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Re-Imagining Environmental Governance: The Future of Environmental Law

Friday, March 29, 2019

Robert (Buzz) Hines

Partner, Farella Braun + Martel LLP

Not to dwell on the past, but I have been struck of late reading obituaries of certain leading figures in environmental law by a recurrent theme, which is essentially captured by the following quote: “This was an old-school environmentalist, when Republicans and Democrats all agreed the environment should be protected.”

In turn, this led to thinking about presidential administrations over the years, from the late 1960s until now, and how those administrations and Congress recognized the importance of environmental protection, and how their efforts to do so were certainly not without argument and advocacy on the substance and interpretation of statutes, regulations, and rulemaking, but were collaborative and with a higher purpose in mind.

George Herbert Walker Bush may have captured it best in his inaugural address on January 20, 1989, after winning the presidency in a landslide popular and electoral vote, when he said:

To my friends, and, yes, I do mean friends—in the loyal opposition and, yes, I mean loyal—I put out my hand. I am putting out my hand to you, Mr. Speaker. I am putting out my hand to you, Mr. Majority Leader. For this is the thing: This is the age of the offered hand. And we can’t turn back clocks, and I don’t want to. But when our fathers were young, Mr. Speaker, our differences ended at the water’s edge. And we don’t wish to turn back time, but when our mothers were young, Mr. Majority Leader, the Congress and the Executive were capable of working together to produce a budget on which this nation could live. Let us negotiate soon and hard. But in the end, let us produce. The American people await action. They didn’t send us here to bicker. They ask us to rise above the merely partisan. “In crucial things, unity”—and this, my friends, is crucial.

So, in a “re-imagining” of environmental governance, why not focus on these long-held principles of protecting the environment, ensuring that risk to human health is eliminated, or at least mitigated or managed, and working to maintain and improve the quality of our environment. In President Bush’s words, “let us produce.”

Now we see through a glass darklyOn a practical level, the environment, and its protection, does not benefit from partisan platforms and rhetoric. It does, however, benefit from ensuring that the agencies charged with its protection are sufficiently funded, and that they are led in a way that recognizes the need for thoughtful, reasonable regulation based on science and technical facts, clearly articulated compliance directives, and timely and consistent enforcement where and when necessary.

The role of technology and related advancements will continue to be a key aspect of environmental protection. From the auto sector continuing to focus on EV development and alternatives to fossil fuels, to carbon capture, battery storage, and “mundane” things like more efficient light bulbs, issues of the day can be addressed and a future protective path for the environment can be realized. Truly cooperative federalism will also continue as a key feature of environmental governance as local jurisdictions and states mandate aggressive renewable portfolio standards, transportation-oriented housing and related development, and, where appropriate, more stringent emissions and related standards specific to those states and communities. And in the related energy sector, perhaps we can draw optimism from pronouncements like the one earlier this week where Energy Secretary Rick Perry espoused a Republican proposal to dramatically increase clean energy research spending in response to climate change. Even some form of the “Green New Deal” may gain traction. And in the international context, a coordinated approach to climate change, sea-level rise, and the related challenges of our time is critical.

So, our future governance should not only protect, but should also produce. To quote President Theodore Roosevelt from another time regarding conservation and protecting the environment:

Here is your country. Cherish these natural wonders, cherish the natural resources, cherish the history and romance as a sacred heritage, for your children and your children’s children. Do not let selfish men or greedy interests skin your country of its beauty, its riches or its romance.

These and similar ideals will serve us well as cities, states, the federal government, and the international community try to address our current and future environmental challenges.