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Bearing Witness: The Environmental Law Institute at Age 50

Wednesday, September 11, 2019

In the 1960s, a time of extreme air and water pollution across America, governments manifestly were failing to sustain a healthy environment. The conservation victories of the late 19th century and of the Progressive era in the 1920s had proven to be necessary but not sufficient. In April of 1965, the Conservation Foundation (CF) scoped out the growing threats to the North American environment with a conference at Airlie House just outside of Washington, D.C. Clearly, policies and laws were lacking. Thereafter, in 1969, under Russell Train’s presidency, CF convened a further Airlie House Conference on Law and the Environment.

The Environmental Law Institute was conceived at this seminal gathering held five decades ago this week. I attended, then a law student at Columbia. In my day, the only law courses that touched on how government protected nature were Administrative Law and a seminar on Oil & Gas law. At Airlie House, I heard James Moorman dissect how laws governing agriculture might be deployed to stem pesticide abuses. He later established the Sierra Club Legal Defense Fund and went on to lead the Environment and Lands Division of the Justice Department. I learned from David Sive and Victor Yannacone as they debated potential litigation remedies for environmental harms. I conferred with Malcolm Baldwin about the need for stronger international environmental laws. Baldwin’s Law and the Environment (1970) captured the consensus at the conference, offering the sketch of a blueprint of our new field of law.


But how to begin? ELI’s history has informed my own professional development, as it has for many others. I remember ELI’s leaders:1969 also produced the National Environmental Policy Act (NEPA), with its invention of environmental impact assessment (EIA), and then the Clean Air Act’s extraordinary innovations. Congress created the president’s Council on Environmental Quality (CEQ), and the president established the U.S. Environmental Protection Agency. I was tapped for the CEQ’s Legal Advisory Committee, beginning my career building international environmental law and my engagement with ELI’s leaders. This new field of law would be grounded in applying the knowledge of the environmental sciences for protecting public health and the ambient environment. Lots of interdisciplinary thinking would be required to elaborate the new statutes. The value of having an independent new “Institute” to assess the policies, laws, and procedures was evident. Audacious in 1969, we compared the new Environmental Law Institute to the national institutes of the sciences or engineering.

ELI 1.0 (1969-1980): Thomas Alder became ELI’s founding President and Chair of the Board, working with David Sive (ELI Board 1970-83 and 86-92) and others on ELI’s founding board of directors. They quickly hired Frederick Anderson to be Editor-in-Chief of the Environmental Law Reporter and, in 1975, elevated him to be the first full-time President of ELI. He led the complex tasks of providing legal guidance for distilling from practice the best practices for environmental impact assessment. His book, NEPA in the Courts (1973), is a brilliant restatement of how judicial remedies brought all federal agencies into effective use of EIA. ELI’s work laid the foundation for the recodification of NEPA regulations by CEQ under Gus Speth, specifically by CEQ’s General Counsel, Nicholas Yost, who had led implementation of EIA under California’s Environmental Quality Act. Both later served on ELI’s Board (Speth, 1982-88, 1990-92, and 1999-2005; Yost, 1986-90). ELI had earned its national leadership.

ELI 2.0 (1980-2003): Early on, ELI faced initial financial crises. Why donate funds to a “think tank” when legal battles to protect nature demand urgent funding? It fell to J. William Futrell, ELI’s second full-time president (1980-2003), to make that case and manage a tight budget. A former Sierra Club President, Futrell reached across all tables to government agencies, companies, universities, learned societies, and environmental nongovernmental organizations. He was proud to have met “every payroll.” He developed ELI’s capacity to win foundation and government funding for its studies and expanded ELI’s publications. He established ELI’s international outreach, joining the International Union for the Conservation of Nature (IUCN), and hosting international fellows. The fellows included: Prof. Oleg S. Kolbasov, the “Father of Environmental Law “ in the USSR, from the Russian Academy of Sciences; Prof. Charles O. Okidi, the “Father of Environmental Law” in Africa, who built his research library at Nairobi University from ELI’s; and leaders like Pedro Tarak, who went on to establish Argentina’s leading institute, the Fundación Ambiente y Recursos Naturales (FARN), based on ELI’s model. Futrell recruited John Pendergrass, currently ELI’s Vice President for Programs & Publications, who launched ELI’s judicial education programs. Futrell and his able team built ELI’s capacity to work across the entire, complex field of environmental law.

ELI 3.0 (2003-2019): Subsequent ELI Presidents, closely collaborating with their boards of directors, confirmed ELI’s unique roles while each distinctively making their own extraordinary contributions to ELI’s capacity. Leslie Carothers had served on the ELI Board (1989-2003), and a national search under ELI Board Chair Donald W. Stever tapped her to become President of ELI (2003-2011). She sustained ELI’s research and publication programs, drawing on deep experience as a corporate vice-president for environment at United Technologies, as leader of U.S. EPA in New England, Connecticut’s Environment Commissioner, and an adjunct lecturer at Yale’s School of Forestry & Environment. Today, Carothers’ confidence in ELI is strong. She is the first donor of ELI whose contributions exceed the $1 million giving level. John Cruden (2011-2015), whom David Sive had early on encouraged to build a career in this new field, brought his deep experience in the Justice Department to forge alliances with the American College of Environmental Lawyers, expanding ELI’s outreach to embrace all the nation’s seasoned environmental law experts. His leadership of ELI was recognized nationally as a high professional endorsement of ELI’s work. Scott Fulton (2015-present), as ELI’s fifth full-time President, has consolidated ELI’s research, enhanced ELI’s income, and expanded the Institute’s outreach. With his career experience at U.S. EPA, Fulton advanced ELI’s collaboration with the United Nations to promote the “environmental rule of law,” and with IUCN to expand ELI’s judicial education endeavors. Fulton pioneered ELI’s international cooperation on environmental law with China, and built new capacity-building programs for governmental environmental compliance and enforcement programs. Fulton, with able support from ELI’s Board, has ensured that ELI is on a sound financial footing in its 50th year.

ELI 4.0 (the next 50 years): ELI has made enormous professional contributions to environmental law, for local and state governments, federal agencies, and international agencies. ELI’s engagement with law firms, with executive branch agencies, and with the courts is matched by its distinctive collaborations alike with the sustainable development offices of companies and with leading environmental NGOs. ELI has never been stronger! But as sea levels rise, climate disruptions recur, the 6th Great Extinction hollows out biodiversity, chemicals permeate the food chain, and Artificial Intelligence yields new technologies to deploy, ELI’s Strategic Vision for 2021, “Making Law Work for People, Places, and the Planet,” is being overtaken by events.

Governance and the environmental rule of law are critical to our economic, ecologic, and cultural well-being, more so today than in 1969. Then, Earth held 3.6 billion of us, and now we are 7.7 billion people. All Earth’s communities need to adopt and share comparable environmental rules of the road. ELI has proven the value of its expert and nonpartisan, independent expertise in shaping the principles and practices of environmental law, at home and globally. I am grateful to ELI and each of its Presidents, and Benjamin F. Wilson, ELI’s current Board Chair and former chairs and board members and staff. It is a privilege to work with ELI.

These recollections just surf the surface of ELI’s first 50 years. For instance, ELI’s annual awards chronicle a host of tremendous career contributions to environmental law. Several hundred stories remain to be told, about all the tremendous contributions that environmental law professionals have made through ELI. This anniversary reminds all of us to tell these stories. As it has in the past, ELI will reinvent its programs to serve its mission to sustain the environmental rule of law. The blueprint for ELI’s next decades and the stories about ELI 4.0 await.