We Have the Tools to Start on Plastic Pollution
Author
Cecilia Diedrich - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2
Cecilia Diedrich

Plastic has become ubiquitous in modern life. It’s increasingly apparent, however, that the convenience it provides comes at a higher price than most of us realize.

First developed in the early 1900s, plastic production has grown exponentially. A century later, the petroleum feedstock and varied chemical composition of derived plastics are proving to have detrimental impacts on the climate, the overall environment, and human health. Along with production increases, plastic pollution and its negative impacts have also grown exponentially. Plastics are readily seen on our streets and in our waterways, but they’ve also permeated the deepest parts of our oceans, the air above our tallest mountains, the food we eat, and our own blood and cells.

Taking stock of the environmental and human health crises that have resulted from our use and failure to adequately recycle and dispose of plastic, world governments have decided to act. Two years ago, at the resumed fifth session of the UN Environment Assembly, 175 nations agreed to develop an international legally binding instrument to end plastic pollution—negotiations on which are underway.

Both in relation to these talks and on the domestic front, governments at all levels in the United States have been increasing efforts to address the impacts of plastic. ELI has identified significant existing federal authorities to regulate plastic production and pollution. Having some of the most robust environmental laws in the world, and a wealth of resources, the United States is well-poised to tackle this problem.

For example, there are opportunities to regulate plastic particulate matter under the Clean Air Act, list microplastics and contaminants associated with plastics and plastic production for regulation under the Clean Water Act and Resource Conservation and Recovery Act, issue government procurement requirements, exercise pollution prevention and cleanup provisions under several statutes, and so much more.

That’s not to say that more directed and comprehensive legislation, executive orders, regulations, etc., won’t be necessary—they absolutely will be. But we have the tools to make a start of it. Now we need the momentum to use and build upon the tools at our disposal so future generations won’t be plagued by plastic pollution and its consequences.

As we look toward a global solution, it’s apparent that plastic use and pollution is closely linked with the greatest environmental challenges facing our world. In Reimagining Environmental and Natural Resources Law, ELI looks at climate change, water pollution, materials use and conservation, ecosystem degradation, and environmental justice—and offers solutions to these challenges. Tactics suggested to address these problems, such as building a circular economy, instituting a price on carbon emissions, and incorporating environmental rights into law, could go a long way in addressing plastic pollution and bettering our world overall.

New Approaches to Combatting Plastic Pollution.

Movers & Shakers
Author
ELI Staff - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2

Movers

Seth B. Arthur, a member of the Varnum LLP environmental, natural resources, and renewable energy team, has been elected partner. Based in Grand Rapids, Arthur is experienced in general environmental law, compliance matters, and enforcement.

Alf Brandt is the new associate director for justice solutions & innovation at the National Judicial College. He previously served as general counsel to California Assembly Speaker Anthony Rendon.

Kegan A. Brown, who represents clients in environmental and product liability litigation and regulatory matters, joins Lowenstein Sandler as a partner in the environmental law and litigation group in New York and New Jersey.

Energy and infrastructure lawyer Mona E. Dajani enters the New York office of Baker Botts LLP as a partner, where she also serves as global co-chair of the Energy, Infrastructure and Hydrogen teams and Co-chair of the firm’s Energy Sector.

Sempervirens Fund, California’s first land trust, hires Rachel Dann to serve as the organization’s first-ever director of government relations, where she will develop and advance the organization’s conservation agenda.

Stacey Sublett Halliday has joined Arnold & Porter as a partner in the environmental practice in Washington, DC, where she works on environmental justice issues and advises clients in the energy and technology sectors on environmental compliance, enforcement, and corporate social responsibility. She is a member of ELI’s Board.

The Southern Environmental Law Center names George Nolan as director of its Tennessee office. Nolan, who has practiced law in Nashville for more than 30 years, was a founding member of Leader, Bulso & Nolan PLC and a former member of Boult, Cummings, Conners & Berry PLC.

Engineering and environmental firm Fehr Graham hires Lynn Smith as an environmental project manager. Smith, who has expertise in environmental due diligence assessments, soil and waste management consultation, regulatory site investigations, and remediation, will be leading business development and brownfield redevelopment.

David Terry, an environmental enforcement attorney who served with the Texas Attorney General’s office and the Texas Commission on Environmental Quality, has joined Hunton Andrews Kurth LLP. Terry is a counsel at the firm and will focus on litigation and regulatory matters.

Jude Volek joins Latham & Watkins LLP’s Washington, DC, office as counsel in the White Collar Defense & Investigations Practice, where he will advise clients on sensitive internal investigations, government enforcement actions, and litigation involving antidiscrimination and civil rights issues.

Shakers

Radhika Fox, who served as EPA assistant administrator for water, departs the agency after three years. Fox is the first woman of color and the first person of Asian American descent to lead the Office of Water. She was the driving force in implementation of the water pillar of the Bipartisan Infrastructure Law—which includes $50 billion in funding for water projects, the single largest federal investment in the water sector. Under Fox’s leadership, EPA provided over $13 billion to states, territories, tribes, and local communities, supporting over 2,600 water infrastructure projects.

Former ELI Research Associate Emmett McKinney joins Tufts University as a visiting lecturer in the ExCollege, where he is teaching a course on technology and the built environment.

On February 12, ELI alum Sandeep Prasanna received the MPP Alumnus of the Year Award from the UCLA Luskin School of Public Affairs. Sandeep currently works as a senior advisor at Miller & Chevalier Chartered in Washington, DC.

See Colleagues' Job Changes and Honors Received.

EPA Local Government Advisory Committee to Tackle Key Issues
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2
Linda K. Breggin headshot

The charter of EPA’s Local Government Advisory Committee recognizes that states and localities are “ultimately responsible” for implementing many of the programs that ensure environmental quality for all Americans. LGAC was created to assist EPA in “ensuring that its regulations, policies, guidance, and technical assistance support and improve the capacity of local governments to implement and carry out” public health and environmental programs.

This year, 16 new appointees join 13 reappointed members who together represent 27 states and include a range of elected and appointed government officials. For example, the committee now consists of over 20 mayors (including those from Newark, Selma, San Antonio, and Nashua), numerous council members from local governments around the country, and several local government sustainability officers.

According to the National League of Cities’ Clarence Anthony, LGAC provides “an amazing opportunity for local officials to amplify their voices and be directly engaged in the policy development process at the federal level.” Similarly, newly appointed Montgomery, Maryland, council member Evan Glass emphasizes, “It is imperative that local leaders are engaged in the federal policymaking process as we work to address the climate emergency we are experiencing.”

This year, LGAC will focus on providing input on the proposed rule for national primary drinking water regulations for lead and copper. Next, LGAC workgroups will provide recommendations on EPA’s draft strategy for reducing plastic pollution. The agency’s efforts to develop a cumulative-impact framework is in the docket, and so are improvements to community-level communication and engagement on climate change issues. John Lucey, EPA deputy associate administrator for intergovernmental relations, anticipates some workgroups will make recommendations as early as May, while others may wait until the fall.

Over the years, LGAC has issued recommendations on a wide range of issues, including PFAS risk communications and drinking water regulations, food waste and loss, harmful algal blooms, and hydraulic fracturing.

Lucey explains that “EPA offices identify policies or programs that they believe would benefit from the input of local government leaders and draft specific charges.” LGAC leaders then review the charges and, in some cases, propose changes to ensure that each charge “captures an issue that resonates with local government leaders.”

EPA also appointed five new and 15 returning members to LGAC’s Small Communities Advisory Subcommittee. This panel seeks to “strengthen the capacity of small communities throughout America to improve and protect the health of their people and the environment in which they live.” The subcommittee’s objectives include changing how EPA develops regulations that impact small communities; ensuring that adequate resources are appropriated and allocated to small communities to account for their costs associated with providing environmental protection; and encouraging the provision of technical assistance to small communities.

Not all of LGAC’s recommendations are adopted by the agency, however. According to Lucey: “Parts of each recommendation document presented to EPA in the last three years have been incorporated” into agency policy. As an example, he points to the LGAC recommendation that EPA build partnerships between its regional offices and state municipal leagues. He highlights that at the LGAC meeting last October, “Region 5 leadership joined a lengthy discussion with representatives from the League of Wisconsin Municipalities and Wisconsin state government.”

In addition, with respect to the agency’s Climate Pollution Reduction Grants, LGAC recommended that EPA “create a comprehensive collection of new and existing resources available for applicants to swiftly develop action plans.” Lucey says that “in response, EPA developed a set of sample documents for states and municipalities to use when crafting their applications.”

Furthermore, he notes that LGAC “called for the use of new and existing EPA staff to manage and coordinate program activities, as well as provide regular technical assistance tailored to communities.” The grant program will create “Climate Innovation Teams” to “provide training and technical assistance to funding recipients as well as create opportunities for peer-to-peer technical assistance, peer collaboration and mentoring, and sharing of case studies, best practices, and lessons learned.”

EPA Local Government Advisory Committee to Tackle Key Issues.

Movers & Shakers
Author
ELI Staff - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
1

Movers

James Beers joins Troutman Pepper Hamilton Sanders as a partner with the environmental and natural resources practice in Washington, DC, where he will focus on environmental litigation, regulatory counseling, permitting, and remediation.

The Solid Waste Association of North America welcomes Amy Lestition Burke as its executive director and chief executive officer. Prior to joining SWANA, Amy served as vice president, industry solutions, for the Consumer Brands Association, working with partners on a variety of issues, including sustainability.

Stacy Ettinger, who spent nine years as a senior legal and policy adviser to Senator Chuck Schumer, joins the Solar Energy Industries Association as its senior vice president for supply chains and trade. Most recently, Stacy was a partner at K&L Gates LLP in Washington, DC.

Leslie Harroun joins Colorado State University as the new executive director of the Salazar Center for North American Conservation. She most recently served as executive in residence and senior fellow at The Democracy Collaborative.

Byron Marchant has taken on two new positions as president of the Global Public Sector at nssX and chairman of the board at Vets4Vets.

Lovinia Reynolds, formerly a research associate at ELI, has joined The Clean Fight as senior associate, where she is working in the company’s battery storage practice area to build connections between clean tech and community organizations in the New York area.

Shailesh Sahay joined the Washington, DC, office of Baker Botts as a partner in the firm’s environmental, safety and incident response practice.

Shakers

Former New Zealand Prime Minister Jacinda Ardern became Conservation International’s sixth Arnhold distinguished fellow, where she will serve a two-year term to advocate internationally for climate action and better treatment of the environment.

Valérie Courtois, a leader in the movement for Indigenous-led conservation and land stewardship, received Stanford University’s highest environmental prize, the Bright Award for Environmental Sustainability.

Paul Hagen, a Principal with Beveridge & Diamond in Washington, DC, was recently elected to serve as councilor with Manomet, a nonprofit leader in bird research and conservation.

Kevin Murray, a partner at Holland & Hart’s Salt Lake City office, became the president of the American College of Environmental Lawyers.

Memoriam

Ridgway M. Hall Jr. served as EPA associate general counsel for water, and was also a founding partner of Crowell & Moring, where he started the firm’s environmental practice group. More recently, Ridge served as vice chair of the Chesapeake Legal Alliance, a network of lawyers who handle cases on a pro bono basis relating to the protection and restoration of the Chesapeake Bay, its watershed, and its natural resources. Ridge was an active member of ELI throughout his career. In addition to serving on the board for two terms, Ridge was a member of ELI’s Leadership Council, and he wrote several cover articles for the Forum.

William H. Hyatt Jr. was a nationally renowned attorney who handled highly complex and major environmental cases across the country. Recognized for his keen intellect and ability to be a thoughtful leader, Bill was regularly selected by his peers to serve as common counsel in numerous Superfund and natural resource damage cases. At the time of his retirement, Bill was a partner at K&L Gates, where he concentrated on environmental law and related litigation, particularly Superfund matters. Bill also served on ELI’s Board for two terms.

See Colleagues' Job Changes And Honors Received.

Founding the Forum
Author
Bud Ward - Editor, 1982-86
Editor, 1982-86
Current Issue
Issue
1
Founding the Forum - Environmental Forum January-February 2024

In this issue, we celebrate the 40 complete volumes of the Environmental Forum. Few magazines make it to their fifth decade, which we begin with this issue. It’s an odd anniversary, because the magazine was founded 42 years ago, but there was a period when the publication was discontinued and then arose Phoenix-like two years later into the incarnation you are holding in your hands today.

“People are policy.” Those words figured prominently in the founding of the Environmental Law Institute’s policy journal in 1982. My re-immersion into the content of those 48 original monthly issues in preparation for this article proved to be not only fun, but also encouraging and enlightening. Our small editorial staff—me and editorial assistant Jan O’Brien—had a good time, with lots of fun, on that job. We were serious about the task, while not taking ourselves too seriously. There is at least anecdotal evidence that our readers had fun with the publication too.

I recall having been asked in the early 1980s by an out-of-town corporate environmental official to name which Republican staffers of a relatively obscure House subcommittee might be most receptive to hearing his pitch. Better he might ask his company’s own D.C. policy staff, I thought at the time, or at least the environment staffer of whichever trade association represented his industry.

What I didn’t realize was that the Forum had a reputation, and top people in the various sectors composing the environmental community came to us willingly. For the big dogs in the Washington environmental policy community—EPA administrators, deputy and assistant administrators, chairs and key minority members and staff of congressional committees and subcommittees, top industry and NGO lobbyists, policy gurus, and journalists covering the beat—we used our regular Profile department. For an upstart, we managed to hook some pretty big fish.

We also capitalized on a growing inside-the-Beltway reputation that we “knew everybody.” True or not, or simply exaggerated, we did nothing to dispel that view. For those environmental movers and shakers not quite up to the Profile standing, we regularly carried a People to Know feature—a headshot and brief bio along with, when possible, a wrap-up along the lines of, “Serve to her backhand.” This department cemented the impression of our casual relationships with the leaders in the profession.

There was more of this people emphasis: Most monthly issues concluded with a Who’s Who…and Where? listing: Joe Blow or Susie Somebody had left their post as special assistant at XYZ and now was holding forth at ABC. We made no pretense of actually knowing all those included in this quick-hit feature, but it helped secure the impression among our readers that we had a far-reaching network. The Forum continues this tradition today, with the current iteration labeled Movers & Shakers—see page 61.

There were other standing departments too. A popular conversation item at many a D.C. environmental dinner party or other get-together was our Horse Race feature (see the previous page). Fancy it was not, but rather a hand-drawn image of thoroughbreds representing half-a-dozen major pollution control bills and their prospects, or lack of same, for final enactment in that year’s legislative calendar. (Interesting to think back to a time when multiple environmental bills were getting Capitol Hill’s attention, a big change from nowadays.) Drawn up only in the final moments before each issue’s go-to-press deadline, this feature took on a life of its own, including my often being introduced as “the guy who does the horse race.”

We did not take ourselves too seriously with these sometimes tenth-of-a-percentage-point increases or decreases month-to-month: We carried upside-down italicized wording at the bottom of these features, as follows:

You did it! Anyone who turns the page upside down to read this is MUCH too serious about this feature. Don't do it again!

Another fun standing department was a Memo of the Month, usually near the end of each issue. These had to stand on their own: If they required elaboration or explanation, they didn’t make the cut. A somewhat sobering lesson from some of these cited features is that the less intellectual time committed to a particular article, the better it did in attracting eyeballs, as reporters would say today. It’s a humbling lesson many a journalist and editor must balance in their own endeavors, when pressed to increase traffic to their site.

Which is not to dismiss the value and importance to the magazine of its more substantive articles. We presented a feature labeled Point-Counterpoint, addressing a wide range of timely and often controversial environmental issues. We included face-to-face roundtable discussions with top-notch and diverse participants expressing widely opposing perspectives on a broad range of issues. The Forum provided in-depth analyses of regulatory developments, and of especially important court decisions. Finally, we provided commentaries on various interests’ communications and lobbying messages. In my recent review of those first four years, I’m struck that our tiny upstart magazine managed to corral such big names to participate in these roundtables and other features.

But I am getting ahead of myself, ignoring how the Forum came to be in the first place—and how fortunate it was to have been undertaken by ELI, with the full hands-off institutional support of then President J. William (Bill) Futrell, a one-time Sierra Club president and civil rights attorney whose support for the Forum, starting from day one, was to prove critical.

The fact is that prior to launching the magazine as fulltime-ELI employees in early 1982, Jan and I had been among some three-dozen environmental professionals who were thrown out onto the Washington streets suffering under then EPA Administrator Anne M. Gorsuch’s “doing more with less” theme. Yes, that meant fewer and far less experienced and professional staffing. We all had been staff on the congressionally chartered Clean Air Act National Commission on Air Quality, assuming we would be hot prospects for many environmental posts. Not so in President Reagan’s early first-term in the Nation’s Capital.

I personally had cut my environmental reporting teeth as the top editor on the weekly environmental “information service” Environment Reporter, published by the Bureau of National Affairs, back then an employee-owned specialized service eventually subsumed as part of the Bloomberg news empire. We at BNA, perhaps not surprisingly but not entirely with keen-eyed impartiality, at that time somewhat looked down on our erstwhile news and analysis competitors, including those at ELI.

After working more than two years as an assistant director with NCAQ, followed by a few months of freelance writing and college lecturing and teaching, I met with Futrell so I could describe my goal of returning to journalism with an environmental policy, politics, law, and people periodical. To my undying delight, Futrell decided to give it a try.

So we launched the magazine. It was the early years of the personal computer revolution. Then as now, the Forum was in the vanguard. We used my home IBM PC in the absence of any ELI computers, and we relied on MS-DOS, the arcane operating system, and two floppy disk drives. Jan regularly worked from my home office. She entered copy electronically and learned to code it for direct feed into typesetting equipment.

Remember, this was not the robust era of environmental full-employment opportunities. Rather, the most attention-getting issue, Superfund hazardous waste cleanups, was on the downturn, and climate change wasn’t even a glimmer in the eye of environmental policymakers or of most in the advocacy community. Job vacancies went unfilled, environmental careers were going bust.

Not then, or perhaps ever since, was ELI a money bag of excess revenues and vast career potential. But Futrell had the vision, and the internal administrative chutzpah, to launch this venture in the face of what clearly were apprehensions among some staff and also some of the institute’s more revenue-conscious board members. As ELI president at that point for only about two years, Futrell was eager to better service the institute’s would-be members by going beyond the purely lawyerly emphasis of the Environmental Law Reporter. His hands-off approach, leaving the editorial side of the journal in my hands, struck me as ideal.

Which, I emphasize, did not consist of wholly original ideas. I think our monthly News Notes and News Break features were inspired by the first-page, column-eight “News You Can Use” feature of the Wall Street Journal. Our informal, conversational style was inspired at least in part by the two-year-old revolutionary news delivery tone and culture being pioneered at that time by National Public Radio’s All Things Considered. Our people and personalities features no doubt sought to mimic—for better or worse—the tone and tenor of a People magazine, perhaps something akin, shudder the thought, to today’s Entertainment Tonight.

No threat to large-circulation periodicals, nor for that matter even to the few specialized environmental, natural resources, and pollution control publications tilling those fields in the early 1980s, the Forum from the start had never sought to make or break news. That just wasn’t our gig, but rather the domain of the likes of Inside EPA and Air/Water Pollution Report, a publication of Business Publishers, Inc.

Rather, the Forum’s shtick was to help readers make sense of the abundant and complex environmental breaking news that others provided. Our thing was to cover the Why, and not the What, of environmental news: Why did it happen as it did? Who were these faceless bureaucrats, lobbyists, policy wonks, “liaisers” and facilitators and conveners whose faces, let alone their names, were generally unknown?

So the Forum from day one sought not to be the first to tell its audience that such and such had happened. And we didn’t seek to tell them what they should think, but rather what they should think about. Then, as now, the magazine sought not to report the news, but rather to help others better understand what it all meant, how it came to be, and what it meant to them going forward.

These four decades (and various journalism jobs) later, I still think fondly of, and with unending gratefulness for, those years at the birthing of the Forum. I still tingle, several years after the magazine temporarily went dark after a Superfund financing controversy stalled overhead funding for ELI, at the memory of crossing where K Street and Connecticut Avenue intersect. Midway, I was suddenly approached by a pedestrian who reached out to me and said, “Didn’t you used to be Bud Ward, who did the Horse Race feature?” Made my day, and I relish that memory all these years later.

ELI, it ends up, was the best—and very probably the only—organization culturally suited to sponsoring the Forum as I had been envisioning it. We collectively recognized the need for nonpartisanship in pursuit of environmental protection. That suited not only Futrell’s but also all of ELI’s goal of being inclusive and diverse in its appeals to pragmatic activists as well as to practical conservatives.

My heart-felt appreciation and thanks to Bill Futrell, and to the dedicated and highly skilled professional staff and volunteer leaders and so many authors, and for the true joys and satisfactions of having allowed Jan and me to shepherd the Environmental Forum in its formative years—and, we want to believe, helping to lay a strong foundation for all the magazine has gone on to accomplish.

Bud Ward was editor of the Forum from 1982-86. Carole Parker was editor from 1988-90. Stephen R. Dujack has been editor since 1990.

40th ANNIVERSARY The magazine’s emphasis today on people and policy is at the core of its original mission, according to the magazine’s first editor in this reminiscence on the magazine’s early years during a period of intense lawmaking, regulation, and litigation.

Still Advancing Environmental Protection at 40
Author
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
1

Starting with this issue, the Environmental Forum has a change: “The,” capitalized and in italics, is no longer part of our name—too 20th century, to be frank. So you’ll see it as above from now on, on our cover and in our page footers and other places. This change comes as a result of celebrating our 40th anniversary with this issue, a time for reflection as to the foundational purposes behind this publication and to honor the roster of leading professionals who have made it possible. There are on average 25 individuals of highly varying views who contribute to each issue.

Few magazines live into their fifth decade, so the very fact that you are holding this issue in your hands is remarkable from a publishing point of view. Over that time, five ELI presidents have been listed on our masthead as publisher, an arrangement that is deliberately hands-off. They have allowed me to exercise my judgment as a journalist and editorial professional, with much advice from our editorial board and other experts, as to what content will benefit an environmental professional.

That arrangement can be uncomfortable at times, because dialogue among the profession is part of our mission—and opinions can disagree sharply. But the name was not chosen accidentally at the birth of the magazine. ELI saw in its membership publication a chance to advance its own mission, which in part is to serve as a “convening forum” for stakeholders.

This function, which results in seeing a variety of viewpoints, can be upsetting, given the multiplicity of conflicting and overlapping interests. But it is necessary in getting anything done in the field of environmental protection, where so many have something at stake, and interests are often in competition.

We take advantage of this tension and in fact encourage its expression throughout the magazine, in the hope of moving the ball forward. In our bimonthly Debates and via the Sidebar articles that accompany our major features, we create dialogue on the crucial issues facing environmental protection.

On average, there are 10 such single-page viewpoint articles in every issue, along with the four big viewpoint articles composing our feature well. In addition, we have eight expert columnists and reviewers at work, covering a range of beats across the profession. That’s a lot of opinion, analysis, and debate—the big three attributes we are proudest of, flagged in the logo on every cover.

Speaking of that banner, “Advancing environmental protection” has always been central to ELI’s mission and is the main component of the Forum’s mission as well—the convening function supports the advancing function, which is our core purpose. Speaking as a journalist, I’m very comfortable with that task. Nothing can be more rewarding to a professional writer and editor than helping to save the planet. And to be able to speak directly to you, the profession engaged in that work, in this bimonthly column. It’s been a privilege.

This is the 200th iteration of Notice & Comment over the more than 33 years since I’ve been editor. A lot has changed in that third of a century. For one thing, Congress has stopped passing major environmental legislation. Indeed, the 1990 amendments to the Clean Air Act, signed in my first year at the Forum, constituted the last major reauthorization till the amendments to the Toxic Substances Control Act were signed in 2016. And that law passed only because stakeholders were unanimous in condemning its predecessor—so it wasn’t an advance as much as calling off a retreat.

As Bud Ward describes in his memoir on the founding of the magazine elsewhere in this issue, the Forum became famous in the early 1980s by depicting environmental legislation in progress as a horse race involving a roster of half a dozen pollution bills vying for passage. The sense is one of speed and progress (although some of these graphics showed one horse representing a bill facing challenges as running the wrong way). We reproduce such a race from the April 1985 issue on page 49.

The notion of Congress as a breeding ground for important change in serving society’s needs no longer permeates our pages. Today if there were to be a derby graphic, it would have to depict the progress of rules fleshing out those ancient foundational statutes—not just in the agencies but in the courts as well.

For the executive branch, rulemaking today is less a horse race and more of a steeplechase, with hurdles and water hazards, requiring stamina and the ability to master a number of challenges. Adding in the role of the judiciary, it’s also like figure skating, with its required skill elements and panel of subjective judges.

Whatever the metaphor, covering that competition in detail is not the Forum’s task. See ELR for that. Rather, the publication does what only a policy magazine can do—provide a rich and varied buffet on the issues of today and tomorrow. We’ve been doing it for 40 years now. Thanks for your support!

Notice & Comment is the editor’s column and represents his views.

Xcel Energy . . . is looking to add hundreds more turbines in Minnesota to help replace its last operating coal plant in the state. The wind capacity, which could be paired with solar and battery storage, would be enough to power almost half a million homes. . . . [Coal] made up about two-thirds of the utility’s power generation two decades ago.
EnergyWire

$150,000 Fine for Improper Disposal of Orbital Space Debris

The U.S. government is cracking down on potentially hazardous trash disposal—in space. For the first time, the Federal Communications Commission has issued a penalty for space junk—what it called a “breakthrough settlement” that officials hope will showcase the gravity of a worsening situation: orbital debris.

The Dish Network, a U.S. satellite television company, was ordered to pay a fine of $150,000 after an investigation by the agency found that it disposed of one of its satellites at an orbit “well below the elevation required by the terms of its license.” Disposing equipment at a lower altitude potentially poses a threat, the FCC said. . . .

“As satellite operations become more prevalent and the space economy accelerates, we must be certain that operators comply with their commitments,” FCC Enforcement Bureau Chief Loyaan A. Egal said in a statement . . . adding that the fine makes it “very clear” that the government agency has “strong enforcement authority and capability to enforce its vitally important space debris rules.”

Washington Post

Hot Neighborhoods

In our September/October cover story, Barry E. Hill reported on a 2022 EPA-financed study demonstrating that the residents in formerly “redlined” communities were discriminated against based on race by federal policy concerning the sale, rental, and financing of housing, until this practice was forbidden, at least in theory, by the Fair Housing Act of 1968. Moreover, the study concluded that these communities were and still are disproportionately home to persistent environmental injustices.

Indeed, improvements have been slow in many of these communities. Now, as reported by E&E News, regulators have issued a rule that “includes a provision that explicitly incentivizes banks to help ‘redlined’ communities weather climate-fueled disasters.”

The new rule “potentially spur[s] billions of dollars in investment in everything from flood control systems to sea walls.” At the same time, the news service reports, “New guidance . . . sets regulatory expectations for how large banks should measure and address their exposure to climate-related financial risk.” The two policies obviously combine in potential changes in affected neighborhoods.

Unfortunately, many poor households cannot afford air conditioning. Further, even over half a century after redlining ended as a legal matter, today these communities still often host unwelcome industry and are riven by automobile traffic, and usually lack the same access to nature as do nearby neighborhoods with largely white populations. Worse, “extreme heat exposure is highly unequal and severely impacts the urban poor,” according to an article in the Proceedings of the National Academy of Sciences USA.

Indeed, “extreme heat is the number-one weather-related cause of death in the U.S.,” according to Terri Adams-Fuller, interim director of the National Oceanic and Atmospheric Administration’s Cooperative Science Center for Atmospheric Sciences and Meteorology at Howard University. Writing in Scientific American, she says that heat “kills more people most years than hurricanes, floods, and tornadoes combined.” Adams-Fuller presents data that a heat wave in Chicago in 1995 produced 700 excess deaths when temperatures went above 100 degrees.

A bar chart accompanying the article breaks down over 10,000 U.S. heat-related deaths, covering several years, by several factors, revealing some interesting data. For instance, deaths for the white population were at two per million. The figure for the Black population was 50 percent higher, at three per million.

Adams-Fuller’s data also show a 50 percent disparity in heat deaths determined by level of urbanization. Heat mortality in “large central metro” areas is three per million, but two per million or lower when cities are smaller, or lower still for “large fringe metro,” which I take to mean big-city suburbs.

According to Adams-Fuller, “Research shows that compared with their thinking about dramatic events such as storm surges and wildfires, people tend to feel more uncertain about what to do under the threat of extreme heat and don’t perceive as much personal risk.” Her article opens with the story of Esteban Chavez Jr., a UPS driver in Pasadena who died of heat stroke and heat exhaustion at the end of a delivery day that was in the 90s.

She also presents a map showing the “Overlap Between Heat and Historically Redlined Neighborhoods.” It is the result of citizen scientists in Baltimore taking temperature readings across the city on a hot summer day. The map shows how some of the hot spots in the city correspond to zones that were redlined in a 1937 federal loan program.

The Forum Celebrates 40 Years of Advancing Environmental Protection.

Time for Private Practitioners to Recognize That ESG Is Everywhere
Author
Brian D. Israel - Arnold & Porter
Arnold & Porter
Current Issue
Issue
1
Brian D. Israel

When I helped launch Arnold and Porter’s cross-practice ESG working group several years ago, I was asked which parts of the firm would be involved. The real question is the reverse: is there a single practice area that is not impacted by the environment-social-governance nexus?

At the highest level, ESG is about a corporation’s responsibilities to its stakeholders in addition to its responsibility to its shareholders—including responsibilities to employees, the environment, and the community. Some call this the merging of stakeholder values with shareholder value. And since “stakeholder values” can be controversial, the idea of ESG itself can be controversial. To some, ESG is about creating long-term value for the corporate entity including investors. To others, by allegedly placing “values” over “value” ESG violates the principle behind the original grant of legal status to the corporation.

The reality though is that ESG is nothing new. Companies have always taken community values into account. During World War II, for instance, expenditures for advertisements increased substantially, with many ads heralding companies’ efforts to support the war effort. From cars to chemicals to cigarettes, American businesses during World War II sought to identify their brand with the larger communal needs of the time, even at the expense of short-term profits.

In this way, today’s focus on ESG is merely a current manifestation of a phenomenon that has existed since the beginning of the corporate form. ESG is about how companies try to address the social and ethical issues of the day, whether it be sustainability, diversity and inclusion, employee well-being, or other important topics. And since many of these underlying matters are themselves controversial, how a company addresses these issues may also give rise to dispute.

Notwithstanding the current ESG brouhaha, the jurisprudence is clear. Courts have consistently backed management’s ability to take into account community concerns and values, provided that decisions are framed in terms of the long-term benefits of the corporation.

One colorful example. In the 1960s, Philip Wrigley—the majority shareholder of the Chicago Cubs—resisted calls to install lights at Wrigley Field. By this point, every other major league baseball park in the country had artificial lights. Wrigley argued that night games, while profitable, would upset the neighbors, adversely impact the community, and harm the long-term value of the team.

When a minority shareholder sued Wrigley, the complaint argued that the company’s sole responsibility was to increase shareholder value, not defer to the wishes of certain stakeholders. However, the court agreed with Wrigley, saying, “We do not mean to say that we have decided that the decision of the directors was a correct one. . . . We are merely saying that the decision is one properly before directors and the motives alleged in the amended complaint showed no fraud, illegality, or conflict of interest.”

Turning to private practice today. Whether setting up an investment fund, conducting due diligence for a major transaction, advising companies on government disclosures, or responding to shareholder initiatives, law firm lawyers need to understand ESG issues. Working with 45 co-authors, I recently co-edited a book, published by the ABA, called The Professional’s Guide to the Law and Practice of ESG. It covers everything from management systems, to net-zero climate goals, to environmental justice, to antitrust. This book has two dozen chapters about how lawyers, from every field of law, are getting involved. And we barely scratched the surface.

But one issue worth highlighting—particularly for environmental lawyers—relates to ESG and litigation. Increasingly, companies are being sued not just about the accuracy of their marketing claims, but also their congruency. What does that mean? Airline companies, fashion companies, energy companies, etc., are being sued by NGOs, consumers, and others alleging that their sustainability and carbon-neutrality statements are inconsistent with their underlying business. In other words, a claim could be completely accurate and verifiable, but allegedly lack congruency with the overall enterprise. Doing the right thing in one area, arguably, does not allow a company to market itself as sustainable, implicitly or explicitly, these claimants assert.

Environmental lawyers everywhere are responding to increased climate and greenhouse gas disclosure requirements. But ESG lawyering will need to go beyond disclosure. For example, preventing, and defending against, ESG litigation will require a whole new way of assisting companies, merging a broad understanding of ESG topics, expertise about the jurisprudence of corporate governance and communications, and an in-depth understanding of the client’s business.

Time for Private Practitioners to Recognize That ESG Is Everywhere.

Speedy Processes Needed to Meet 2035 Carbon Goal
Author
Ken Berlin - Atlantic Council
Atlantic Council
Current Issue
Issue
6
Parent Article
Ken Berlin

The U.S. power grid needs to be upgraded and expanded to meet the country’s goal of 100 percent clean electricity by 2035. Currently, the aging transmission system and the associated planning and permitting processes cannot support the transition to clean energy. Power lines are 40 years old on average. More than a quarter of projects were built over 50 years ago and 70 percent of lines are more than 25 years old.

One study estimates that high-voltage transmission capacity will need to expand by about 60 percent by 2030 and triple by 2050 to meet electrification needs and demand growth. The total cost is estimated to be $330 billion through 2030 and $2.2 trillion through 2050. The permitting and planning process for transmission infrastructure is decentralized and complex, which leads to excessively long lead times that slow the pace of transmission deployment—many took longer from initiation to construction than the time remaining until 2035, when the grid needs to be carbon-free.

Energy permitting and planning reform is well underway through measures passed across the government but has so far failed to address transmission infrastructure directly. In May, Congress passed the debt ceiling bill, which included permitting provisions to shorten the time-line to conduct National Environmental Policy Act reviews to two years, one year, and six months for different energy projects. In July, the Federal Energy Regulatory Commission passed a new rule to accelerate the interconnection process for the over 2,000 gigawatts of renewable energy waiting in the queue. FERC is also drafting a new rule on transmission planning that will address cost allocation and long-term planning within regions. The Department of Energy published a draft National Transmission Needs Study and will publish a National Transmission Planning Study later this year or early next year. The progress so far is significant and commendable, but more must be done to address transmission infrastructure specifically.

Perhaps the most immediate solution is for FERC and the DOE to use an existing, never fully implemented authority under Section 216 of the Federal Power Act. Under the act, DOE has the authority to designate National Interest Electric Transmission Corridors where the agency has identified present or expected constraints or congestion on transmission capacity. Once a NIETC is established, FERC can use its existing authority to approve a competitively sourced transmission project or projects within the NIETC, providing significant benefits to the communities in the states where the project is built.

DOE and FERC first used the NIETC designation in 2007, but two courts vacated the rules and NIETCs mainly on environmental, and not statutory, grounds. DOE has since released a Notice of Intent in May that would establish an applicant-driven, route-specific process. FERC released a proposed rulemaking for siting lines within NIETCs in December of last year. Now, DOE and FERC should work to operationalize the NIETC framework to deliver high-value interregional transmission lines at the pace necessary to meet clean electricity goals in 12 years.

Establishing NIETCs would have a major impact on the buildout of transmission infrastructure by facilitating the construction of interregional transmission lines. The DOE national transmission needs study affirmed that interregional transmission lines are the highest-value projects, which would bridge the three U.S. interconnections and provide additional reliability to the grid during increasingly frequent extreme weather events. DOE estimates suggest that interregional transfer capacity will need to expand sevenfold on average by 2035 and more by 2040. Transmission investments can lower electricity bills by expanding the system to lower-cost generators and reducing the likelihood of outages. One simulation showed that additional transmission could save $3 billion per year in 2035 and $4 billion per year in 2040.

With only twelve years remaining for the United States to meet its stated clean energy goal and transmission projects taking at least five to ten years or more to site, permit, and construct, immediate solutions like the NIETC process are needed.

While legislation would be another effective tool to accelerate infrastructure development, permitting discussions in Congress have stalled. Nevertheless, legislation that mandates minimum interregional transfer capacity, gives FERC exclusive jurisdiction over interstate transmission, and provides direction on cost allocation and eminent domain procedures would significantly accelerate transmission deployment, including within the NIETC process. Passing this type of legislation may not be possible now but will be reassessed based on the results of the 2024 election.

Ken Berlin is a senior fellow and director of the Financing and Achieving Cost Competitive Climate Solutions project at the Atlantic Council Global Energy Center. He is the former CEO of the Climate Reality project. He was aided in writing this article by Frank Willey, a project assistant at the center.

No Transition Without Transmission
Author
Rob Gramlich - Grid Strategies LLC
Grid Strategies LLC
Current Issue
Issue
6
Parent Article
Rob Gramlich

Transmission expansion may be the most important opportunity for decarbonization in the United States and most other countries. Renewable energy replacing fossil power generation is among the least-cost, fastest, and most scalable opportunities. But large-scale renewable deployment can only happen with significant transmission expansion. As it stands, most needed renewable energy generators are stuck in five-year-long interconnection queues, and those that are on line and operating are subject to frequent curtailment when grid capacity prevents them from delivering to electricity customers.

You don’t need to support speedy action on climate to support large-scale expansion of the transmission system. Reliability and resilience also require a major grid upgrade. In many recent instances of polar vortices and heat domes, it has been the movement of large volumes of power, often over 10 gigawatts, from one region to the next that has kept the lights on. Power scarcity happens in individual regions but there is typically plenty of available power in neighboring regions that can be delivered, if and only if we have sufficient inter-regional transmission capacity. Power from the Mid-Atlantic helped keep the lights on in the Dakotas during Winter Storm Uri in 2021, to give one example, and that was simply not possible in Texas because the state’s import capacity was too limited, causing tragic deaths and economic harm.

So how do we expand the grid? We need to address the barriers, which are the “3Ps”: planning, permitting, and paying.

Planning: The first step is to plan for the future resource mix and determine an efficient, reliable, and environmentally responsible set of lines and upgrades. Unfortunately, in a recent report card of regional planning around the country by Grid Strategies for Americans for a Clean Energy Grid, most regions received a C grade or worse.

Congress and the Federal Energy Regulatory Commission can rectify this poor performance. FERC’s transmission planning and cost allocation rule has the potential to be the most important energy policy in the country for this reason. Independent transmission developers and utilities need not wait; they can identify valuable routes and find viable rights-of-way right now, and then bring proposals into planning, and permitting, and cost allocation processes.

Planning is also the way to balance land and wildlife considerations. As Marshall Johnson, chief conservation officer of the Audubon Society, said in its 2023 report “Birds and Transmission: Building the Grid Birds Need”: “Not only does Audubon understand the urgency of making the critical investments that will prepare the transmission grid to handle a clean energy future, we also understand how important it is to do it in the right way. How and where new transmission is constructed will have a tremendous impact on birds and our communities.” That requires planning with key stakeholders involved, including wildlife protection organizations.

Permitting: Recently 10 major lines moved from the ready-to-go category into construction. This is important progress. But many of these lines were over a decade in the making. We simply do not have time for lines to take over ten years. The Department of Energy’s lead agency function, along with its public-private partnership, Transmission Facilitation Program, and National Interest Electric Transmission Corridor authority can help move project approvals faster while preserving environmental standards. Greater authority for FERC will help as well.

Paying: While there is no shortage of capital to invest in transmission, the structure of the electric industry was not designed for planning or recovering costs from large interstate-highway-type lines. Transmission is a classic public good, in which the beneficiaries are so many and so dispersed that it is in no individual’s economic self-interest to help fund it. We have two ways in a modern democracy to pay for public goods: taxpayer funding (e.g., grants and tax credits), or regulatory cost allocation, where costs are assigned to appropriate electricity ratepayers. Either one could do the job.

A transmission tax credit and FERC cost allocation are both being considered by Congress, and FERC’s regional transmission planning proposed rule includes cost allocation. FERC can and should do the same for interregional transmission. Cost allocation by FERC follows a “beneficiary pays” principle under various court decisions interpreting the Federal Power Act to ensure a fair allocation among users of the system. Whether the builder of transmission is a utility, independent developer, or combinations of different types of companies, taxpayer or ratepayer funding will be required.

There is no better time than now. The best time to start working through the planning, permitting, and paying challenges would have been ten years ago. But it didn’t happen, and almost no long-haul large capacity transmission was built over the last decade. The next best time is right now.

Rob Gramlich is the founder and president of Grid Strategies LLC, a Washington, DC-based consulting firm focused on electricity transmission and power markets to support low-cost decarbonization.