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2018 Year in Review

Wednesday, December 26, 2018
Scott Fulton, President

Scott Fulton

President, Environmental Law Institute

As we get ready to ring in the New Year, the editors of Vibrant Environment thought it might be nice to take a look back at some of the work ELI did in 2018.

While environmental quality over the past 50 years has no doubt improved, the pace of change is leaving in the dust the linear environmental strategies of the past. We’re living in a fascinating moment in time when divergent forces—private environmental governance, law, technologies, and communities—are coming together, allowing us to harness their combined power in a new environmental paradigm. In A New Environmentalism: The Need for a Total Strategy for Environmental Protection, ELI offers a new way to think about the environmental strategies of tomorrow. The article was published in the September issue of ELR’s News & Analysis and was featured at the 2018 ELI-Miriam Hamilton Keare Policy Forum. We look forward to continuing the conversation in 2019.

The Trump Administration continued to be a top story throughout 2018. One theme of the Trump Administration has been a focus on the benefits of devolving additional environmental authority to the states. A recent ELI report, The Macbeth Report: Cooperative Federalism in the Modern Era, finds that while many environmental law and policy experts support giving states with demonstrated capabilities greater independence and flexibility in running delegated environmental protection programs, important concerns remain about what proposed reforms might portend. Even enthusiasts for greater state primacy in implementing environmental programs consistently agree that EPA must continue its leading role in developing national standards, conducting scientific research, and governing on issues involving national and interstate interests. This timely report stems from “The Macbeth Dialogues,” an initiative undertaken in honor and memory of the late Angus C. Macbeth, one of the great leaders and thinkers in environmental law, and former ELI board member. 

The Trump Administration has also promised to roll back a wide array of regulations. On May 18, ELI convened a panel of experts to discuss obstacles to deregulation, including when, and how, an agency must consider costs and benefits of staying, repealing, and rewriting rules. ELI also issued an update to Environmental Protection in the Trump Era, the latest collaboration between ELI and the American Bar Association’s Civil Rights and Social Justice Section. The update covers critical changes to the environmental protection landscape under the Trump Administration since January 20, 2017.

ELI focused on a number of other domestic issues in 2018 as well. In Natural Resource Damages, Mitigation Banking, and the Watershed Approach, ELI explains how trustees can integrate natural resource damage restoration with the Clean Water Act §404 compensatory mitigation program and realize benefits such as expediting and enhancing restoration and evaluating ecosystem services more efficiently. And in RCRA and Retail: Considering the Fate of Consumer Aerosol Cans, ELI examines the benefits of materials recovery and recycling in the retail sector, using consumer aerosol cans as an example.

Also in 2018, ELI and the Alliance for Water Efficiency issued the latest Water Efficiency and Conservation State Scorecard. The report found that most states have a long way to go to shore up their legal frameworks and improve requirements that contribute to water conservation and efficiency. It also revealed that many states are unprepared for potential climate change impacts on water supplies. Where does your state rank?

Also on the domestic front, ELI continued its focus on the Gulf region. A number of different funding processes were put in place following the Deepwater Horizon oil spill to help restore and recover the Gulf of Mexico, each with their own objectives, time lines, governance structure, opportunities for the public to engage, and level of involvement by different federal, state, and other entities. Adding further complications is that these new initiatives were added to federal, state, and local programs that were in place prior to the spill. ELI issued Coordination in the Natural Resource Damage Assessment Process: General Tools and Mechanisms in recognition of the need for coordination and understanding.

And speaking of coastal communities, what would you do if your job was to manage a small coastal community besieged by job loss, irate voters, hurricanes, oil spills, and hipsters? Here’s a way to find out: boot up your laptop or tablet and check out Digital Cards Against Calamity. Last year, ELI and 1st Playable Productions launched Cards Against Calamity, designed to be not only entertaining, but also educational by raising awareness of the issues surrounding coastal resilience. In October, ELI and 1st Playable Productions have taken Cards Against Calamity online by converting the award-winning board game into a digital format. Play it today!

ELI continued to stay active internationally as well. In March, with assistance from the Pillsbury law firm, ELI prepared a report, Managing Environmental Protection and Economic Considerations Under Select U.S. Environmental Laws and Permitting Systems, for the Policy Research Center on Environment and Economy, Ministry of Environmental Protection of the People’s Republic of China. The report 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—arguably the four most significant environmental statutes applicable to private actions. And in April, ELI and the China Environmental Protection Foundation held capacity-building workshops at the Tianjin University Law School on environmental public interest litigation. Chinese NGOs, judges from the Supreme People’s Court, and prosecutors from the Supreme People’s Procuratorate all participated in these workshops. And on October 24, ELI had a second installment of its dialogue series between multinational companies and Chinese regulators, the China International Business Dialogue on Environmental Governance (CIBDEG). CIBDEG provides a pathway for dialogue between companies and Chinese regulators about regulatory challenges, best regulatory practices, and best environmental control technologies, with ELI serving as the bridge for the dialogue.

Last March, I had the pleasure of attending the 2018 World Water Forum, which is held every three years. One of the outcomes from this year’s Forum was the Brasilia Declaration of Judges on Water Justice, which sets forth 10 principles for promoting water justice through the application of water law and environmental rule of law. ELI also began developing a climate resilience regime in the Republic of Kazakhstan. Working with the Ministry of Energy, ELI is helping the nation revise its Environmental Code and related laws and regulations to integrate adaptation to climate change. ELI is also working with the government of Niue, a small island in the Pacific, to help identify and conduct legal reforms necessary for the creation of a large marine protected area projected to cover 40% of Niue’s Exclusive Economic Zone. ELI is also working to help implement a coastal and marine spatial planning approach to ocean resources management in Niue. And in partnership with the Indonesian Center for Environmental Law, ELI held a judicial training project in Indonesia supported by the Swedish Postcode Foundation to help judges become a strong player in the fight against deforestation and the path toward sustainable development. ELI and the project team travelled to Pekanbaru, Indonesia, to convene a five-day workshop on economic valuation, restoration, and compensation of environmental damages, with 38 judges from different regions in the country as well as three Supreme Court Justices.

This past spring, ELI, U.N. Environment, and partner organizations launched a Massive Open Online Course on Environmental Security & Sustaining Peace, providing a review of the multiple roles that natural resources and the environment play in the onset, escalation, resolution of, and recovery from violent conflicts. The course also presents considerations and approaches that help to understand and address social conflicts around natural resources and the environment. Over 10,000 people from around the world—including presidential advisors, journalists, security advisors, and peacekeeping professionals—signed up for this free, eight-week course.

Many readers may be most familiar with the various seminars and workshops we host each year. In addition to Western and Eastern Bootcamps and our popular “summer school” series, ELI convened numerous seminars and workshops on a wide range of topics. On June 6, ELI held a seminar, Green Finance: Leveraging Investment for Environmental Protection, to examine how law and policy can help inform green financing and vice versa, and what barriers may be preventing more investment in projects and companies with positive environmental missions.

On July 11, over 350 people tuned in to a “Breaking News” webinar, The Impact of Justice Kennedy on Constitutional Environmental Law and the Effect of His Impending Retirement, where expert panelists discussed the influence Justice Kennedy has had on environmental law, and opined on what his departure could mean for the future of environmental policy and law. And on July 31, ELI offered another Breaking News webinar, Proposed USFWS Endangered Species Act Regulations, where panelists examined recently proposed regulatory changes to how the Endangered Species Act is implemented. Be on the lookout for more Breaking News webinars in 2019.

Lastly, no year would be complete at ELI without us recognizing the good work of others. At the 2018 National Wetlands Awards Ceremony, which was held in May at the U.S. Botanic Gardens, we recognized the work of: Latimore M. Smith (Conservation and Restoration); Mark D. Sees (Education and Outreach); The Gibbons Family (Landowner Stewardship); Kerstin Wasson (Scientific Research); Maryann M. McGraw (State, Tribal, and Local Program Development); and Roy R. “Robin” Lewis III (Wetlands Business Leader). These award winners have restored, researched, and protected thousands of acres of wetlands nationwide, and their examples have inspired others to act and make a difference to protect and improve these vital natural resources. ELI will host the 30th National Wetlands Awards on May 7, 2019.

And on October 23, some 750 environmental leaders from across multiple sectors arrived at the Omni Shoreham Hotel in Washington, D.C., to hear remarks from this year’s Annual Award honoree, Lisa P. Jackson, Vice President of Apple’s Environment, Policy, and Social Initiatives and former U.S. EPA Administrator. Former Attorney General, Eric Holder, gave opening remarks. Lisa’s extraordinary work in greening Apple’s supply chain and in reducing the company’s carbon and natural resource footprint stands as a powerful example of business leadership in creating the future that ELI promotes. Her belief in environmental justice is one that aligns with the Institute’s commitment to reflecting the voice of all communities—especially the most vulnerable—in the world’s environmental laws and policies.

While this blog provides a look back at what we did in 2018, ELI’s Technology, Innovation, and the Environment program is always looking ahead. As artificial intelligence (AI) advances and environmental decisionmaking becomes internalized into AI algorithms, the legal, ethical, and public policy communities are in a unique position to ensure positive environmental outcomes. A new report by ELI, When Software Rules: Rule of Law in the Age of Artificial Intelligence, provides a brief history of AI and discusses current concerns with AI systems. And on September 17, ELI held a Member Seminar in San Francisco, where panelists looked at blockchain technology and discussed its promises and perils for the environment.

ELI’s impactful and critical work would not happen without the generosity and involvement of people like you–our Board of Directors, Leadership Council, members, and supporters–and of course ELI’s talented and committed staff. Thanks to you, ELI continues to play an important and meaningful role in making the law work for people, places, and the planet.