Ambitious Agenda Versus Deep Divides
Author
Lynn Scarlett - The Nature Conservancy
The Nature Conservancy
Current Issue
January-February 2021
Issue
1
Parent Article
Can Biden Get the Job Done?

President Trump heralded a theme of energy dominance, with a subtext to “bring back coal.” Five months later, he withdrew the United States from the Paris Agreement. He questioned climate science; his agency leaders blotted out references to climate change. And, by October 2020, he had reversed, revised and unraveled well over 120 environmental policies. Many of these revisions unfolded at the Department of the Interior, manager of 20 percent of the nation’s lands.

Despite a few bright spots — for example, signing the Great American Outdoors Act, the administration took the environmental narrative back decades to a framing that pitched economy versus the environment and saw the “deep state” of federal agencies as a problem. The contrast with Joe Biden’s agenda could hardly be greater. Biden would reinstate U.S. leadership on climate and conservation—rejoining the Paris accord, reversing executive orders curtailing climate action, revising pollution regulations, seeking legislation on clean energy, and protecting public lands.

Swinging the pendulum toward a clean energy future will not be easy. No Blue Wave of new Democrats accompanied Biden’s election. Thus, the new president must chart a course toward a cleaner, greener future amid deep political divides.

His first speech set forth his pledge not to divide, but “to unify.” This was visionary, while the hard work is how to realize such unity, especially in the often-fraught realms of natural resources, public lands management, and climate.

For his environmental agenda, four ingredients will be important: public sentiment beyond the beltway; the people who lead his agency teams; his narrative; and how he manages key relationships.

Public sentiments on the environment are not what they seem in national-level campaign polarities. Outside the Beltway, 15 out of 15 conservation ballot measures passed in widely diverse states, bringing $2.2 billion with overwhelming support. Hundreds of companies have set ambitious goals to address climate change. Many, including the forestry and agricultural sectors, see economic opportunity in that pursuit.

With the right people and the right narrative, Biden can tap that well of unity for conservation and climate action. The “people signs” look promising. His transition teams are filled with people of diverse backgrounds, including a sprinkling of Republicans and many people with deep policy knowledge and experience at all levels of government. This team profile sets the stage for hammering out policies that are both feasible and sensitive to tensions and trade-offs.

But what about the narrative? Finding some points of unity will require a 21st century story affirming that environmental and economic benefits interconnect. Clean energy brings job opportunities. Investing in natural infrastructure — coastal reef restoration, floodplain restoration, tree canopy in cities, and more — helps protect communities from floods, manage stormwater, reduce extreme heat, and often does so at less cost than traditional sea walls, pipes, and concrete. Better, cheaper, greener, smarter investments that bring jobs constitute a motivating narrative.

The ultimate test for unity, though, resides in relationships. Biden has those relationships — with Republican and Democrat senators, with governors, with former cabinet officials. In this era of top-down congressional governing, finding common ground with Senator Mitch McConnell (R-KY) is essential. Republican governors are also key players — during Obama’s tenure, it was their lawsuits that slowed ambitious clean energy action — and they will be important on public lands issues, as well.

Focusing on solutions to shared problems — like risks from extreme fires and storms and COVID economic recovery — and on opportunities for jobs and innovation linked to investing in nature and clean energy provides a starting place. The rest will depend on complicated dynamics that juxtapose the need for everyone to get things done versus partisan positioning and the tensions between ambitious outcomes and feasible politics.

Louisiana's Approach Government-Wide
Author
Charles Sutcliffe - Louisiana Office of the Governor
Louisiana Office of the Governor
Current Issue
January-February 2021
Issue
1
Parent Article
Preparing for Climate Disasters

In addition to the pandemic, Louisiana has been tragically impacted by five named storms between May and November. These multiple disasters have highlighted, yet again, how the underlying strengths or weaknesses of the economic, social, and environmental conditions of the communities they strike play a large role in how these disasters have unfolded.

While there is universal agreement that pre-disaster planning and mitigation activities are preferred to reactionary, post-disaster interventions, we must do more than simply adjust our timing. The methods by which we design and direct resilience investments must also be calibrated to meet the complexity and interconnectedness of today’s challenges while keeping an eye on tomorrow’s.

This approach requires new tools and new ways of working together to manage the multifaceted challenges of climate adaptation.

Louisiana’s Comprehensive Master Plan for a Sustainable Coast, currently in its third iteration, has been the gold standard for comprehensively addressing our state’s increasing risk from coastal flooding and land loss.

Fundamentally based in science and informed by public input, the master plan process considers multiple analytical challenges over a 50-year time horizon. The plan produces a final list of projects eligible for state funding that are deemed the most effective at reducing damages from flooding and building or maintaining land.

Thanks to the coastal master plan, Louisiana makes strategic investments before disaster strikes, but it also allows the state to put new funding to good use when the inevitable does happen.

Guided by the coastal master plan, Louisiana has made investments that have improved 336 miles of levee and benefitted more than 75 square miles of coastal habitat over the last 15 years.

In 50 years, however, an investment of $50 billion is still likely to result in the loss of an additional 2,900 square miles of coast due to sea-level rise and other factors. This level of change will mean the state must not only continue to prepare for the direct impacts of land loss and flooding, but also adapt to longer-term, slower-moving challenges that will indirectly result from our changing coast.

For these reasons, Louisiana is beginning to evolve and broaden its approach to coastal adaptation and resilience-building so that the solutions can be as comprehensive as the problem. Rather than continuing to rely on a single agency to address the coastal crisis, we are taking steps to move to an all-of-government approach.

By defining the problem in its broadest terms and including more state agencies in the development of solutions, Louisiana will bring more tools and different types of expertise to the task of planning for and mitigating the economic and social implications of our degrading coastline. We can begin leveraging relevant state programs to meet common goals for our state — like preserving our cultural heritage and our working coast.

We can begin aligning policies so that post-disaster interventions incorporate more forward-looking activities and do so more uniformly. And we can begin the necessary and sometimes challenging task of taking bold new actions that will produce meaningful results for our environment, our economy, and our communities.

Pre-disaster investment is critical, but so is recognizing that the best way to improve the resilience of our communities is to craft comprehensive and inclusive solutions that are able to address the complex problems we face.

There will never be a single funding program large enough to meet all of the needs of states and communities at risk from climate change. But by collaborating across government around a common challenge with a common vision for the future, we can maximize the benefits of the funding that is available, be creative about how we invest in solutions to problems to achieve multiple benefits, and better support the people who need it the most.

How to Not Over-Engineer our Future
Author
Jessie Ritter - National Wildlife Federation
National Wildlife Federation
Current Issue
January-February 2021
Issue
1
Parent Article
Preparing for Climate Disasters

If there has been one uniting principle in disaster policy over the past several years, it is the recognition that we must invest in community resilience efforts before the next hurricane, flood, or wildfire strikes. We have seen increasing funding for efforts to “pre-spond” to disasters. The Federal Emergency Management Agency’s new Building Resilient Infrastructure and Communities Program is perhaps the most prominent example, but states and localities are also in the game. In addition, an economic recovery package under the incoming Biden administration will likely fund proactive infrastructure upgrades.

As states and local communities choose which projects to pursue, the first question they should ask is, What role are natural systems — such as floodplains, wetlands, forests, and oyster reefs — playing in protecting my community, and can that role be enhanced? To see the wisdom in beginning with this question, we should consider that an engineering design to safeguard communities today may actually undermine future resilience.

For example, decades of development-oriented engineering efforts in South Florida constructed a complex system of canals and water control structures, which have starved the Everglades of water and fueled toxic algal outbreaks on the coasts. The state and federal governments are now investing billions to functionally undo this “re-plumbing” of the great swamp, which is a critical hurricane buffer for South Florida.

Similarly, the Mississippi River was straight-jacketed with improved levees after the devastating floods of 1927. What seemed an appropriate decision at the time is a costly one today. In the Midwest, levees and other engineered structures constrain the river and contribute to higher and increasingly frequent floods. Downstream, the state of Louisiana is scrambling to fund its $50 billion Coastal Master Plan, which will, in part, create controlled openings in the levees to allow the river’s sand and sediment to rebuild the rapidly-eroding delta, as it did naturally for millennia.

This lesson applies to disaster mitigation today. It is better to work with nature, not against it. To be clear, natural systems cannot solve every resilience challenge. In some places, structural solutions are the only reasonable recourse. But rather than defaulting to building bigger, higher, stronger bulkheads, levees, dams, and ditches to shield our communities, we need a paradigm shift that looks first at our natural defenses.

By not considering nature first, we are leaving money and other benefits on the table. A large and growing body of research demonstrates that natural infrastructure provides measurable risk reduction benefits, and is often the most cost-effective way to reduce risk (nwf.org/protective-value-of-nature). Natural infrastructure also frequently enhances the quality of life in communities — by improving water quality, increasing the numbers of birds and fish, and creating new recreational opportunities.

Unlike concrete and steel, natural systems have the capacity to recover from disasters and adapt to ongoing changes. For example, wetlands and mangroves can migrate inland and oyster reefs can grow taller in response to gradual sea-level rise.

There is more to do to ensure these investments are truly sustainable. We must continue to expand our understanding of how natural defenses perform, and when they are most effective. As states and local governments undertake hazard planning, we also must ensure they have the tools needed to identify, and protect or restore, natural systems with risk reduction potential. We need to guarantee that communities themselves drive the decisions about resilience investments, and that as we deploy nature to enhance local quality of life, we avoid environmental gentrification effects. Finally, we must look across sectors and agencies to ensure that natural defenses are equally accessible options for communities from regulatory and funding perspectives.

Natural infrastructure should be our first and favored defense as we prepare for a changing climate. To best protect communities, we should strive to have disaster planning and spending reflect this consensus.

Out with the Old, in With the New
Author
Scott Fulton - Environmental Law Institute
Environmental Law Institute
Current Issue
January-February 2021
Issue
1
Scott Fulton

As we are moving from an aggressively deregulatory period to one in which regulation is more likely to be seen as important in advancing environmental policy, let’s take a quick look at what to anticipate from the three branches of the federal government.

We should expect a number of early actions by Team Biden, including rejoining the Paris Agreement, rescinding Trump executive orders, freezing regulatory actions pending in the Federal Register, and filing requests for stay or repositioning in litigation involving the defense of the outgoing administration’s rules. Some other actions, such as suspension of rules via the Congressional Review Act, await clarity on control of the Senate. Senate control will also be significant for purposes of those many appointments requiring confirmation, and with respect to congressional oversight of the new administration.

Looking at the Congress, the situation in the House of Representatives is settled. Despite some Republican gains, the Democrats will retain control. Regarding the Senate, what’s clear at the time of this writing is that in the next Congress the Senate will include at least 50 Republicans. The only path to Senate control for the Democrats is to win both of the run-off elections in Georgia scheduled for January 5. In that case they would have 50 seats, with Vice President Kamala Harris being the tie-breaker for purposes of determining majority for leadership and voting.

If the Republicans retain the Senate, the path for legislation supportive of Biden administration priorities obviously becomes arduous, although GOP leaders may see themselves as somewhat less constrained in the absence of a Trump White House. It bears remembering that a number of leading Senate Republicans were advocates for climate legislation in the pre-Trump days.

If the Democrats flip the two remaining Senate seats, then the dynamics around legislation would also flip. And the Congressional Review Act — used on 13 occasions in the early days of the Trump administration to invalidate Obama-era environmental rules — would come into play. But it cannot be assumed that an equally divided chamber with a vice presidential tie-breaker will provide anything approaching carte blanche legislative opportunity. Indeed, on questions like climate change, it may prove difficult to keep Democrats from fossil fuel-geared states in the voting fold for more ambitious legislative options.

In view of this, I am of the mind that regardless of what happens in the Georgia run-offs, environment-related legislation over the next two years will likely need to aim toward the middle to have hope of passage. This may mean, for example, that the most promising climate legislation will center on market-based drivers — think carbon tax and renewable energy incentives. Another pass at additional PFAS measures seems entirely possible, since White House opposition seems to have been the primary reason that House Bill 535, which would have sealed the deal on PFAS status as a hazardous substance under the Superfund law and would have compelled regulation under the Safe Drinking Water Act, did not move forward.

To the extent there is additional bandwidth for environmental legislation (a fairly big “if” in my view), other lawmaking in such a setting might include an update to the Resource Conservation and Recovery Act to align it better with circular economy thinking, pushing more secondary material away from destruction and toward beneficial reuse, or possibly to reach in the direction of growing concerns about plastics and microplastics.

Turning to the courts, much has been made of the remaking of the federal judiciary through Trump appointments and how this might influence judicial decisions on the environment. I am reminded here of the conservative judges I encountered in my early years as a litigator at the Department of Justice and the amazingly pro-environment decisions that they rendered.

While one might think that political philosophy, or the loyalty engendered by a lifetime appointment, would prove important to judicial decisionmaking, my sense is that, once on the bench, a much bigger idea sets up for most judges — the sacredness of the pursuit of justice, fulfilling the rule of law, and serving as an independent, co-equal branch of government, effectuating those exercises of executive and congressional authority that are legitimate and checking those that are not. For this reason, I am ultimately less pessimistic that the courts will prove an important fly in the environmental ointment.

Time will tell of course, and this next bit of time will be interesting for sure.

Out with the Old, in With the New.

ELI Report
Author
Akielly Hu - Environmental Law Institute
Environmental Law Institute
Current Issue
January-February 2021
Issue
1

Virtual Reality Fifty years after kicking off the green movement Denis Hayes receives ELI reward with public health again topic one

The Environmental Law Institute’s annual award ceremony was held virtually on October 15, live-streamed to our members and distinguished guests for the first time due to the coronavirus pandemic.

The event convenes law, management, and policy professionals to honor outstanding achievements in environmental protection. Proceeds support ELI’s research and education programs and publications.

This year’s gathering introduced a few changes due to the virtual format — a networking reception was hosted on the online event platform Remo, and the award ceremony was streamed live on YouTube.

Denis Hayes, principal organizer and founder of Earth Day, received the 2020 ELI Environmental Achievement Award. Hayes serves as president and CEO of the Bullitt Foundation and is the founder of the Earth Day Network. He is widely recognized for expanding Earth Day to 190 nations, making it the most widely observed secular holiday in the world. An environmental thought leader, writer, and speaker, Hayes is also well known for designing and building the Bullitt Center in Seattle, regarded as “the greenest office building in the world” and the first major building to meet the rigorous Living Building Challenge certification standards.

Congratulatory remarks via video were offered to Hayes by Gina McCarthy, president of the Natural Resources Defense Council and former administrator of the Environmental Protection Agency, Christine Todd Whitman, former EPA administrator and former governor of New Jersey, and Diane Keaton, the actor and filmmaker.

Gerald Torres, professor of environmental justice at Yale School of Environment and professor of law at Yale Law School, offered an official introduction for Hayes. “When environmental history is written, Earth Day will figure as a crucial inflection point. . . . It gave us what we regard as the basic infrastructure of regulations that have been so effective. Most people in the United States believe that the current quality of the environment is what it has always been. Of course, they would not have the luxury of that illusion but for people like Denis and the lives that Earth Day changed. Denis’s work is to continue to awaken people of the need for continued vigilance. He’s a champion of the belief that responsible public action is the most straightforward path to the future we want to embrace.”

Hayes’s acceptance of the award was delivered in the form of a celebratory interview with Stacey Halliday, independent consultant for Beveridge & Diamond. The two discussed various aspects of Hayes’s extensive career, including his reasons for expanding Earth Day to the rest of the world, priorities for the Bullitt Foundation, the green building design of the Bullitt Center, and environmental justice.

Despite the challenges of hosting the award ceremony virtually, President Scott Fulton noted some encouraging developments in his introductory speech. As the Institute’s main fundraising event, the ceremony garnered close to the amount of funds historically raised from the live dinner event.

This past year, ELI also successfully pivoted to remote programming, thanks to its experience with running virtual webinars, and achieved record attendance at its seminars and events over this difficult year.

While honoring the events of the past half century, Fulton also acknowledged the extraordinary environmental and public health impacts experienced today, with the pandemic, wildfires, and the racial injustice crisis, declaring that environmental protection remains as important as it was 50 years ago.

Institute, partners, research impacts of the digital economy

The Project on the Energy and Environmental Implications of the Digital Economy, a research program led by ELI in partnership with the Center for Law, Energy & the Environment at UC Berkeley and the Yale School of the Environment, published a series of research papers in September exploring the environmental impacts of the digital economy. Developed by seven research teams, the papers examine topics ranging from the use of blockchain technology to manage sustainable supply chains, quantifying the greenhouse gas emissions of ride-hailing platforms, and assessing the climate impacts of a peer-to-peer food-sharing app.

ELI has been involved in the digital and environmental nexus for the past twenty years. Visiting Scholar David Rejeski noted in a 1999 article on e-commerce published in the Forum:

“The Internet is today’s frontier. . . . The traditional tools of environmental policy may not work well in a world like this, if they work at all.” Many of the questions surrounding the digital space remain just as urgent as decades before. As the digital economy continues to expand, so too will our need to understand the environmental impacts of our digital lives and, importantly, develop better data to guide decisions by policymakers, businesses, and consumers.

The project began four years ago with two workshops on the environmental impacts of sharing platforms and artificial intelligence. These meetings convened researchers from various institutions interested in this field, creating an initial overview of the state of the research that eventually led to funding of the project. The initiative includes a project website (digitalenergyenvironment.org), a bibliography of curated research in the digital and environmental space, research papers, and an inventory of environmental applications of blockchain technology. The program has received close to $1 million of support from the Alfred P. Sloan and McGovern foundations.

Moving forward, the project will continue to identify research opportunities and establish an institutional home for its activities, with the goal of creating and nurturing a new field of research with a dedicated focus on understanding the energy and environmental implications of the digital economy.

Report on Arctic marine resources highlights food sovereignty

In September, ELI and its partners released Food Sovereignty and Self-Governance: Inuit Role in Managing Arctic Marine Resources, a report analyzing current Inuit management and co-management of marine food resources and the role of Indigenous self-governance in supporting food security.

The report, a culmination of a four-year-long project, examines how existing laws and policies support Inuit self-governance, and uplifts Inuit voices and expertise in the interpretation of legal frameworks. The project features four case studies from the United States and the Inuvialuit Settlement Region of Canada focused on walrus, char, beluga, and salmon to highlight the connections between resource management and food sovereignty.

Aligned with its central purpose to bring together and amplify Inuit voices, the project was co-developed and co-led by Inuit individuals and Inuit-led organizations. In total, the report involved over 90 Inuit authors and an advisory committee of Indigenous knowledge holders. Partners include the Inuvialuit Game Council and the Fisheries Joint Management Committee (in the settlement region) and the Eskimo Walrus Commission, the Association of Village Council Presidents, the Kuskokwim River Inter-Tribal Fish Commission in Alaska, and the Inuit Circumpolar Council Alaska, as well as ELI, with ICC Canada serving as advisor.

Efforts were made to give every voice equal weight in order to create ownership and prioritize the knowledge of people experiencing marine resource issues first-hand. David Roche, ELI staff attorney, managed the project, and Cynthia Harris, director of tribal programs and deputy director of state, local, and tribal environmental programs at ELI, served as a legal researcher for the project.

The report represents a continuation of ELI’s projects in the Arctic, which have covered topics such as model Alaska Native consultation procedures, science communication, and government-to-government consultation related to marine subsistence resources in Alaska. In future Arctic policy research, ELI plans to continue applying the report’s principles of co-producing knowledge and building long-term partnerships for more effective project outcomes.

ELI in Action ABA awards Institute for “ELI at 50” program

The Institute’s “ELI at 50” program received the 2020 American Bar Association Section of Environment, Energy, and Resources Distinguished Achievement in Environmental Law and Policy Award. The annual award recognizes individuals or organizations that have made significant contributions to improving environmental law and policy and advancing environmental protection and sustainable development in the United States.

In a virtual award ceremony, the ABA noted that ELI offered innovative programming in each month of 2019 and produced significant publications in the past year, facilitating “critical discourse of where environmental law has been, and where we must go next.” President Scott Fulton noted in his acceptance speech that 2019 was a record-breaking year for ELI, both in the number of programs offered as well as the number of practitioners reached through the Institute’s programs.

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On September 25, 2020, the ELI China Program held a webinar on best practices in environmental enforcement under a grant from the U.S. Embassy in Beijing. Close to 200 government and legal professionals in China joined the webinar, representing over 20 different provinces. Attendees included officials from the Ministry of Ecology and Environment and provincial bureaus of environmental protection, judges, prosecutors, and members of nonprofits, academia, law firms, and businesses. President Scott Fulton, Distinguished Judicial Scholar Merideth Wright, and Visiting Scholar LeRoy Paddock presented on various aspects of compliance and enforcement in the United States. Topics of discussion included monitoring, permitting, citizen suits, penalties, and judicial supervision of remedies. Simultaneous interpretation from English to Chinese was provided via Zoom, enabling a bilingual presentation for attendees.

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Since 1998, with support from EPA, ELI has convened public health officials from across the United States who share the mission of improving indoor environmental quality. In October, ELI convened the 15th Workshop for Indoor Air Quality Officials, a three-day forum attended by representatives from over 30 states, several tribal and local governments, and officials from EPA. The workshop addressed both long-standing indoor air quality topics and current issues implicated by the pandemic, such as ventilation, cleaning and disinfection, and management of Legionella and other plumbing pathogens.

Although the workshop was convened as an online event for the first time, its purpose and approach remained the same: to foster sharing of information among programs to identify new strategies, resources, and opportunities for collaboration to reduce indoor air risks.

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In September, the International Network for Environmental Compliance and Enforcement, of which ELI serves as secretariat, held the first session of a six-part webinar series on current and potential uses of citizen science to improve environmental monitoring, compliance, and enforcement. The webinar, Citizen Science: Concepts and Applications for Enforcement, featured presentations on the role of citizen science in scientific research and monitoring, regulatory decisions and enforcement, and environmental justice, among other applications. Other webinar topics in the INECE citizen science series include water pollution, air pollution, Indigenous and community monitoring, and emerging government strategies.

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Pesticides have widespread impacts on agriculture, ecosystems, and public health, especially for communities such as farmworkers and children. In October, ELI hosted a webinar titled Pesticides, Farmworkers, Industry, and Environmental Justice, exploring recent changes in federal regulation of pesticides and policy approaches to addressing safety and environmental justice issues.

Speakers included James Aidala, consultant at Bergeson and Campbell; Patti Goldman, managing attorney at Earthjustice; Gretchen Paluch, pesticide bureau chief at the Iowa Department of Agriculture and Land Stewardship; and Caleb Pearson, assistant general counsel at CropLife America.

Earth Day founder Denis Hayes wins ELI Award.

The Debate: Environment 2021: What Comes Next?
Author
Seema Kakade - University of Maryland
James McElfish - Environmental Law Institute
Granta Nakayama - King & Spalding
Vickie Patton - Environmental Defense Fund
University of Maryland
Environmental Law Institute
King & Spalding
Environmental Defense Fund
Current Issue
January-February 2021
Issue
1
The Debate: Environment 2021: What Comes Next?

In the first half of the administration of Donald J. Trump, the Environmental Law Institute issued two reports describing the significant regulatory reform efforts underway throughout the executive branch. The purpose, consistent with the Institute’s nonpartisan identity, was to bring to the public an understanding of the measures and their relative significance. ELI was supported in this endeavor by the Walton Family Foundation and the Civil Rights and Social Justice section of the American Bar Association,

The reports were popular and well-received. Indeed, in late 2019, research staff at the Institute began hearing from the profession and other members of the ELI community a desire for an update on what they saw as highly important changes coming from many sources in the pollution and conservation arena through rulemakings, executive orders, enforcement decisions, and other means. The result was Environment 2021: What Comes Next?

This report takes stock of the dramatic actions of the Trump administration in the environmental space and is in this sense retrospective, but it is also forward-looking. It asks, What aspects of the administration’s work may prove durable? What aspects are likely to change?

Every October, ELI holds its principal policy event of the year. In 2020, the Policy Forum brought together a handful of the profession’s most respected analysts, including the lead author of the report, ELI Senior Attorney James McElfish, who moderated the discussion. Their goal was to both look backward over the Trump administration’s record and to look forward at policy trends that are going to come to a boil in the next four years.

James McElfish: One of our jumping off points for today’s discussion is ELI’s “Environment 2021” report, which is an attempt to give a bird’s-eye or contextual view for recent developments and what they might portend for the next year or two. In that spirit, we have gathered a small group of experts from diverse sectors to give their own views on recent developments in environmental protection and what the future may bring.

I want to begin with a pair of questions to each panelist, whom I’ll introduce in turn. One of the questions is backward-looking, reflecting our current situation. One of them is as forward-looking as we can be.

Question number one: What is the most significant development in environmental law or change in the administration of environment law in the last year or two that you think will have the greatest influence in the years ahead?

The second question is: What development is anticipated in environmental law next year or the following year that others might not have noticed or that might not be obvious to the practitioner?

I’ll ask Granta Nakayama to respond first. Granta is a partner at King & Spalding LLP. Many of us got to know him in his former role as assistant administrator dealing with enforcement at the Environmental Protection Agency.

Granta Nakayama: There have certainly been some important decisions out of the Supreme Court. Clean Water Act jurisdiction, for example. And there have been some policies out of EPA, such as deferring to states on enforcement.

But the issue I want to focus on is the increased interest by the general public in the environment. I sense it. I see it. There is a profound reawakening. We might call it the second green wave. Fifty years ago we had Earth Day, leading to a tremendous amount of legislation — the Clean Water Act, the Clean Air Act. I sense the same sort of interest from young people today. There is the Green New Deal. People are asking, What can we do on the legislative front? There is interest in new law addressing concerns like PFAS chemicals. This posture reflects a greater understanding by the public of environmental issues. It didn’t happen overnight and it didn’t happen by magic. There was a lot of hard work by people like Vickie Patton, our fellow panelist here, and many others. Folks now realize that the environment is going to have a tremendous impact on them. Eventually, new law will come out of that.

Let’s take as an example energy transition, the shift away from fossil fuels to renewable sources of power. One area that the general public will be impacted is in transportation, the movement to electric vehicles.

I’m old enough to remember the original Zero Emission Vehicle mandate in California in 1990. Of course the mandate confidently predicted that ZEVs would constitute a significant fraction of the vehicle market by the year 2000. Now we’re three decades in and one can debate why that didn’t happen. But it is finally happening now. That shift in public perception is happening even in the midst of low oil prices.

There is enough oil for many years, but the idea that is capturing people’s attention is that maybe we shouldn’t focus on supply of fossil fuel. That’s not really the issue. Just look at the United States. We have a tremendous amount of oil and gas through fracking. The issue is there may not be enough clean air to burn it in. That is a different way of looking at the sustainability of fossil fuels. It’s not how much is available but, rather, the effects of burning it. That’s where we could see a dramatic shift in the public’s perception of renewable fuels.

The nation has had a love affair with the automobile for a century now. It has shaped our infrastructure, our cities, suburbs, housing, commuting, the pattern of our daily lives. But we are on the cusp of some pretty dramatic changes in the vehicle market, with electric cars that are inexpensive and can drive a long way on a charge. They are going to be cost competitive with their gasoline counterparts. They can be recharged at home — you are no longer required to go to a gas station. For longer trips, many can recharge to 80 percent capacity in 15 minutes.

No, electric vehicles are not going to solve the traffic problem. But they’re going to break the public’s tie between oil and personal autonomy. That strong tie has shaped a lot of our environmental policy and law. It has shaped voter attitudes.

The shift from gasoline to electric power or other alternative fuels will have tremendous impact. In America, we consumed 390 million gallons of gasoline a day in 2019. Every day. But as electrical vehicles impact that market, even at 10 percent penetration, that would represent a dramatic shift in energy demand away from gasoline. It would have a dramatic impact on the market for electricity, which obviously helps those who supply renewable power.

We Americans have long loved the automobile and the personal autonomy associated with it. That has led to staunch support for whatever is required to maintain the status quo. If oil is no longer necessary to drive a vehicle, that will have a big impact on our nation’s foreign policy. It affects people at the local level too. Shifting to electric vehicles is going to necessitate tremendous upgrades to our grid and our electricity supply capability, especially the impact on renewable sources. In the future, being able to choose renewable power for things you want to do in your daily life will make it mainstream.

Let me turn to Jim’s second question, about an unforeseen development in the next few years. One can envision a renewal in nuclear power.

Let me explain why, and how that’s connected to the transportation issue and our vehicle fleet. If electricity and not gasoline is the issue, you might ask the average voter if they prefer power on demand, including from nuclear sources, or the possibility of electric supply issues with renewables that affect your home’s heating and cooling and how far you can drive. Americans like their comfort and their autonomy. Depending on the progress on renewable fuels, you might not have to make that kind of choice.

But since the rise of renewables may not come as quickly as we hope, I believe in the next few years you will see an increased interest in nuclear power. I heard on the BBC the other day a group of scientists who said people do not fully understand the risk to people’s health and the economy that could come with climate change. But the risk they felt was overestimated in people’s minds was nuclear power.

James McElfish: Granta has managed to open up a huge array of environmental law opportunities — international, national, state, local, zoning, transportation, even electric utilities.

Let me turn to Vickie Patton and ask her the same two questions. She is the general counsel of the Environmental Defense Fund, based in Colorado. Vickie also did her time in EPA’s Office of General Counsel.

Vickie Patton: As we take stock and look over the horizon, the greatest urgency is addressing environmental justice in a way that gets at the root of the injustices and produces solutions that are enduring. One path-breaking example comes from New Jersey. The state recently passed a law that advocates are referring to as the holy grail of environmental justice legislation. Leading legal experts call it a quantum leap in addressing environmental injustices.

One feature provides for greater transparency, and meaningful community-based engagement. Another directs the state environmental agency to deny industrial permits that will create harm when one considers the cumulative impact imposed disproportionately on disadvantaged communities.

As we think about where we go over the horizon, environmental justice is going to be a really crucial issue for all of us. We’re shifting from a moment where environmental justice was seen as one facet of environmental law to environmental justice being woven into the very fabric of environmental law at all levels.

The data that the Harvard School of Public Health gathered highlights the unjust and synergistic impacts on disadvantaged communities and people of color who are experiencing both the dire and disproportionate effects of the coronavirus and air pollution at the same time. That combination creates layers of harm and injustice.

Resources for the Future looked at satellite data and realized that there are millions of people who are not even in the system of our nation’s air quality protections because we are misclassifying areas that are unhealthy due to inadequate monitoring data.

Take also the work that my organization, Environmental Defense Fund, has done in partnership with Google. We have Google Street View cars and other sensors on streetlights and homes in places like Oakland and Houston, creating a massive amount of measurement on a hyperlocal basis. When you look from community to community, neighborhood to neighborhood, block to block, there are pockets with very serious levels of air pollution. They’re not being adequately addressed by our current policies. We environmental lawyers need to make a big step here and integrate environmental justice into every fabric of the law. It’s essential to the legitimacy of environmental law.

I agree with Granta’s comments about transportation electrification, and building public support. One manifestation of the sea change in public opinion and the convergence with the technological possibilities is that there is a new bar for private-sector leadership. That happened this year in a really major way and I think it will continue to happen as we look over the horizon.

Just a couple of examples. We started the year with BlackRock declaring that climate risk is investment risk, and that reverberated. Over the course of 2020, several big companies then made big commitments to climate action. What’s been reset is both the ambition of those commitments and their seriousness. Following through on those commitments, are they real and meaningful? It’s not enough for companies to commit to do their part to mitigate the climate pollution that they are responsible for. The bar has been reset and companies are now responsible for also leading in the policy debate that produces those kinds of commitments.

Along this vein, Microsoft announced this year not only is it going to go to net-zero for all of its operations — and continue to lead and invest in climate action well beyond its own footprint — but it’s going to address all of the climate pollution it has been responsible for since its founding in 1975. That is resetting the bar.

Investors are demanding climate action. Climate action is also being driven by employees who expect their companies to be leaders on social issues. And the overwhelming public sentiment is for climate action. So consumers too are demanding companies be climate leaders. We’re seeing a convergence — the support for action is increasing at the same time as technology opportunities become apparent.

I agree with Granta about transportation electrification. We need to make this shift to save lives. It is one of the biggest sources of harmful air pollution in our country, causing over 20,000 deaths every year. And we need to make this shift to create jobs. There’s an enormous opportunity for a manufacturing renaissance. Ford Motor Company announced that in the Detroit area it is launching a $700 million plant to electrify the F-150 pickup truck, creating hundreds of jobs. Meanwhile, Tesla too is building a new electric vehicle plant.

This is where the world is shifting. We want to be part of the competitive race to advance transportation and to create the jobs that we urgently need as we rebuild in a way that is equitable, sustainable, and inclusive. It’s an opportunity and one that, if we all work together, can happen in a way that creates both economic prosperity and greater justice.

James McElfish: I have even more questions for you, Vickie, on the many things that you said that overlap or dovetail with things that Granta said. But before I do that, let’s hear from Seema Kakade.

Seema is at the University of Maryland’s Carey School of Law, where she both teaches environmental law and leads the clinical practice work. She was an enforcement attorney with EPA and served in the Office of General Counsel with the Department of Energy. We also know her as a coworker at ELI, where she led our acclaimed summer program.

Seema Kakade: In listening to both Granta and Vickie, my perspective too dovetails with theirs. There are trends toward justice and there are real strides in technology. I want to raise some different issues on both of those topics — issues I’ve seen develop in the last couple of years.

On environmental justice, I couldn’t agree more with Vickie. There seems to be a growing recognition by the public. There are other issues as well that I want to point out.

Not only is there a disproportionate burden, there is inadequate access to the really good things in the environment. When folks describe how they got interested in environmental law, a lot talk about their childhood experiences in natural spaces. Today there is a push for that kind of interaction in communities that at present do not have those opportunities.

There is also growing recognition of diversity and inclusion within the field of environmental law itself. I have seen tremendous desire among organizations, among corporations, among government agencies to look at their own operations. Who are they including? Are they diverse? Are they diverse on multiple levels? Those questions are being raised for perhaps the first time in the last couple of years. We have to think about diversity and inclusion in the field as a whole, as a driver for the subsequent changes that may continue in the environmental justice realm.

Looking at technology, there are a lot of recent changes. I couldn’t agree more about the opportunities presented by electric vehicles, smart grids, and renewable power. Add to that advances in pollution control over the last ten or so years.

But we also need to recognize the change in information technology. Citizen science is a great example of this. There is an incredible growth in the technological tools that are available to the public, for sampling as a for instance. We even see citizens get out there with drones and do some pretty amazing things in citizen science.

I get called by community groups wanting to know what is coming out of a local smokestack, wanting to know what’s coming out of the discharge pipe from that factory down the street, wanting to know what is in the water that they’ve seen downstream from a plant. The growth in the recent past of citizen science is a huge source of information technology.

We have seen some developments in information technology as a result of the COVID virus. We are able to get on Zoom calls to coordinate our work and GoTo webinars to discuss it with practitioners and the public. In the last couple of years being online has dramatically improved people’s access to information. We know transparency is a problem for communities and for people. And we are realizing that agencies need to do a better job of informing professionals and the public.

For your number two question, looking forward at what might happen, I see the continued push of developments at the state and local level. I’ve seen growth in that dovetail with environmental justice. Localities are pushing on a number of issues. And there is a lot going on in the state legislative space.

I’ll give a few examples. We tend to think a lot about the executive branch agencies and maybe judicial branches, but I do think there’s a lot happening legislatively in the states — Vickie pointed to New Jersey and its environmental justice law as an excellent example. I also see changes in state constitutions, creating environmental rights.

A great example of state action concerns pollution from coal ash produced by power plants. Coal ash dramatically impacts communities. We’ve seen significant strides at the state level in Virginia and North Carolina with new legislation addressing this pollutant.

There is going to be a continued push for that information on state permitting. Due to upgrades in information technology, states are moving online for access to information on permitting. We have been pushing for states to have environmental justice mapping tools. We have tools like EJSCREEN at the federal level, and states can follow the example of California, with its CalEnviroScreen.

We can also look in the legislative space at what cities are doing, with their administrative processes like zoning. It’s a tremendous area where there’s a lot happening at the local level that impacts communities.

James McElfish: I want to follow up on this round to make sure we are able to flag some of the legal issues which, Seema, I think you began to do by referring to things like CalEnviroScreen or the kinds of mapping tools that are available or that Vickie referred to with the recent New Jersey environmental justice law. All of you identified societal trends and business trends and private investment. How can we make these good things happen? What can we do to push these forward? I wonder if each of you could highlight one or two ways in which environmental law can either help or get out of the way.

Granta Nakayama: It has been pressure from the public that has driven a lot of these advancements and changes, and the associated regulations and laws. There didn’t use to be a groundswell of consumers pushing for electric cars, but suddenly drivers are demanding them. It took a lot of work by a lot of groups and a lot of people in government who had basic legal mandates to meet. That triggered development of designs before there was consumer demand. And then once you have public support, you do raise a very good question concerning how you foster that.

I’ll be quite frank. This is coming from a former person at the agency. There are many ways in which environmental law actually slows down some of this progress. One is bureaucratic inertia. It takes years to promulgate some rules. Then, by the time you get some experience with them, you realize they probably weren’t crafted in the best possible way. Take the paint waste rule. It was 20 years from the initial Notice of Proposed Rule Making to when the final rule got issued. The world works at a much faster pace.

Another aspect is many times we get set in our ways. If you’re a bureaucrat, you’re literally the person enforcing a rule. You’re comfortable doing things a certain way, but that may not be the most efficient. Take for example if a business self-reports under EPA’s audit policy, they have an incredibly detailed website you go to. In a way that’s an improvement, but it’s set up in a way that’s not very user friendly. And it falls short of covering all situations.

There are ways to streamline the process. That’s really a nonpartisan issue. Whatever we’re going to do, let’s do it efficiently. For example, in California there’s a rule on renewable fuels that says you can’t store them for more than three quarters. Otherwise, you’ll lose all the credits out there in the low-carbon fuel standard. Well, that doesn’t work for a lot of people who generate renewable fuels through dairy. They work on an annual basis because for farmers, the seasons go in an annual cycle. If you went to a yearly cycle, that would save a lot of time and money and also save heating the biodigesters in cold weather, producing carbon emissions.

There may be a will, but agencies don’t have the money and the personnel to go back and fix a lot of these glitches. But if there was an effort to go after these problem areas, you would get a lot of support across the board for making rules more efficient, easier to implement, and, frankly, easier for the agency to enforce.

Vickie Patton: There’s an impression that the Trump administration’s actions have been focused solely on tearing down President Obama’s leading efforts to protect human health and the environment. But the actions go far beyond that. For some reason, through our national policy we are creating impediments to urgently needed investments in clean energy and hurdles for state and local innovations that are necessary to protect human health and the environment. Just a couple of examples of where we need really poorly designed policy and law to get out of the way.

In December 2019, the Federal Energy Regulatory Commission adopted what’s called the Minimum Offer Price Rule. It is designed to increase the cost of renewables in the Mid-Atlantic energy market. It’s designed to harm state innovation, private-sector innovation, and clean energy policy and investments — and to promote fossil fuels. That’s just distorting a market. It means more pollution for millions of people and higher costs.

The Trump administration has pursued a sweeping attack on state and local innovation. One example is a really far-reaching attack on states’ long-standing authority to adopt clean car standards. That is in federal court now. So is an affirmative multi-pronged constitutional challenge against California’s voluntary collaboration with Quebec in reducing climate pollution. California lost that case, which is on appeal.

Trump’s Justice Department has made a claim that would give to the executive branch unlimited power to declare unconstitutional any state or local action that is deemed to be interfering with the foreign policy interest of the country, even at the most nominal level.

One of the big steps we can take was underscored by a landmark report by the Commodity Futures Trading Commission about the risk climate change presents to our financial system, followed by an op-ed in the New York Times by a Trump-appointed official at the Securities and Exchange Commission making similar points. Investors are calling forth to ensure that climate risks are disclosed under securities law.

There are both very serious risks publicly traded companies face with respect to climate change — and opportunities as well. All of the technologies, all of the tools that Seema described in such a compelling way, enable us to have greater insight into what those risks and opportunities are. Those need to be disclosed by publicly traded companies under federal securities law in a way that is rigorous, mandatory, comparable, and measures up to the challenge.

Seema Kakade:; When you ask should environmental law get out of the way, it depends on the law. There are certainly laws and regulations that actually do help quite a bit. I don’t want to be down on environmental law. It has an ability to push states and local governments to do more. Environmental law also has the capacity to push corporations to do more.

There are times when it isn’t environmental law that is the driver. We need to discuss whether it was the Clean Power Plan as driver for the push away from coal, or whether it has been market forces.

James McElfish: Thank you for the vote of confidence in environmental law, to which some of us have devoted well over 40 years of our professional lives.

Having started my career at the Interior Department, there is an array of laws and mandates there that operate in interesting and sometimes conflicting ways. Is there anything in the non-EPA law world that we should be paying attention to? Vickie raised the Federal Energy Regulatory Commission’s MOPR decision, and both of our other panelists emphasized other issues. But at least in the interest of giving time to the other bodies and other agencies, be it the Fish and Wildlife Service or the Nuclear Regulatory Commission, is there anything else we environmental lawyers ought to keep track of in the near future?

Granta Nakayama: We did not coordinate our answers for this discussion. There are three different perspectives, but we’re all saying the same thing.

I do want to reemphasize that environmental law is important. This is an incredibly fulfilling field. I’ve been blessed to practice in it by blind luck. My first case was an environmental case. There are all these issues with the water you drink, the air you breathe, the ground you stand on. The world is your environment and there are problems with that environment.

Many of the laws are written generally, and lawyers have a lot of room to think creatively. Folks at NGOs think very creatively. I’m always impressed with your filings about how to address problems using the tools we have. And they bring that environmental law mindset to the proceedings of different agencies.

Whatever perspective on an issue, you can bring in your creativity. It’s a relatively new area of law. New issues come up all the time, for instance problems with plastics.

James McElfish: Let me ask Seema and Vickie about something in the non-EPA universe we ought to pay attention to.

Seema Kakade: In my class, we talk about combustion sources, and all the different regulatory agencies that impact the sources. If you look at coal plants, from transmission to market to disposal of waste, there are so many different federal agencies that might regulate. In a lot of other countries, the law is all-encompassing on one particular source category. Here we have not only multimedia within EPA on air, water, waste, and that sort of thing, but we also have so many different federal agencies involved in regulatory processes.

I tell my students to pick any federal agency, you will find environmental law work. We have students go to Housing and Urban Development to do indoor air quality and lead paint issues. We have students go to the Department of Agriculture and be thinking about food justice.

My clinic does a lot of client counseling for communities. They don’t look at environmental issues as being EPA-led. They are looking at a whole variety of issues that do dovetail in housing, and transportation, and infrastructure, and affordability. Like electricity rates, which goes back to the way we run our wholesale markets. The process of thinking more broadly is the direction to go both for Granta’s point on sustainability but also for really addressing some of these overarching topics on environmental justice or climate change. It really does span multiple federal regulatory agencies.

To answer your question on things that people should be watching for, quite honestly it’s hard to at this point really not mention the National Environmental Policy Act, because there is so much happening. Beyond watching the Council on Environmental Quality’s new regulations, there are also the individual NEPA regulations at all of the federal regulatory agencies. Because a lot of my students are surprised to realize that the Department of Transportation has a separate set of NEPA regulations and categorical exclusions.

The other area that is important to watch is what’s happening with respect to FERC’s orders and approval of tariffs. There could be more change in the future with respect to FERC and how the commission operates.

Vickie Patton: I agree with the way that Granta and Seema have described this. The word that Granta used was “imaginative,” and that captures it. We need to be imaginative in addressing the urgent challenges of climate change and justice. That means there are profound opportunities and risks. For lawyers, there is an opportunity to help companies innovate and transition to clean energy. That means being a great corporate lawyer, being on the cutting edge of transactions and working in close partnership, and advising and helping those companies navigate this in a way that is workable.

For tort lawyers, there will be increasing lawsuits in terms of duty of care due to the pollution that companies are responsible for and also due to the reasonably foreseeable need to adapt. So let’s think about duty of care in a world where climate change and justice are front and center.

We need to be imaginative in thinking about securities law and how we make sure we are disclosing the risks and opportunities associated with climate change. Doing imaginative work like Seema’s law clinic, where she is working on the front lines to achieve justice for all. So many ways for us as environmental lawyers to bring a wide variety of imaginative thinking to bear.

James McElfish: Let’s get to audience questions. Our first questioner asks if any of you foresee the possibility for carbon legislation moving forward.

Vickie Patton: There is a real opportunity for climate legislation. The factors include public support and the fundamental shifts in the economics in a world where clean solutions are out-competing the status quo. The opportunity for our country to create jobs and become a global leader is imperative in terms of competitiveness. As we see the catastrophic climate harms impacting communities all across the country, public support for action will only intensify.

James McElfish: There is a question about hydrogen as a fuel. Are we likely to see legislation?

Granta Nakayama: A lot of the push for hydrogen fuels has come from the transportation sector. Hydrogen is a very difficult fuel. It’s the smallest atom, so it is very hard to contain. But hydrogen is ubiquitous. It combines with oxygen to produce water, so it’s a very clean fuel once you have it. There are industrial ways to generate hydrogen and ways that are environmentally friendly, but there is the infrastructure problem. There are going to be opportunities, especially for fleet vehicles.

But as we move to alternative fuels in general or battery-powered vehicles, you’re going to see a greater mix of fuels. Hydrogen will be in there some way. It’s just too common and there are opportunities to generate it from other industrial processes.

James McElfish: We have a question about the role of renewable energy portfolio standards. In your views, have they really done a lot of good? What is their role?

Vickie Patton: They’ve had a huge impact. They have created the pull for advanced clean energy solutions. We’re now seeing a world where major power companies — industrial utilities, municipal power companies, rural electric cooperatives — are pivoting from high-polluting forms of electricity to renewables, utility-scale wind/solar storage, and doing it in a way in some regions of the country where they save their customers money.

Granta Nakayama: I agree. In rural Virginia there are huge solar installations. These were locations that typically were at the end of the distribution line so they had to pay pretty high prices in the past. The regulatory pull, as Vickie says, started the ball rolling and then created the market. Then good things followed.

Vickie Patton: People have worked together in a number of communities to introduce renewables in a way that provides a just transition. In my home state of Colorado, we’ve made a number of transitions from coal-based power to utility-scale renewables in a way that’s both creative and saved jobs.

So we have wind turbines that are manufactured in places here like Windsor, Colorado. In Pueblo, we have the benefit of this cleaner energy out-competing more expensive fossil fuel energy. Our major power provider negotiated a long-term contract with a steel manufacturer in Pueblo. It kept that manufacturer in the community. That’s a thousand jobs, saved by shifting to clean energy.

We have farms that are being kept in their families because farmers are hosting wind turbines and receiving lease payments as a result of our transition to clean energy. All of that has been catalyzed by renewable portfolio standards and then people working together to ensure that these transitions are effectuated in a way that creates jobs and ensures shared economic prosperity.

Seema Kakade: I agree largely with Granta and Vickie on this point, but it is sometimes tough to say how much of the driving impacts that we’re seeing are a result of renewable portfolio standards. That’s a great area for additional research.

James McElfish: There’s a question, which we have touched on, dealing with the appetite among states to do additional legislation in the climate area.

Vickie Patton: There’s an enormous amount of activity ­— innovation, imagination — in the states that will be of increasing importance. It’s also really important that we continue as a country to support the innovation and leadership of state and local governments.

In Pennsylvania, there is an action to join the Regional Greenhouse Gas Initiative. That is a reflection of the economic opportunities that come with climate action. In Colorado, there is sweeping climate legislation led by prominent African American members of the General Assembly and Speaker of the House K. C. Becker. That included within it both a commitment to science-based climate action in statute and to environmental justice, and protecting disproportionately impacted communities. Having both of those crucial considerations woven into the fabric of Colorado law is a huge step forward.

Take also Governor Gavin Newsom’s recent executive order in California providing for transportation electrification. It also provides for accelerated electrification to achieve zero pollution from equipment and engines in port areas. There is an enormous amount of activity at the level of state and local governments in all parts of the country because of the economic opportunity and the imperative for climate action.

James McElfish: We’ve reached the end of our time together. There is so much happening in the private sector and among the states in the intersection of climate justice and the transition of our energy economy. Following developments at FERC, which was in many respects and for many years a backwater, it is really important because of its role in seeing how these transitions will or will not occur and at what pace.

The area of Environmental Law 2021, whatever the outcome of this year’s political contest, is going to be fertile, rich, and give all of us a great deal to do. TEF

In late 2019, research staff at the Institute began hearing from the profession and other members of the ELI community a desire for an update on what they saw as highly important changes coming from many sources in the pollution and conservation arena through rulemakings, executive orders, enforcement decisions, and other means. The result was Environment 2021: What Comes Next?

An Aide for the Ages
Author
Joel K. Goldstein - St. Louis University School of Law
St. Louis University School of Law
Current Issue
January-February 2021
Issue
1
An Aide for the Ages

His New York Times obituary declared him “the largely unheralded chief architect of the Clean Air Act.” It and the Washington Post story also noted his key role in the Clean Water Act. These and other posthumous recognitions of a congressional aide’s impact followed an extraordinary lifetime event, a 2014 Supreme Court oral argument on a major environmental case, when Justice Stephen Breyer wondered what “Mr. Billings . . . the staff person” would have intended regarding the meaning of the Clean Air Act. That shout out to Leon G. Billings prompted Supreme Court scholar Richard J. Lazarus to write that America has “reason to be grateful” for the “impressive work” of staffers like Leon.

As staff director of the Senate Subcommittee on Air and Water Pollution from 1966 to 1978, Leon worked with a talented, bipartisan group of senators to produce, implement, and preserve a revolutionary new environmental regulatory regime which has made profound, enduring contributions to improving public health and the environment. A half century after the two landmark laws, it’s worth reflecting on Leon’s life for lessons about effective political activism, in the environmental arena and elsewhere.

Leon’s 1966 resume made him an unlikely staff architect of an environmental legislative revolution. He wasn’t a lawyer or an ecologist and had no environmental credentials. And he was, and remained, a partisan Democrat, a disposition seemingly inconsistent with shepherding bipartisan legislative triumphs. When, during Leon’s later service in the Maryland General Assembly (1991-2003), conservative columnist Robert Novak labeled him the nation’s most partisan Democratic legislator, Leon dispatched a thank you note. Yet Leon’s political understanding, skill, commitment, and personal qualities made him indispensable in creating and preserving the 1970s’ environmental regime.

Prior to his death four years ago, Leon often wrote, spoke, and taught about the extraordinary legislators on the Senate subcommittee whom he so admired. Edmund S. Muskie, whom Leon served, officially or unofficially, for three decades, was “this nation’s most important environmental leader” and “the first steward of the planet Earth,” Leon said in eulogizing the senator. Leon’s 2005 lecture “In the Shadow of Greatness” celebrated Muskie and his Republican colleague, Howard Baker. Together they used law to force technological innovation to promote health and environmental values. In Eagleton and the Environment: Promises Made; Promises Kept and elsewhere, Leon credited Thomas Eagleton, a Democrat, with the statutes’ premise that government should be accountable, by making promises mandatory, setting deadlines, and providing remedies including citizen suits. Leon praised Republicans John Sherman Cooper, J. Caleb Boggs, and others, too. Few so selflessly celebrated these public servants so often for so long. But not only was Leon in the room when the great environmental laws happened, he was instrumental in their happening. “Simply put, absent Leon, the Clean Air Act and the Clean Water Act, strong, durable, effective statutes, would not have been enacted,” judged Tom Jorling, the Republicans’ committee counsel and Leon’s close friend.

Leon was born in Helena, Montana, in 1937 to two crusading, progressive journalists. His parents often hosted visiting activists, exposing the child to vibrant political discourse. Leon inherited many of his parents’ political sensibilities. After short-term jobs in the West, newlywed Leon and wife, Pat, arrived in Washington, D.C., in 1963, when Leon began as legislative representative of the American Public Power Association, which advocated for community-owned power. That work engaged him with the Senate Committee on Public Works, whose staff director, Ron Linton, recruited Leon for Muskie’s pollution subcommittee.

His first years there presented challenges. He erred occasionally in an unfamiliar field. Muskie’s preference that staff report through administrative assistant Don Nicoll initially limited Leon’s access to the senator. Leon was responsible for staffing Muskie regarding public works issues generally, including Maine’s proposed Dickey-Lincoln hydroelectric project. In an early encounter, Leon told Muskie that he needed to ask Senate majority leader Mike Mansfield for appropriations for that project, giving Muskie four arguments to use. The brilliant, but sometimes short-tempered Maine senator replied with a fierce, incisive attack on Leon’s arguments. Shaken, Leon started to retreat from the senator’s office only to be restrained by Nicoll. Muskie then phoned Mansfield and repeated three of Leon’s points virtually verbatim. Lessons from that experience helped Leon build his creative partnership with the senator.

Leon soon established himself as a formidable Senate figure. In short, Leon’s talent, approach, and performance translated into influence. But it’s worth disentangling some of the interrelated qualities.

Leon was committed to vindicating the public interest. He saw pollution as a struggle between haves and have nots, a battle between public and private interests. As Jorling later observed, Leon “saw the outrage in a person or corporation degrading the commons of air and water, especially threatening public health. When Leon’s sense of fairness and justice were offended —watch out. The strength of the Clean Air Act and the Clean Water Act were very much a response.”

Leon was a learner. He mastered environmental subjects by preparing for, attending, and studying hearings, reading reports, and conversing with experts, including during daily commutes in his pickup truck with Jorling, a lawyer and ecologist. That process converted Leon from environmental know-nothing to environmental expert, but required a continuing commitment in a dynamic field.

Leon established relationships with senators and their staffs by open and frequent communication. Leon understood that his influence derived from his relationship with Muskie and the others and nurtured those relationships. Even before Leon and Jorling began commuting together, Leon had morning coffee with Boggs’s aide William Hildenbrand, who shared insights about building committee consensus. He met with diverse Senate aides to understand their members’ inclinations and needs. He learned to read Muskie and others. He interacted with full committee staff to keep them informed and on board. Conversations continued and relationships deepened at the Tune Inn, a Capitol Hill bar, where Leon ate and drank often enough to command a VIP table.

There was nothing obsequious about Leon. He battled people from Ralph Nader to auto executives whose talking points Leon once legendarily converted into a paper airplane that wouldn’t fly. When Leon asked Muskie during the 1976-77 transition to recommend him as Jimmy Carter’s EPA director, Muskie replied, “Leon, you don’t know how to kiss ass well enough to be EPA administrator.” Muskie supported Leon’s bid and, when Carter chose another, Muskie communicated his displeasure in what Carter considered the second most unpleasant conversation of his first year as president.

Characteristically, however, Leon helped Carter’s environmental team; commitment to the cause, professionalism, and decency, not personal disappointment, governed his behavior. Leon functioned as sort of a junior partner to Muskie, in Nicoll’s observation, and in 1978 Muskie made Leon his administrative assistant, partly because Leon would level with, and argue with, him.

Integrity guided Leon in his work. His intellectual honesty infused countless memos and briefings in which he told Muskie and other senators what he knew and didn’t know, the strengths and weaknesses of various arguments, and the likely consequences of available options. Candor created credibility and invited reliance, by Muskie and others, Democrat and Republican.

Leon understood legislative politics and was committed to problem-solving through civil and rational communication to reach consensus. He arranged hearings to educate all members. “Leon wanted all of the senators to be engaged and to learn. He wanted every member to be on board,” recalls fellow staffer and long-time friend Eliot Cutler. He appreciated political communication as a two-way street and spent time anticipating and resolving issues, often before members raised them. To Leon, “there wasn’t a barrier that couldn’t be solved,” says Jorling. “There was a way to address it, to resolve it. Leon was very skilled at addressing issues.” Like Muskie, Leon worked to make the air and water legislation appeal to an overwhelming bipartisan consensus, notwithstanding their novelty and strength.

Finally, Leon understood that governance required continuing engagement. Leon helped create the legislative history, remembered it and invoked it to remind others why the environmental laws were crafted as they were. Laws needed to be implemented and revised to reflect experience. That required ongoing legislative oversight, especially in a novel area like the environment. And achievements needed protection from counter assaults. Upon receiving an award in March 1981, Leon admonished that environmental values “are not always shared values and they cannot be taken for granted. So we must restate our objectives. We must reprove our case. But most of all, we must regenerate political support for these values.” Leon was a democrat as well as a Democrat.

With Muskie, Leon left the Senate for the Department of State in May 1980, and then, as he sometimes put it, was privatized by Ronald Reagan’s 1980 election. Leon remained in the political arena. He became executive director of the Democratic Senatorial Campaign Committee (1982-83), advised the Mondale presidential campaign, and unsuccessfully sought the Democratic nomination for an open seat in the House of Representatives in 1986.

Leon was appointed to his wife, Pat’s, seat in the Maryland House of Delegates in January 1991 after her death from cancer. Her pro-choice position had been central to her 1990 campaign, and Leon’s support for abortion rights legislation addressed that commitment. He served in the state legislature until 2003. Always the environmental entrepreneur, he leveraged his green credentials and state legislative service to found the National Caucus of Environmental Legislators in the mid-1990s.

Leon continued to write about the environment and good political and legislative practice, served on various boards to honor Muskie, protect the environment, and advance other causes dear to him, advised officeholders, and remained civically active. And a man who once met with presidents and travelled the world with Muskie found fulfillment in teaching the next generation, with Jorling, about “The Origins of Environmental Law” at Columbia, Yale, University of Maine Law School, and Arizona State and lecturing elsewhere.

Leon’s death came one week after the 2016 presidential election while he and his wife of 21 years, Cherry, visited a grandson near Nashville.

Twenty years earlier, Leon had accepted an honorary degree awarded Muskie posthumously. Leon told the graduates that when young, Muskie had been advised that “if you are going to be in this life, be a part of it.” Muskie regarded public service as “a calling, not a job,” grew uniquely as he aged, asked Americans “to trust each other,” believed “the art of politics” was “to attract people by the quality of ideas” not by money, regarded the environment as a “public resource” and was an environmentalist because it was “right” not “expedient,” and believed “government has an activist, affirmative role in the lives of our citizens.” Muskie, Leon said, would counsel, “Commit yourself to principles and fight for them. And leave this life with your integrity intact.” Muskie had done so, Leon said, and “was a giant for our times.”

In recounting Muskie’s values, Leon revealed his own, and Leon’s descriptions of Muskie captured some of his own qualities and accomplishments. Leon, too, was a great public servant and democratic citizen, as well as a wonderful, big-hearted and generous guy. It’s our challenge to, as he said of Muskie, “live to his standard and to maintain his stewardship.” TEF

TESTAMENT Fifty years ago, it took not only great politicians like Democrat Edmund Muskie and Republican Howard Baker to get the signal pollution statutes passed by huge, bipartisan majorities, it took superb staff work. Leon G. Billings ensured the laws were powerful, implementable, enforceable — and able to adapt to new challenges.

Democrats Must Manage Big Expectations
Author
Robert Sussman - Sussman & Associates
Sussman & Associates
Current Issue
January-February 2021
Issue
1
Parent Article
Can Biden Get the Job Done?

Environmentalists celebrated Joe Biden’s victory with a mix of hope and relief. The Trump years took a deep toll on progress. With no prospect of common ground, environmentalists and their Democratic allies waged four years of trench warfare in courtrooms, Congress, and the media to stop the many rollbacks. The end of the Trump presidency enables Democrats to move to higher ground and look toward a new beginning.

Restarting progress, however, will be daunting. The assault on Obama programs was more extreme than in any previous transition of power, so the work of recovery will be harder and take longer. EPA and other agencies are deeply damaged institutions that have lost valued employees, abandoned established precedents, and sacrificed independence and integrity. New leadership will need to rebuild morale, re-empower the workforce, and reset norms.

An essential part of rebuilding will be a strategy to evaluate the Trump administration’s executive orders and rules. Though unavoidable, this process is fraught with difficult choices because of the sheer volume of actions that may warrant reconsideration. At EPA alone, they include regulations on vehicle emissions, methane emissions, power plants, coal ash, Waters of the United States, chemical risk management, and emergency planning and response. Because of limited bandwidth, the balance between undoing Trump policies and affirmatively addressing new challenges must be carefully managed. Otherwise, reworking rules could easily consume the greater part of the president’s term and divert energy from a forward-looking agenda. Moreover, simply replacing Trump rules with Obama-era versions may be unwise, given changes in the legal, political, and economic landscape. The Clean Power Plan, for example, may no longer be the best tool to achieve reductions in power plant warming emissions.

Biden environmental policymakers will also need to negotiate a closely divided Congress and fissures within Democratic ranks. Before the election, hopes were high that a resounding Democratic victory would create an opening for comprehensive climate and clean energy legislation. However, this prospect has dimmed, with a smaller Democratic margin in the House and a closely divided Senate. Reality will compel the Biden administration to lower its sights and look for narrow areas of agreement with Republicans, perhaps involving incentives for advanced technologies and infrastructure investments rather than direct mandates.

Partnerships with industry will also be critical in light of traditional Republican ties to the business community and the growing embrace of a clean energy future by electricity suppliers and vehicle manufacturers. These industries might be amenable to locking in ambitious greenhouse gas reduction goals that converge with their investment strategies and voluntary commitments in return for regulatory certainty and a level playing field.

With climate as a top priority, Biden will be under enormous pressure to deliver. It will be tempting to demonstrate progress by issuing executive orders and creating interagency task forces. However, these steps will not insulate the new president from criticism if U.S. greenhouse gas emissions are not on track to decline significantly in this decade. While rejoining the Paris climate agreement will buy the administration good will, it will quickly evaporate if the country falls short of its 2025 emission-reduction targets. Thus, the new president cannot afford to rely on long-shot legislation or top-down regulations that take years to work their way through the courts. He must adopt pragmatic approaches that are both politically viable and pay immediate dividends.

Complicating this balancing act is the emergence of an environmental stakeholder community that is more diverse and less monolithic than before. The surge of grassroots activism in the last four years is healthy but will put a special burden on the Biden team to mediate among different agendas and temper expectations that are difficult to fulfill.

Preparing for Climate Disasters
Author
David J. Hayes - NYU School of Law
Jessica Grannis - National Audubon Society
Sarah Greenberger - National Audubon Society
NYU School of Law
National Audubon Society
National Audubon Society
Current Issue
January-February 2021
Issue
1
Preparing for Climate Disasters

The United States knows how to respond to disasters. When calamity strikes, the Federal Emergency Management Agency swings into action, opens the national coffers, and leans on state governments to deliver relief supplies to affected communities. The execution occasionally falters, but the playbook is familiar and, by and large, sound.

The dramatic increase in the frequency and severity of natural disasters, however, requires writing a new chapter in the playbook. Climate change has converted what were formerly 100-year and 500-year storms and floods into common events, triggering fiscally irresponsible repeat spending on disaster after disaster. The United States is beginning to acknowledge this new reality and chart a path toward more deliberate preparation for climate events by engaging in pre-disaster planning, and investing in resilient infrastructure that can adsorb big hits — saving money, life, and limb in the process.

Congress has recognized that fiscal prudence demands this result. With studies showing that every dollar spent on hazard mitigation saves six dollars in future disaster costs, Congress has quietly been accompanying billion-dollar post-disaster relief appropriations with more limited (but not insignificant) pre-disaster mitigation funding. Then, in a breakthrough Congress in 2018 enacted the Disaster Recovery Reform Act, which anticipates that FEMA will set aside up to six percent of all money appropriated to disaster relief to support investments in pre-disaster planning and infrastructure. This new program, called Building Resilient Infrastructure and Communities, appropriately known as BRIC, is just gearing up now. When fully launched, the program will direct billions of dollars toward making our communities more resilient and more capable of responding to disastrous storms and floods.

While this new program is necessary and appropriate, the United States is not set up to maximize its beneficial impact. Unless it provides much more significant planning and execution assistance than is now available, FEMA could transfer billions in ill-conceived hazard mitigation grants to states, tribes, local communities, and territories, representing a massive lost opportunity.

The incoming Biden administration must not allow this to happen. We know what can go wrong. FEMA and other first responders who are expert in implementing post-disaster efforts are not as skilled in identifying and evaluating long-term resilience solutions. Too often, pre-disaster hazard mitigation money flows to familiar, off-the-shelf engineered projects — whether they represent the best long-term solutions or not. Traditional economic tools ignore or under count ecosystem benefits, community preferences, and other less easily monetized benefits. And frontline communities that face disproportionate risks from disaster events may not even be consulted and, if they are, have limited resources or capacity to participate in the decisionmaking process.

Unless addressed, these shortcomings will haunt FEMA’s new program. Without an organized repository of information on existing threats and emerging best practices, a regularized structure that solicits and evaluates promising investment alternatives, and systematic follow-up that tests and records whether resilience projects provide promised benefits, billion-dollar mistakes will continue to be made.

For vulnerable coastal areas, these missing programmatic elements mean that gray infrastructure projects like sea walls and other armoring techniques will continue to scarf up a disproportionate share of resilience spending. FEMA already has demonstrated its propensity to be stuck in the do-loop of rebuilding communities in flood zones again and again — particularly after the Trump administration rescinded the Federal Flood Risk Management Standards that would have required communities to consider future flood risk when rebuilding.

This article reviews these issues and offers recommendations for how to maximize the effective disbursement of the billions that FEMA and other federal agencies will be spending to improve the resilience of vulnerable coastal resources and infrastructure. We focus on investments in coastal infrastructure because we know that under its new BRIC program, FEMA will be providing large pre-disaster mitigation grants to states that are being hammered by sea-level rise and climate-infused mega storms. Also, in the aftermath of recent hurricanes and the Deepwater Horizon oil spill, a large number of coastal resilience projects already are underway along the Eastern Seaboard and in the Gulf of Mexico, providing a rich source of new data and experiential learning that can and should inform the future direction of FEMA’s new grant program and other pre-disaster resilience spending.

After Hurricane Sandy, for example, the Department of Housing and Urban Development led the innovative National Disaster Resilience and Rebuild by Design competitions, while the Department of the Interior and Fish and Wildlife Service invested more than $300 million in coastal resilience projects across the Northeast and Mid-Atlantic. Likewise, after Hurricane Harvey, Congress provided over $28 billion to HUD to support recovery in lower-income communities, and set aside $12 billion to help these neighborhoods mitigate risks from future disasters. The National Oceanic and Atmospheric Administration has ramped up its National Oceans and Coastal Security Fund to invest in myriad restoration projects following other hurricane disasters. And the Deepwater Horizon oil spill disaster spawned settlements that have allocated a jaw-dropping $16 billion toward coastal and ocean-related environmental and economic restoration activities in the gulf.

Although our focus is on coastal investments, the principles identified in our article have equal bearing in other disaster-prone contexts, including wildfires, inland flooding, tornados, and other extreme weather events made more common by climate change.

The year 2020 was a record-breaking period of natural disasters, closing out two decades in which the United States has seen hundreds of billions in economic losses and thousands of fatalities. Warmer coastal waters and rising seas are increasing the intensity of weather events, driving storm surges further inland, and unleashing biblical-scale rain events in communities like Houston. And these disasters are disproportionately affecting low-income neighborhoods and communities of color. Economic inequality, lack of investment, and proximity to pollution all exacerbate threats from climate-related disasters, which was demonstrated this year with deadly consequence as a triad of storms successively hit Southwest Louisiana — a region that is already overburdened with pollution due to its prevalence of heavy industry. Scientists predict that more devastation is in store as the planet continues to warm, estimating that without action the United States stands to lose nine percent of its GDP by 2060 — equal to the economic losses recorded during the COVID-19 pandemic, but repeated year after year.

These statistics expose the need for new approaches to how communities recover from and rebuild after disasters. We know that because of the impetus to quickly “get things back to normal,” federal funders and grantees make numerous mistakes, including often turning to outdated, environmentally harmful approaches to protect coastal communities and resources — like rebuilding in harm’s way and relying heavily on gray infrastructure such as levees and sea walls.

The challenge and opportunity provided by the upcoming flood of federal dollars toward pre-disaster hazard mitigation activities calls for a much more systematic and disciplined approach. FEMA and other federal funders should be pushing states and other governmental entities to engage in planning so they can effectively deploy resilience dollars as soon as they become available. They also should be encouraging their grantees to adopt a variety of additional reforms, including increased use of nature-based resilience strategies. Another measure is the development of metrics to measure and verify the effectiveness of resilience projects. They need to provide a clearinghouse and mapping services to help grantees understand their vulnerabilities and learn from the experience of others, while ensuring that all communities — especially disadvantaged ones — have a strong voice in deciding how hazard mitigation dollars are spent. Finally, agencies need to expand private-sector support for these strategies.

It is intuitively obvious that states that have thought ahead and developed sound plans to protect coastal resources will be better positioned to take advantage of FEMA’s BRIC grants and other funding opportunities. Experience backs up this supposition. Louisiana, for example, has developed a comprehensive Coastal Master Plan that provides a science-based frame for directing investments. The plan includes innovative nature-based strategies for enhancing coastal ecosystems and reducing flood and sea-level rise risks.

Louisiana has turned to its CMP to effectively direct funding to well-planned projects, including multiple million-dollar resilience projects that are being funded from the Deepwater Horizon oil spill settlement. For example, Louisiana is building sediment diversions that will redirect silt and sand being carried down the Mississippi River to rebuild protective marshes in areas like the Barataria Bay and Breton Sound. Other gulf states that did not have mature state plans in place had to scramble to come up with appropriate projects for Deepwater Horizon settlement funds.

Although states and local governments must develop hazard mitigation plans to receive FEMA funding, they should be encouraged to develop more comprehensive climate resilience plans — and governments with such plans should be prioritized for federal funding. Federal agencies should also provide technical assistance and guidance to help states and communities develop robust plans and design resilience projects that can be implemented quickly in the aftermath of a disaster. Such plans should consider future climate risks and identify strategies for building long-term resilience. Plans also should consider risks to both the natural and built environments and identify ways of preserving and restoring natural assets as a means of reducing risks and enhancing resilience for both people and wildlife. Needless to say, states with robust resilience plans will be better able to quickly deploy scarce resources and deliver more cost-effective projects that generate multiple benefits for vulnerable communities.

The Obama administration’s launch of a $1 billion National Disaster Resilience Competition after Hurricane Sandy provides evidence that supporting state planning and project design efforts can pay dividends. The Rockefeller Foundation brought in a range of experts who trained and helped state and local applicants develop innovative resilience projects that addressed multiple community challenges. In New Orleans, for example, the city is reintegrating nature, using green infrastructure approaches to improve stormwater management, reduce flooding, and create recreational amenities in underserved neighborhoods.

States should be encouraged to leverage other funding sources and take regulatory and incentive-based approaches to complement federal investments. FEMA and other federal agencies should consider using the carrot of federal funding to incentivize state and local governments to adopt proactive approaches. Some states already are putting in place new programs that consolidate disparate funding sources and operational capabilities to focus on resilience priorities. For example, South Carolina recently passed legislation to create an Office of Resilience to coordinate planning activities, and a Resilience Revolving Fund that will combine state and federal resources and support investments in floodplain buyouts and restoration efforts that reduce flood risks in communities. FEMA should use its BRIC program to reward states that put some of their own skin in the important resilience game.

Another important step is to advance nature-based approaches. FEMA and other federal agencies making coastal resilience grants should insist that states propose the deployment of natural infrastructure projects in concert with, or as an alternative to, gray infrastructure. The federal government should explicitly acknowledge and credit the additional benefits that typically accompany such nature-based solutions. By signaling its preference, the feds will encourage states to take such projects seriously.

To achieve this end, we need to remove outdated federal rules that present roadblocks to natural infrastructure approaches. Although FEMA recently changed its policy to allow for the inclusion of ecosystem service benefits in required benefit-cost analyses — with the specific goal of “allow[ing] for easier inclusion of nature-based solutions into risk-based mitigation projects” — that is easier said than done. Ecosystem service benefits are notoriously difficult to monetize. Modelling that is out-of-reach for most applicants is often needed to demonstrate the risk reduction benefits of nature-based projects. Even then, without more aggressive retooling of benefit-cost expectations and discount rates, federal agencies are likely to continue to overvalue the benefits of environmentally harmful short-term solutions like shoreline armoring while not fully accounting for the environmental and social benefits delivered by natural solutions.

One way to address this problem is for FEMA and other federal agencies to fund demonstration projects that test the efficacy of these approaches while providing case examples of monetized ecosystem service benefits, meanwhile overhauling benefit-cost rules that present roadblocks. For example, FEMA could set aside a significant percentage of its mitigation funds for natural infrastructure projects, similar to the green project reserve that requires 20 percent of water infrastructure funding for green stormwater management approaches. This would help demonstrate the effectiveness of these nature-based approaches for reducing flood risks, and also build capacities at all levels of government to design and implement natural infrastructure projects.

When tens of millions are being invested in improving coastal resilience from climate and other impacts, federal funders and local communities alike need to know that taxpayer dollars are being spent wisely. Accordingly, it is important to identify and estimate the social, economic, and environmental benefits that may be associated with various coastal resilience strategies and then to evaluate, over time, whether projects are delivering the expected benefits.

As noted above, this exercise can require the development of sophisticated methodologies that credit the “natural capital” benefits that may accrue from nature-based coastal solutions (such as improved water quality, fishery and avian benefits, blue carbon, etc.), as well as social and economic benefits that may be tied into community preferences and job opportunities. With the assistance of federal scientists, NGOs, academic centers, and grantees, FEMA and other federal agencies need to develop methodologies and metrics that can be used to measure and verify the full range of potential project benefits.

Significant attention also needs to be paid to monitoring project performance. FEMA’s soon-to-be well-funded BRIC program is well-positioned to provide money for the deployment of monitoring protocols for resilience projects. Other federal authorities engaged in approving resilience projects, like HUD, Interior, and NOAA, need to be doing the same. Monitoring data and adaptative management experience must then be made available for agencies at all levels to identify gaps, learn from experience, inform investment and reforms, and establish best practices that can be scaled and replicated.

While the federal government should not use its funding leverage to dictate state decisionmaking, the feds can, and should, use their unique vantage to disseminate information about successes and failures of resilience planning and execution practices all around the United States. This will help planners identify best practices and benchmark their projects.

The federal government can contribute this valuable service by building upon approaches like the U.S. Climate Resilience Toolkit and NOAA’s Digital Coast. The concept would be creating a comprehensive adaptation clearinghouse that catalogues and provides benefit-cost and performance data regarding hundreds of coastal protection (and other climate-related) resilience projects. Such a clearinghouse would include detailed information about projects in an accessible format that would enable users to efficiently gather and test out ideas that have been tried in different jurisdictions. Such a clearinghouse also would facilitate direct contacts with state sponsors and project managers, obviating the frustrating sense that jurisdictions are being left to invent the wheel on their own.

As a helpful step for affected agencies and communities, the feds should augment a climate adaptation clearinghouse with a centralized GIS-based mapping service that pulls together data so that states and other interested governments and individuals can evaluate the vulnerability of their communities as well as explore resources in their regions that can reduce climate-related impacts.

In doing mitigation right, it is vital that communities have a voice in decisionmaking. Failures to meaningfully engage with neighborhoods regarding pre-disaster planning and post-disaster responses have led to disparities in recovery outcomes for low-income communities and communities of color. Research has shown that communities of color often never fully rebound after experiencing impacts from extreme weather and are often left worse off than their White neighbors, who have an easier time accessing aid and receive higher disaster payments.

FEMA and other federal agencies involved in funding hazard mitigation planning have a responsibility to provide the resources that communities need to fully consider socioeconomic vulnerabilities and to direct investments to frontline communities that face the greatest threats from climate impacts. To ensure that marginalized communities have a voice in decisionmaking, agencies should provide sustained funding for community-based organizations that can lead planning processes and support meaningful engagement between government decisionmakers and residents.

Louisiana’s Strategic Adaptations for Future Environments initiative provides an example of this type of effort. LA-SAFE is implementing a range of innovative coastal resilience projects that were selected after an extensive, year-long community engagement process that was co-designed and directed by residents of six coastal parishes that were hard hit by Hurricane Isaac in 2012. These community-driven projects were only made possible because of significant funding from HUD and the support of regional philanthropy and academic and nonprofit partners.

Thus, FEMA’s BRIC program and other federal sponsors should provide funding that will enable underserved communities to participate fully in hazard mitigation planning and implementation activities. More generally, Congress should consider increasing the federal cost share for mitigation and resilience investments in economically underserved communities to ensure that resources are being directed to the most at-risk communities. Economically distressed and tribal communities often struggle to raise the needed match, which limits their ability to leverage federal funds to support important investments. While FEMA mitigation programs offer a 90 percent federal cost share for smaller rural communities, larger economically distressed communities still must raise a 25 percent match. Congress should extend more favorable federal cost share to economically disadvantaged communities of any size.

Siloed decisionmaking at the federal level also is limiting the ability of states and communities to identify and implement holistic projects that comprehensively address community challenges. By helping to coordinate funding, permitting, and environmental reviews, federal agencies can support better projects on faster timelines.

Experience confirms that this can be done. After Hurricane Sandy, technical coordinating teams were established to improve coordination among federal agencies administering disaster relief funds and their state counterparts. These teams helped align funding to support a more comprehensive disaster recovery in affected communities. Teams also were established to coordinate permitting across federal agencies and to work with project leads to help them navigate rules and more quickly advance projects. A similar model is being employed in the San Francisco Bay region to coordinate state and federal permitting agencies and speed implementation of restoration and resilience projects that are being funded through Measure AA — a regional parcel tax that is generating $25 million annually to support investments in ecological restoration around the San Francisco Bay.

State and local governments cannot do this work alone. The private sector — including philanthropy, nonprofits, academia, and businesses — also have important roles to play in supporting and enhancing public-sector efforts to build climate resilience. The federal government should support and encourage the private sector to dedicate resources and talent to collective efforts to address the climate crisis.

The Rockefeller Foundation’s collaboration with HUD and its support for the National Disaster Resilience Competition is one model. Conservation land trusts — like Katy Prairie Conservancy in the Houston region — are also supporting flood resilience initiatives by acquiring flood-prone properties and restoring natural ecosystem functions. And nonprofits like Audubon are working with community-based partners to provide technical support and assistance to help neighborhoods design natural infrastructure that enhances climate resilience for both people and wildlife. For example, Audubon California is working with Shore Up Marin City — a multi-racial environmental coalition in a lower-income community in Marin County — to design and restore tidal wetlands that will reduce flood risks and also provide other environmental and recreational amenities in an underserved community. Federal programs should remove barriers to and create incentives for the private sector to support state and local resilience efforts in these ways.

With significant new resources flowing to efforts to reduce risks before disasters strike, the Biden administration has an important opportunity to ensure that state and local governments have the funding and capacities needed to create effective projects that will meet multiple community needs. By implementing the common-sense approaches above, the Biden administration can ensure that communities have the tools and resources needed to build a better future. TEF

LEAD FEATURE With new funding to reduce risks before calamity strikes, the Biden administration has an opportunity to ensure that state and local governments have the resources and capacities needed for effective mitigation projects that will meet multiple community needs.

Check List for Good Science Policy in Incoming Biden Administration
Author
Craig M. Pease - Scientist and Former Law School Professor
Scientist and Former Law School Professor
Current Issue
January-February 2021
Issue
1
Craig M. Pease

Many advocating “good science” are just bludgeoning political opponents with a convenient cudgel. Here are six indicia to evaluate just how committed the Biden administration really is to good science:

Character and integrity of senior leadership. The most sure way to drive away good scientists, to produce mediocre science, and to just plain wreck any institution is for senior management to operate without character and integrity. All scientists continually struggle to overcome their own preconceptions, favored hypotheses, and hubris. It is part and parcel of the scientific method. Institutional culture can get in the way of that process.

For most positions, it matters not if the political appointee is a scientist. The indicator is only that every political appointee meet the standard of Admiral William McRaven, who in retirement from the military became head of the University of Texas. In making decisions, a leader must ask “Is it moral, is it legal, and is it ethical?”

Executive orders and federal advisory boards. Check to see if the new president quickly reverses various executive orders and memoranda impeding the use of science in federal decisionmaking. This includes EO 13875 (reducing by one third the number of advisory committees), Department of Interior Order 3389 (restricting what types of scientific data and studies the government considers), and a 2017 EPA directive stayed by a court order last year (prohibiting scientists receiving EPA funding from serving on its advisory committees).

The outgoing administration made a mockery of science boards, in particular the Clean Air Science Advisory Committee, stacking membership with ideologues, industry shills, and former lobbyists. See the 2018 comments of former CASAC Chair Bernard Goldstein (who served under President Reagan). He notes the circumstance that no current CASAC member is an epidemiologist. Check if the incoming administration moves to reconstitute disbanded boards and appoint quality scientists.

Acting when the science is clear. Science by its nature is uncertain. Almost always, a broad range of policy and regulation is consistent with good science. When the science really is compelling, and the statutory mandate is clear, does the executive branch act? The outgoing administration refused to lower the primary National Ambient Air Quality Standards for PM2.5 and for ozone despite overwhelming evidence of large gains in public health.

Use administrative discretion to promote good science, not circumvent it. The Sage-Grouse is an indicator species for the entire western high desert ecosystem. The outgoing administration, rather than listing the bird under the Endangered Species Act, issued a “warranted but precluded” finding, which is permissible under the statute. Check to see if the incoming administration uses its administrative discretion to avoid acting when the science is clear.

Honesty when the science does not support one’s politics. It will be easy for the incoming administration to support good science, as such broadly favors Biden’s political ideology of environmental protection. For a counterexample, we have to go just a little outside mainstream environmental law and policy to another public health issue, gun control. This issue is of real importance to rural residents of the western states, where some 46 percent of the land is under federal ownership and management.

The scientific literature on gun violence is weak. There are severe practical limits on study controls and experimental manipulation in social science research, blocking strong study design. This limits the application of social science results to policy. It should not be invoked to support gun control.

Accepting climate change — and thermodynamics. The criterion of success here is simple: Stopping the growth of the level of atmospheric carbon dioxide, now at 415 parts per million.

The opponent is not the Republican Party, but the laws of thermodynamics. The U.S. economy is what physicists call a dissipative structure. To subsist, all dissipative structures — be they the U.S. economy, a mouse, or a hurricane — require an energy source (fossil fuels, cheese, and warm ocean water, respectively). When its energy source is cut off completely, or reduced below some threshold, all dissipative structures will collapse and die. No exceptions. If the new administration reduces fossil fuel use, it will lower GDP. Nuclear engineer Jimmy Carter was the last president to speak honestly about reducing energy use. He was not re-elected.

We shall see. I express cautious optimism, but in truth I despair of ever living in a society where all leaders broadly meet the McRaven Standard.

Check List for Good Science Policy in Incoming Biden Administration.

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