but not always — been more evolutionary than revolutionary.
Part of the ELI recipe is to start with existing legal and governance tools and work within the system. The exact ingredients and the manner in which they are added to the stew varies according to the need, drawn from ELI’s well-stocked quiver of legal tools.
Other modest shortcomings and minor imperfections no doubt exist, but ELI has proven itself through its first five decades as having the critical board and executive leadership skills essential to quickly adapt to changing times, and the strong and committed staff and expansive network of volunteers and participants — all involved in bringing legal tools to bear in the race to save the planet — to overcome any hurdles as they arise.
So much so that 50 years down the road, others almost surely will be writing about ELI’s 100th anniversary and the continuing progress by then in maintaining a healthy environment in a sustainable economy, in keeping with the Institute’s vision and mission. The rule of law, and the professionalism of the people sworn to uphold it, is certain to remain at the heart of ELI’s method and approach. So are informing citizens and policymakers — an approach established by NEPA exactly 50 years ago and central to ELI in the five decades since. And it is no understatement to say that the need for what only this Institute can do — to be “a national center . . . where talent could be systematically mustered,” as expressed in the New York Times’s account of ELI’s founding mandate by the Airlie House conferees 50 years ago — is the template for the coming half century as well. TEF
SEMICENTENNIAL ❧ A half century ago, a group of concerned activists called for the creation of an organization to nurture a new field called “environmental law.” Advancing policy and legal process — and the professionalism of those sworn to uphold them — were then and remain today the key ingredients in ELI’s recipe for success.
In-Lieu Fee (ILF) mitigation is one of the three primary mechanisms—along with mitigation banks and permittee responsible mitigation—that permittees can use to satisfy compensatory mitigation requirements. Through an ILF program, a permittee may satisfy their legal obligations under the 2008 Compensatory Mitigation Rule by purchasing credits from the program “sponsor”—a government or non-profit natural resources management entity—who then uses the funds to restore, enhance, or protect wetlands and streams.
The Clean Water Act is facing unprecedented threats. That’s the clear message from a breadth of water policy scientists, activists, and other professionals concerned about the Trump administration’s proposal to replace a 2015 Obama-era rule defining the Waters of the United States that must receive federal protections under the act. If adopted, according to numerous critics bracing for anticipated legal battles, the Trump proposal would ignore extensive scientific research and significantly reduce the scope of protected streams and wetlands in the most drastic weakening of the nation’s water law since its passage in 1972.
Farm community concerns about the 2015 rule’s “overreach” have largely driven the administration’s momentum to overturn it. But, says Kyla Bennett, science policy advisor for Public Employees for Environmental Responsibility, agriculture’s concerns about the 2015 rule were overblown. Fears were aggravated by then EPA administrator Scott Pruitt who, during farmland visits, claimed that under the 2015 rule the agency would regulate “puddles.” In reality, the CWA provides large agricultural exemptions, Bennett notes.
Farmers also complained that under the 2015 rule, they would need costly outside expertise to identify wetlands and waters requiring permits. The proposed replacement promises greater regulatory clarity and certainty. But it would actually create a much more complex process than under the Obama-era rule, Bennett says.
Central to the proposal’s complexity is an untested new concept of a “typical year,” says James Hague, senior water policy advisor for The Nature Conservancy. To establish whether a wetland or other water has a hydrological connection to a WOTUS, thus making it a jurisdictional U.S. water, would require 30 years of past rainfall data. The new concept is indefensible given that precipitation is increasingly variable, not “typical,” and would likely face implementation difficulties, Hague says. It would require extensive field testing.
A core concern is that the proposal lacks the scientific basis necessary to achieve the CWA’s objective of restoring and maintaining “the chemical, physical, and biological integrity of the nation’s waters,” says Hague. Regarding stream protection, the proposal is especially unscientific in excluding ephemeral streams from jurisdictional waters. Eighteen percent of streams are ephemeral nationwide, and twice that amount in the West. The proposal also contemplates excluding intermittent waters from CWA jurisdiction. A 2008 study published by EPA and the Department of Agriculture estimated that nearly 60 percent of continental U.S. streams are ephemeral and intermittent.
The 2015 rule has robust scientific foundations — specifically, EPA’s “Connectivity Report,” based on more than 1,200 peer-reviewed scientific studies. The report emphasizes that upstream ephemeral and intermittent streams significantly influence downstream water quality, a finding EPA’s Science Advisory Board strongly supported. The science has held up well, says Hague, including in a peer-reviewed update published in 2018 in the Journal of the American Water Resources Association.
Concerns about the proposal’s lack of scientific grounding are shared by the Chesapeake Bay Foundation’s federal legislative and policy manager, Denise Stranko. Furthermore, in adopting “the narrowest definition of WOTUS ever applied,” the proposal goes beyond just repealing the 2015 rule and overall weakens the CWA — the basis for the entire bay restoration effort, says Stranko. A weaker CWA compromises EPA’s leadership role in the law’s Chesapeake Bay Program covering 111,000 miles of creeks, streams, and rivers and 1.7 million acres of wetlands. According to CBF, an estimated 18 percent of streams and 51 percent of wetlands nationwide would lose their protected status under the proposal.
While the proposal relies on states to step up to the protective function, many will not backfill the federal retrenchment because they have limited budgets and face “real capacity constraints,” in Hague’s wording. Moreover, even if a state has an active wetlands protection program, downstream states could still see increased pollution and added costs. CBF notes that the Virginia and Pennsylvania state legislatures have recently made many attempts to weaken their wetlands programs.
“Of all the administration’s horrific environmental actions, this is by far the worst,” PEER’s Bennett says. Water issues caused by climate change will worsen, resulting in extensive adverse impacts to drinking water and on human health, flood protection, and fish and wildlife species, she adds.
When the inevitable lawsuits occur, it is hard to imagine a court will give the agencies deference because the proposal is so scientifically and legally indefensible, says Bennett.
Muddy waters: Critics decry weak scientific basis of WOTUS proposal.
Now in their 29th year, ELI’s National Wetland Awards are presented to individuals who have excelled in wetlands protection, restoration, and education.
“These men and women are on the forefront of protecting wetland resources in the face of development and climate impacts,” said ELI President Scott Fulton. “Through their dedication and achievements, they inspire wetlands protection across the country and worldwide.”
The ceremony kicked off with a keynote speech from Leah Krider, senior counsel, environment, health, and safety, at the Boeing Company, who described its expansion and mitigation efforts in South Carolina.
“Conservation and economic growth are not mutually exclusive. Conservation is not only good for the environment, for the communities. It makes good economic sense,” Krider said.
Awardees were recognized for their individual achievements in six categories:
Landowner Stewardship: For 28 years, William and Jeanette Gibbons and their family have devoted their time and financial resources to restoring degraded land and water on their property at Cedar Breaks Ranch in Brookings, South Dakota. They developed their property into a showcase of how various conservation practices can be seamlessly and profitably integrated into a working farm. They also use their land to further research and education on natural resource management approaches.
Science Research: Kerstin Wasson is the research coordinator at the Elkhorn Slough National Estuarine Research Reserve in Watsonville, California. She engages citizen scientists in collecting water quality data and counting migratory shorebirds. She launched an ecosystem-based management initiative that brought together stakeholders to develop a shared vision for restoration of the estuary’s wetlands. Kerstin has led collaborative projects across the network of National Estuarine Reserves.
Education and Outreach: Mark D. Sees has served as the manager of Florida’s Orlando Wetlands Park for over 20 years. In addition to managing the wetland treatment system, he has evolved the park into a center of public recreation and wetlands education and research. He initiated the annual Orlando Wetlands Festival to provide 5,000 local children and adults an opportunity to tour the wetlands to understand their ecological importance.
State, Tribal, and Local Program Development: Maryann M. McGraw, wetland program coordinator for the New Mexico Environment Department, initiated the state’s wetlands program and continues to provide vision and guidance to ensure the program reflects the importance of wetlands and riparian areas in the arid west. She developed rapid assessment methods for montane and lowland riverine wetlands, confined valleys, and playas of the Southern High Plains, which provides data needed to underscore state wetlands water quality standards and anti-degradation policies.
Conservation and Restoration: Latimore M. Smith is a retired restoration ecologist with The Nature Conservancy in Covington, Louisiana. A botanist and plant community ecologist, he spent over 15 years with the Louisiana Natural Heritage Program, documenting the ecology of habitats across the state. He was the first to formally describe a variety of previously undocumented natural wetland communities, including rare longleaf pine flatwood wetlands.
Wetlands Business Leader: Roy R. “Robin” Lewis III of Salt Springs, Florida, was the winner of this new award. For more than four decades, Lewis has been at the vanguard of wetland restoration and creation, designing or assisting in the design of over 200 projects around the world. He founded two environmental consulting companies and is president of Coastal Resource Group, Inc., a nonprofit educational and scientific organization. He also works with the Association of State Wetland Managers to provide education opportunities and resources.
Ramsar Convention event presages 13th conference of parties
Before the 29th Annual National Wetlands Awards ceremony — see facing page — ELI hosted a panel discussion on the Ramsar Convention on Wetlands of International Importance.
The treaty calls attention to the rate at which wetland habitats are disappearing, in part due to a lack of understanding of their importance. The convention provides an international framework for action and cooperation to promote “the conservation and wise use of all wetlands through local and national actions and international cooperation.”
The United States became a party to the convention in 1986 and has since designated 38 sites covering 4.5 million acres nationwide.
Attendees of the program, An Introduction to the Ramsar Convention, learned about efforts at the local, national, and international level to implement the accord.
Panelists included Cade London, Fish and Wildlife Service; Maryann M. McGraw, New Mexico Environment Department; and Barbara De Rosa-Joynt of the State Department.
After receiving an overview of the evolution of the convention and insight into the international community, the audience heard about the primary goals of Ramsar at the domestic level.
The convention covers a broad range of ecosystems considered as natural and man-made. The final presentation focused on one Ramsar site in New Mexico. The Roswell Artesian Wetlands is a desert ecosystem made up of a complex of springs, lakes, sinkholes and saline wetlands situated along the Pecos River. These wetlands support over 360 species of waterfowl as well as other animals and plants, including a number of rare, endemic, and endangered species.
As panelist De Rosa-Joynt explained, wetlands knowledge and science is consistently evolving and informing the future goals of the convention.
The 13th conference of the parties will be held this fall in Dubai. Themed “Wetlands for a Sustainable Urban Future,” the conference is expected to draw over 1,200 representatives from the parties. On the agenda are climate change; agriculture; so-called “blue carbon”; and polar wetlands.
Aiding China in coming to grips with country’s excessive pollution
In March, ELI, with the assistance of the Pillsbury law firm, prepared a report, Managing Environmental Protection and Economic Considerations Under Select U.S. Environmental Laws and Permitting Systems, for China’s Ministry of Environmental Protection. The study explains how the United States has balanced economic considerations and environmental protection through the Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act, and the Endangered Species Act.
ELI and the China Environmental Protection Foundation then held capacity building workshops at the Tianjin University Law School on environmental public interest litigation. While the focus was on participation of Chinese NGOs, other entities involved included Supreme People’s Court judges and prosecutors from the Supreme People’s Procuratorate.
Reforms to China’s Environmental Protection Law establish authorities for the government and the public alike, with the added ability of authorized civil society groups to file citizen suits. However, the success of these improved systems relies on a multifaceted system of accountability, with both the government and civil society playing roles. ELI is providing technical assistance, capacity building, and legal training to NGOs that have been approved by the civil authorities to engage in civil environmental litigation.
ELI staff attorney Zhuoshi Liu has been a leader in this public interest environmental litigation capacity building work, and in developing and hosting the workshops. A China native, Liu brings a wealth of knowledge to ELI’s China Program and the Institute as a whole.
Participants also benefitted from the expertise of ELI faculty from the Institute’s extended community.
Jeff Gracer of Sive, Paget & Riesel P.C., a member of ELI’s Leadership Council, traveled to China for January’s conference. The conferences included presentations from Leadership Council members Robert (Buzz) Hines of Farella Braun + Martel LLP, and former ELI President Leslie Carothers as well as longtime member Dan Guttman of New York University Shanghai.
Field Notes: ELI on the scene in flooded Ohio, polluted Gulf
In summer 2017, ELI Senior Science and Policy Analyst, Rebecca Kihslinger, and ELI’s partners at the University of North Carolina’s Institute for the Environment, traveled to Ottawa, Ohio, where state and village officials and residents and business owners came together to brainstorm on uses for flood buyout properties during the Making the Most of Ottawa’s Floodplain Buyouts Workshop.
Ottawa had purchased 55 floodplain properties since 2008, totaling 25 acres, using funding from government grants, Hazard Mitigation Grants, and Hazard Mitigation Assistance grants. Recently, the Federal Emergency Management Agency approved the first of three major projects planned to utilize these buyout properties by the Greenspace Development Committee. A once vacant lot will become Rex Center Park.
In continuation of ELI’s work in the Gulf of Mexico since the BP oil spill eight years ago, ELI traveled to Gulfport, Mississippi, to encourage public engagement efforts. To help members of the public better understand how to get involved, ELI, along with Environmental Management Services, Mississippi Commercial Fisheries United, and Public Lab, co-sponsored an event on Engaging in the Gulf Restoration Processes: How the Public Can Help Shape Restoration. The goal of this event was to provide participants with tools and information that they can use to more effectively take part in and understand the restoration and recovery efforts.
On April 16, ELI and co-sponsors convened a panel of environmental justice leaders, including keynote speaker Rep. Raul Ruiz, co-author of the proposed Environmental Justice Act of 2017.
Continuing discussions from a panel held last November, speakers explored climate justice, siting issues, ramifications of extreme weather events on marginalized communities, and ways in which practitioners can empower and support environmental justice communities through their own work.
A networking reception followed to further conversation and discussion of key topics at the forefront of environmental justice. On display was the newly released book from ELI Press Environmental Justice: Legal Theory and Practice, 4th Edition.
After announcing his $1.5 trillion infrastructure plan, President Trump has sought to streamline and expedite the environmental review and permitting process for projects under multiple environmental laws, ranging from the National Environmental Policy Act, Endangered Species Act, and Migratory Bird Treaty Act to the Clean Air and Clean Water acts.
Trump submitted to Congress an ambitious legislative “roadmap,” which proposes a number of far-reaching changes to the environmental review framework with a goal of shortening the process for approving projects to two years or less.
To examine these developments ELI and Arnold & Porter cohosted a conference entitled Infrastructure Review and Permitting: Is Change in the Wind? High-level government officials, practitioners representing industry and environmental NGOs, and congressional representatives were present to address the wide range of environmental permitting and review challenges across sectors, including transportation, energy, transmission, renewables, and more.
Panelists discussed the role of policy and litigation in shaping these developments over the next years and beyond.
Latest flock of National Wetlands Awards winners.
For over seven years, ELI’s Gulf of Mexico team has been working to provide information to stakeholders about the restoration and recovery processes put in place after the oil spill. This includes the Gulf Coast Ecosystem Restoration Council founded by the RESTORE Act, which is set to receive almost $1.6 billion.
Last fall, the council announced that it was seeking public comment on a proposal to “approve implementation funding for the Robinson Preserve Wetlands Restoration project” in Florida. If approved, the council will allocate $1.8 million in RESTORE Act funds to implement the project, including a “reallocat[ion of] $470,910 from planning [funds] to implementation.” The project will restore 118 acres of habitat, including coastal upland, wetland, and open water habitats in the Tampa Bay Watershed.
How is the council able to reallocate nearly a half-million dollars in planning costs to implementation activities? The answer lies, in part, in its use of a mechanism intended to make environmental compliance more efficient: “adoption” of an existing environmental review document. When planning funds for the Robinson Preserve project were first allocated in 2015, it was expected that part of those funds would be used for “any needed environmental compliance activities,” including conformity with the National Environmental Policy Act. Since then, the council has identified and is proposing to adopt an existing NEPA document prepared by the project’s sponsor, the National Oceanic and Atmospheric Administration, in 2015: a programmatic environmental impact statement addressing a range of restoration types. If the council’s current proposal is approved, the funds that were originally allocated for planning will be reallocated to implementation.
There are mechanisms available under NEPA to help make the process more efficient, including the adoption of an existing EA or EIS. NEPA allows a federal agency to adopt an existing document (or portion of it), even if prepared by a different agency, “provided that the statement or portion thereof meets the standards for an adequate statement.” In cases where “the actions covered by the original [EIS or EA] and the proposed action are substantially the same,” the agency is not required to recirculate the document for comment prior to adopting it as final.
Here, the council notes that “NOAA has determined that the specific implementation activities for which funding is being sought [for the Robinson Preserve project] are fully covered by [the existing] programmatic EIS, and therefore no further NEPA review would be needed.” If the current proposal is approved, the project can be implemented on an expedited basis and there will be additional money available for on-the-ground restoration activities.
This is not the first time the council has adopted existing NEPA documents to expedite implementation of a restoration project. Earlier this year, the council announced that it approved implementation funding for the Palm River Restoration Project in Florida, including the reallocation of $87,750 from planning to implementation. To do so, council staff worked with EPA, the Corps of Engineers, and the state of Florida “to identify an existing EA and associated environmental compliance documentation that could be used to support council approval of implementation funding for Palm River.”
The corps had prepared the existing documentation when it issued a general permit for aquatic habitat restoration, establishment, and enhancement activities. The council similarly adopted an existing EA to expedite and increase implementation funding for its 2016 Apalachicola Bay Oyster Project.
As the pace of restoration in the gulf increases in the coming years, there are likely to be further opportunities for the council and other restoration programs (e.g., the natural resource damage assessment process) to identify existing NEPA documents that satisfy compliance requirements in whole or in part. This could lead to expediting restoration projects and possibly directing more funds to restoration implementation.
ELI’s Gulf of Mexico team has released two papers related to expediting restoration projects: “Fast-Tracking ‘Good’ Restoration Projects in the Gulf of Mexico” (February 2017) and “Fast-Tracking Restoration: Addressing Resource Constraints in Federal Agencies” (December 2017). We are continuing to work on this issue in 2018 and hope to further contribute to the dialogue on this important topic.
More bog for the buck.
Conservationists honored with Wetlands Awards.
ELI is a leader in research and capacity building in the area of in-lieu fee mitigation. This page contains resources from past ELI reports, webinars, and workshops on in-lieu fee mitigation. Check back for updates on upcoming webinars and reports. Click here to return to the Wetland's Program homepage.
Improving In-Lieu Fee Program Implementation Guides
Since 1993, FEMA’s Hazard Mitigation Grant Program has funded the acquisition of over 55,000 flood-damaged properties. Under FEMA’s acquisition programs, once properties are purchased following a disaster, existing structures must be removed and the land must be dedicated to open space, recreational, or wetland management uses. These properties can offer opportunities to restore and permanently protect natural habitats and help conserve biodiversity, while also providing community amenities and improving resilience.