Thursday, November 10, 2016

Six Thoughts for an Environmental Law Student Wondering what this all Means

As a future environmental attorney, I'm confused and angry and sad. And as a human being, I'm equally as confused and angry and sad. A lot of us students are trying to process all of this today.

That was the beginning of an email that one of my students sent me yesterday.  I think she speaks for a lot of us.  So I thought it might be helpful to share a few thoughts, some but not all of them optimistic, about what we face going forward.  I should say at the outset that I am writing for the benefit of readers who, like me, think environmental protection is important and that climate change and other environmental problems are all too real.

This is going to be a battle.  There have been a few hints of hopeful speculation that perhaps Trump’s tense relationship with mainstream Republicans means he won’t adopt their traditionally anti-environmental positions.  I don’t share much of that hope.  Election Day revealed that other than a few outlying voices in the wilderness like Mitt Romney, the embrace between Trump and conservative Republicans is a big, warm bear hug.  Trump’s transition team selections also suggest that he’s going to be just another far-right conservative, albeit with fewer ideas and a shorter attention span.  And I think those far-right conservatives believe, perhaps with some basis, that loud anti-environmentalism is a key component of the glue that binds their unlikely coalitions together.

We have fought this battle before, and we have won.  Political defeats have a way of feeling new each time.  And this one is new in some ways, but the new elements have more to do with basic common decency than with the environment.  For as long as it has existed, the environmental movement and its predecessors have encountered intense opposition from extractive industries and their political allies.  And it’s often been an uphill fight.  We have lost, over and over again.

But by being persistent, we have also won major and lasting gains.  In most of the United States, air quality is dramatically better now than it was in the 1970s.  It is even more dramatically better than it would have been had we not enacted environmental laws.  Water quality also is greatly improved, though not everywhere, and we just aren’t making toxic waste dumps like we used to.  A few iconic species have been nursed out of threatened or endangered status, and we’ve also kept many, many species from going extinct.  Cities have become more livable, which reduces demand for many resources.  Renewable energy is becoming an increasingly large part of our energy mix.  Per capita water use has been dropping.  And all across the country, there are still beautiful places—some very wild, some urban, and some in between—to go enjoy the outdoors, and to be reminded of why it is so important.

We also have succeeded in building stronger institutions for environmental protection.  Environmental compliance is now baked into the operational cultures of many companies.  Other businesses, like mitigation bankers, manufacturers of pollution control technologies, renewable energy developers, and environmental consultants, use business models that depend upon environmental protection (and put a lot of people to work).  Despite the caricatures of overbearing, insensitive bureaucrats, environmental regulators have gotten much better at finding ways to make genuine environmental protections work for businesses.  There are, of course, some industries whose basic model is opposed to environmental protection, and many of those industries are old enough to have thoroughly insinuated themselves into the political sphere.  But they don’t stand for the economy as a whole.

We have many forums in which to work.  The President is obviously very important to environmental law.  But he isn’t everything.  A lot of good can still come from work at the state and local level.  Direct advocacy toward corporations has sometimes been quite effective, and there is much we could do (like, for example, providing more encouragement to corporations to stop funding industry groups whose real agendas are defined by conservative activists rather than the businesses they ostensibly serve).  And on the greatest environmental challenge of our time—climate change—progress anywhere is progress everywhere.  So we should make gains, and fight losses, on many fronts, and the net result may be positive even if we suffer crushing setbacks in some places.

We have many tools with which to work.  The classic environmental advocacy strategy has been to pass a regulatory statute, which the executive branch then implements.  On the side of land preservation, it’s been to get Congress or the executive to set land aside.  While neither strategy looks quite so promising in the years to come, it’s worth remembering that elements of each have succeeded in every presidential administration in decades.  Even the George W. Bush Administration, never known as a champion of environmental protection, signed strong new fisheries laws, advanced stream and wetland protections, and designated massive areas of the Pacific Ocean as marine sanctuaries.

But the environmental movement has long been creative in finding alternative advocacy strategies, and we can be creative again.  When finding market-oriented regulatory strategies seemed like a way to build coalitions with center-right Republicans, environmentalists embraced economic incentive-based regulation.  If supporting manufacturing and construction goals is a central priority of the new administration, we can do that, too, and it wouldn’t be anything new.  From the Clean Water Act of 1972, which included major funding for wastewater treatment infrastructure, to more recent support for solar and wind construction, the environmental movement has a history of striking alliances with people who want to build things.  There are plenty of opportunities to do more of that.

The American Voters Did Not Repudiate Environmental Protection.  Most voters want environmental protection.  Poll after poll shows that.  Environmental protection may not be a high-salience issue in many places, but this razor-thin election was not a mandate for Donald Trump to begin tearing up our system of environmental law.  Of course, he may act like he has a mandate.  But overreach provides opportunities for responses.

We Have a Powerful Advocate on our Side.  Part of the reason environmentalism was once such a bipartisan issue is that most people derive value from the natural environment.  And that’s true even in—perhaps particularly in—some of the greatest strongholds of Trump support.  Montana and Idaho are spectacular places.  The hills of rural Ohio are beautiful, as are the beaches of the Carolinas and the Gulf Coast.  I spend part of each summer in northern Michigan; it is gorgeous.  And I’m hopeful that the persistent, insistent advocacy of the environment itself will eventually bring people back to the idea that environmental protection is something worth doing—that part of the pride of culture and place that motivates many voters on all sides of the political spectrum means embracing, again, pride in the landscapes within which we live.

You signed up for this.  When you became interested in environmental law, did you think it was going to be an easy field to work in?  I doubt it.  Probably what drew you to the field, at least in part, was your sense that your participation in it would matter, and that wouldn’t be true if victories came easily.  So let’s roll up our sleeves and get to work.  Maybe that means working for an advocacy group.  Maybe it means working with business clients to find new ways to protect the environment and comply with the law while still making money and keeping people employed.  There are so many possible ways to help.  But whatever it means for you, you are needed today, now more than ever.

- Dave Owen

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Thank you for this Professor Owen. I needed this today. I miss your pep talks.

Posted by: Amanda Hall | Nov 14, 2016 10:38:34 AM

This is similar to what happened after Reagan took office in 1980. Congress ended up amending both CERCLA and RCRA to add proscriptive requirements to both statutes that imposed strict deadlines on EPA.

Posted by: Lawrence P. Schnapf | Nov 11, 2016 7:37:01 AM

Professor Robert Verchick shared this with Loyola Law students. Thank you for writing this as it reminds me of how far we have come from Silent Spring, and that there are opportunities to move forward. I'll take my work to the states, especially those with coast lines. Thank you for reminding me that progress anywhere is progress everywhere. We have 700+ days until the mid term elections where we can put people in office who want to address environmental issues on the federal level. The states, over the next two years, can be laboratories and models for what can work on a federal level. Thank you!

Posted by: andrea nocito | Nov 10, 2016 3:25:57 PM

This is great, Dave. Thank you.

Posted by: sarah | Nov 10, 2016 2:33:41 PM

Sage thoughts!

Posted by: Wil Burns | Nov 10, 2016 2:27:54 PM

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