Our quality of life is heavily influenced by the quality of our environment. Whether we want to keep the beauty and quality that we have, or we want to change and clean up those areas of our environment that have been compromised, environmental quality is inextricably bound up with our sense of the quality of our lives. Yet, this comes with a cost.
In response to growing concerns over increased air and water pollution, by the early 1970s the United States Congress had begun enacting a series of statutes that continue to shape environmental law today, more than four decades later. The laws authorize federal agencies to regulate air quality, water quality, the management and disposal of solid and hazardous wastes; and to protect threatened or endangered species of plants and animals. Congress, in enacting these environmental laws, knew that it was imposing significant compliance costs on regulated sectors of the economy.
2017’s extreme hurricane season is a reminder that such storms are the new normal. Communities will need to become resilient to consequences. ELI can help.
In the aftermath of floods and major storms, property owners are faced with a tough choice — to stay and rebuild in place or leave and rebuild on higher ground. An incentive for homeowners is to participate in a floodplain buyout program, such as the voluntary Federal Emergency Management Agency mitigation buyout program or state or local floodplain acquisition programs for destroyed homes and neighborhoods.
Once properties are acquired through these programs and existing structures removed, the land is typically dedicated to open space or recreational or wetland-management uses. Local governments often take ownership, but they have neither funding nor guidance on what to do with the properties over the long term. The result is that key opportunities are missed to leverage the environmental and flood-mitigation benefits of these properties.
Since 2013, ELI and the University of North Carolina Institute for the Environment have worked to increase knowledge and provide guidance to local governments and communities on how to use buyout programs to maximize the environmental and flood-mitigation benefits of acquired properties.
Building on our expertise, at the end of 2017 ELI and UNC released two guidance documents for local governments and communities. The first guide, Prioritizing Future Floodplain Acquisitions: Maximizing Opportunities for Habitat Restoration, Community Benefits, and Resilience, provides ideas for planning floodplain acquisitions and related projects in order to maximize community benefits. While buyouts are primarily intended to address flood damage to communities in the short term and mitigate future risks, secondary, longer-term benefits can include restoring habitat, rehabilitating ecosystems to improve water quality, and creating recreational spaces. By prioritizing eligible future buyouts, communities can develop more comprehensive mitigation projects and broaden their options for the management and use of acquired properties.
The ELI-UNC report provides a summary of prioritization criteria and methods that communities are using to make the most of these buyouts today, along with a four-step outline for integrating broader community goals into hazard mitigation and acquisition planning.
The second guide, Financing and Incentives Guide for Floodplain Buyouts, focuses on how local governments and communities can fund the acquisition and management of damaged properties.
The primary federal sources of funding for acquisitions are often only available after declared disasters, and often are not sufficient to purchase all eligible properties from willing sellers. Further, federal acquisition programs are usually matching funds for buyout projects provided by state and local governments or other entities. As a result, there are often more property owners willing to sell than are funds available.
Funding also represents a major challenge to managing and restoring properties to successfully leverage all the benefits of floodplain buyouts. Because of these challenges, most acquired properties remain as vacant, unimproved lots.
While available funds vary by state and locality and can depend on budgets, some communities have found creative ways to fund acquisition and management of open space properties. Based on a review of innovative approaches to make floodplain acquisitions a reality, ELI and UNC provide an overview of the sources and types of funds that exist and how they can be used to contribute to acquisition projects. The analysis offers a concise summary of how to approach this critical component of a successful buyout project.
In 2017, ELI released a background paper on Fast-Tracking ‘Good’ Restoration Projects in the Gulf of Mexico, which focused on mechanisms available to speed restoration projects that are subject to federal environmental requirements. The Institute’s research indicated that as the pace of restoration accelerates, resource constraints are likely to become a barrier to timely action and efficient environmental compliance.
ELI recently published a follow-up to that work, addressing this resource deficiency conundrum. Fast-Tracking Restoration: Addressing Resource Constraints in Federal Agencies focuses on how agencies may be able to supplement their internal budget and personnel resources in order to increase the efficiency of the compliance process.
In general, federal agencies can only expend funds allocated to them through the congressional appropriations process. There are exceptions. ELI’s guide explains the circumstances in which federal agencies are allowed to accept outside funds or share personnel with other entities. Appropriately applied, these provisions may assist federal agencies overseeing gulf restoration in addressing at least some of their resource constraints related to environmental compliance.
The backgrounder explores legal provisions to allow government agencies to accept non-federal funds that can be used to expedite activities related to permitting and other environmental compliance activities, and it highlights mechanisms for intergovernmental transfer or loan of personnel engaged in environmental compliance activities to increase capacity without expending funds.
The backgrounder reviews hiring third-party contractors to prepare documents required for federal permits, approvals, or funding, paid for by the applicants, in place of agency review.
Finally, the report suggests attendance at non-profit training activities by government employees involved in environmental compliance activities, where those needs are not already being met.
ELI also provides examples of instances in which these provisions have been used in projects.
By being strategic about the use of existing resources and creating new ones, federal agencies may be able to move restoration projects forward at the rate necessary to rehabilitate the environment and livelihoods of gulf communities.
Last fall, Senator Cory Booker (D-NJ) and Representative Raul Ruiz (D-CA) introduced the Environmental Justice Act of 2017. The bill would require federal agencies to address environmental justice through agency actions and permitting decisions, and strengthen legal protections against environmental injustice for communities of color, low-income communities, and indigenous communities. The measure is the culmination of a months-long process of working with dozens of grassroots organizations across the country to craft a comprehensive bill that strengthens environmental justice protections for vulnerable communities.
ELI hosted a panel discussion co-sponsored by the ABA Section of Civil Rights and Social Justice’s Environmental Justice Committee, the ABA Section of Environment, Energy, and Resources’ Special Committee on Environmental Justice, and Beveridge and Diamond, P.C.Booker gave the keynote address, focusing on the various ways the bill addresses critical issues for vulnerable communities nationwide.
He highlighted the connection between social justice issues and environmental problems. Booker started his career as an activist for issues of poverty, but saw “unconscionable” harm to the environment in his own backyard, such as lead contamination and water pollution, that stemmed in part from racism and disadvantage.
“I didn’t become an environmentalist because I was worried about global warming,” he said. “I didn’t become an environmentalist because I was concerned about penguins or polar bears. I became an environmentalist because I was living in Newark,” where environmental problems were disproportionately cast on disadvantaged communities.
Following the senator’s address, the cosponsors held a discussion with Mustafa Ali, vice president of climate, environmental justice, and community revitalization for the Hip Hop Caucus and formerly head of the EPA’s Office of Environmental Justice, and Patrice Simms, vice president of litigation for Earthjustice.
The program was moderated by B&D’s Randy Hayman.Topics included changes at EPA’s Office of Environmental Justice, attempts to limit science in agency decisionmaking, and challenges to environmental protection for clean air, water, and land via measures that could curtail citizen suits and enforcement.
ELI has received approvals from China’s Ministry of Environmental Protection and the Beijing Bureau of Public Security to begin work on a project to build the capacity of NGOs to more fully engage in environmental litigation. The project is supported by the Hewlett Foundation and the Tilia Fund.
Chinese law grants authority to NGOs to file these types of suits. ELI will work with its local partner, the China Environmental Protection Foundation, to build the capacity of public interest groups in China to file and win environmental cases, ensuring accountability and improvements in environmental quality. With this final procedural step in place, ELI cohosted its first workshop in January.
Receiving this approval is a major reflection on ELI’s international reputation in promoting effective environmental governance and rule of law, as ELI is the first foreign NGO to receive temporary registration for an environmental protection-related project from the MEP under China’s foreign NGO law. It is also demonstrative of the excellent work of CEPF.ELI expects to receive additional temporary registration with other China-based partners to further expand the Institute’s growing work with governmental agencies and others in China.
ELI expects to receive additional temporary registration with other China-based partners to further expand the Institute’s growing work with governmental agencies and others in China.
❧ ELI Visiting Scholar Carol Adaire Jones moderated a session on Tackling Wasted Food With Smart Technology hosted by the Solid Waste Association of North America. The session brought together speakers from organizations and companies that employ new and innovative uses of smart technologies to reduce food waste. The session focused on issues surrounding EPA’s Food Recovery Hierarchy of reduction (preventing wasted food at the source), reuse (donating wasted food leftovers) and recycling (as energy or nutrient products following processing).
❧The Antiquities Act grants presidents the authority to protect historic landmarks, structures, and objects of historic or scientific interest, and restrict uses of that land accordingly. The statute is ambiguous, however, as to whether the authority to reduce or modify these national monuments rests with Congress or the President — and the courts have never ruled on this particular issue.
Yet, last April, more than 50 years since the last alteration of national monument boundaries, President Trump issued an executive order instructing the Interior Department to undertake a broad review of national monuments created since 1996 that are larger than 100,000 acres. Based on the review, two proclamations significantly reduced the perimeters of Grand Staircase-Escalante and Bears Ears national monuments.
ELI explored these legal questions at an ELI Associates Seminar, Antiquities Act: Legal Implications for Executive and Congressional Action. Speakers explored issues surrounding presidential authority and the role of Congress in the declaration and modification of national monuments. Participants gained insight into the legal history of the law, importance of America’s national monuments, and the role of Congress in management of these lands.
Aiding communities flooded by storms, sea-level rise.
Rich Bard serves as executive director of the Scarborough Land Trust. He comes to the land trust from serving as executive director at Downeast Coastal Conservancy.
The Renewable Fuels Association has hired Jessica Bennett as vice president of external affairs. She comes to the association from the National Corn Growers Association.
The Senate confirmed Susan Bodine, former chief counsel for the Senate Environment and Publics Works Committee, as assistant administrator for the Office of Enforcement and Compliance Assurance.
Margaret Bowman is now director of environmental sustainability at Spring Point Partners LLC. Before this she was principal in Bowman Environmental Consulting. Margaret was a senior attorney at ELI in the 1990s.
Laura Cantral leaves the Meridian Institute and takes a new position as the executive director of the Coastal Conservation League in South Carolina.
Former Energy Secretary and ELI Award winner Steven Chu is president-elect of the American Association for the Advancement of Science, where he will serve a three-year term.
Boutique firm EKM Law PLLC welcomes Bicky Corman to its Washington, DC, office. Corman is a former EPA deputy general counsel.
Beveridge & Diamond PC has scored the Obama administration’s top environmental lawyer for their firm. John Cruden enters private practice after serving as assistant attorney general of DOJ’s Environment and Natural Resources Division. Cruden is also former president of the Environmental Law Institute.
Alexandra Dapolito Dunn has been appointed EPA Administrator for Region 1, which oversees environmental protection efforts in much of the Northeast. Dunn previously served as executive director and general counsel for the Environmental Council of States. She is also a former board member of the Environmental Law Institute.
The White House nominates Frank Fannon as assistant secretary of state for energy resources. Fannon is an energy consultant and longtime Senate staffer.
The London office of K&L Gates has added an energy disputes team. Jeremy Farr, Charles Lockwood, and Clare Kempkens have been hired as the team members.
Jeremy Fisher is now senior advisor at the Sierra Club. He comes to the group from his role as a principal associate at Synapse Energy Economics.
Joseph Goffman has joined the Harvard Law School Environmental Law Program, where he serves as executive director. Goffman, formerly an EPA attorney, was one of the senior agency officials who designed the Clean Water Plan.
The Hill has tapped Miranda Hill, previously of CNN, to be an environment and energy reporter.
Andrew M. Hutson is the new director of the Fisheries Solutions Center at the Environmental Defense Fund.
Anna Ideal has been picked to lead EPA’s Region 6 Office, which serves the South Central states. Ideal previously has been chief clerk for the Texas General Land Office.
FTI Consulting Inc. has chosen Brian Kennedy to become head of the Americas division for the firm’s strategic communications segment. FTI has promoted Chris Tucker to take Kennedy’s place leading the company’s energy and natural resources offerings.
Sarah King, a former ELI research associate, transitions from corporate life to her new position as project manager at Climate Mayors. She joins the group from DuPont, where she served as manager of climate and sustainability.
Longtime aide to Senator Chuck Grassley, Ken Koverik now serves as the National Biodiesel Board’s vice president of federal affairs and head of the group’s Washington, DC office after serving in Sen. Grassley’s office since 1997.
Daniel P. LeFort switches firms from Eversheds Sutherland LLP to K&L Gates’s Houston office.
Founder and executive director of the Environmental Health Network Richard Liroff has retired. Alexandra McPherson, cofounder of Clean Production Action, has been chosen to be Liroff’s successor.
The Indiana University Robert H. McKinney School of Law appoints Janet McCabe, former EPA Clean Air administrator, as a professor of practice.
From the federal government to state government, Catherine McCabe, EPA’s former acting administrator, has been nominated for commissioner of the New Jersey Department of Environmental Protection.
The Earth & Water Law Group selects David Moore to run its new Atlanta branch. He joins fellow former EPA officials who staff the firm.
Duane Morris adds Lori A. Mills to its roster of partners in the Cherry Hill, NJ, office’s energy, environment and resources practice group.
Formerly of the Environmental Defense Fund, Roxanne Nanninga becomes the director of sustainability at Thai Union Group, where she will oversee client brand strategies, including traceability and consumer education.
John Passacantando has left his role as executive director for Greenpeace USA. He led the group for eight years.
Margaret Peloso has been hired by the Washington office of Vinson & Elkins LLP as a partner in its environment and natural resources practice.
Miles & Stockbridge continues its expansion in Washington, DC with the addition of Russell V. Randle, who joins the firm from Squire Patton Boggs.
Former ELI Executive Vice President Scott Schang joins the Seattle-based NGO Landesa as senior director of corporate engagement. Schang had previously served as editor in chief of the Environmental Law Reporter.
Moving from government service to the private sector, Christopher Smith, former Department of Energy assistant secretary for fossil energy, joins liquefied natural gas producer and exporter Cheniere Energy Inc.
Former director of the Wisconsin Department of Natural Resources Cathy Stepp has been named the head of the EPA’s Region 5 office in Chicago.
Author and water strategy expert Will Sami has founded and will serve as CEO of Water Foundry, a water strategy advisory firm for multinational corporations, NGOs, and water technology companies.
Matt Strickler leaves Capitol Hill, where he was a senior policy aide for House Natural Resources Committee Democrats, to be Virginia Governor Ralph Northam’s secretary of natural resources.
Bringing expertise from an international law firm and the Sabin Center for Climate Change Law at Columbia University, Marne S. Sussman joins as a partner in Holland & Knight’s San Francisco West Coast Land Use and Environment Group.
John Tran, previously of Unilever, joins wine and spirits company Pernod Ricard as director of sustainability and responsibility.
Lindi von Mutius joins the Sierra Club as chief of staff. She was previously the director of program management for the Environmental Defense Fund.
The Property and Environment Research Center announces that Florida utility executive Brain Yablonski will take the helm as executive director of the think tank.
Former top White House aide to President Obama Heather Zichal takes over as managing director of corporate engagement at The Nature Conservancy.
Joe Bonfiglio has been promoted to president of the advocacy arm of the Environmental Defense Fund, EDF Action. Bonfiglio has been at EDF for six years and previously served as associate vice president.
PennFuture promotes Jacquelyn Bonomo to serve as president and CEO. Before her new posting, Bonomo was the organization’s executive vice president and chief operating officer. She takes the place of Larry J. Schweiger, who retires from this role.
The Mexican Senate has awarded Julia Carabias the Prize Belisario Dominguez, recognizing her work conserving the Lacandon Tropical Rainforest and life contributions to science and environmental protection.
The Shikar-Safari Club International Officer of the Year Award has been presented to environmental conservation officer Tim Fay. Fay received the award for his dedication to his role as teacher and enforcer at the State Department of Environmental Conservation Region 1 in New York.
John Ambrose Pendergrass Jr., a distinguished member of the industrial hygiene profession whose career was capped by a stint as administrator of the Occupational Safety and Health Administration, passed away at age 92.
His long career as a public health professional included serving as a biologist, chemist, and industrial hygienist at Tennessee Valley Authority; industrial hygienist for Boeing; corporation industrial hygienist for American Cyanamid; and associate medical director for 3M Corporation.
In 1986, President Reagan appointed him head of OSHA, where he served until 1989. Since then, he was president of Pendergrass Associates. He also served as a member of the American Industrial Hygiene Association Board of Directors beginning in 1967 and became president from 1974-75.
New job? Been promoted? Received an honor? Send in your entries for Movers & Shakers to edmonds@eli.org.
Colleagues’ new jobs, promotions, and achievements.
Artificial Intelligence (AI) is changing how our society operates. AI now helps make judiciary decisions, medical diagnoses, and drives cars. The use of AI in our society also has important environmental implications. AI can help improve resource use, improve energy efficiency, predict extreme weather events, and aid in scientific research. But while AI has the potential to improve human interaction with the environment, AI can also exacerbate existing environmental issues. Some form of governance is needed to ensure that AI is deployed in a manner that is beneficial for our environment.
CAPITOL IDEA ❧ The key to sustainability isn’t to restrict bad practices but to encourage good practices until they take root. We can keep reacting to problems as they emerge, or we can create a culture of responsible resource management that prevents threats from coming to pass.
In response to the growing demand for unbiased answers and analysis on how deregulatory initiatives by the new Administration and Congress will impact environmental protection, governance, and the rule of law, the Environmental Law Institute (ELI) has released Regulatory Reform in the Trump Era. The report explains the legal mechanisms and processes that may get deployed, how they work, and the effect on the current regulatory landscape.
Some threats to the environment, like acid rain and stratospheric ozone depletion, emerged fairly rapidly, and abrupt threats like an oil or toxic chemical spill demand an immediate response. But most environmental problems have the opposite character: they involve slow threats where small, hardly noticeable changes add up over time to produce large impacts.
ELI, Stream Mechanics, and The Nature Conservancy (TNC) have partnered to provide a wide-ranging view of the state of stream compensatory mitigation. This report examines how stream compensatory mitigation has evolved in policy and practice and was based on a series of white papers, which can be found on the State of Stream Compensatory Mitigation page.
Around the globe, nations are creating marine protected areas (MPAs) that prohibit some or all fishing and other potentially harmful activities. MPAs can allow sensitive habitats and ecosystems to prosper in a natural state and can enable recovery of commercial, recreational, and subsistence fisheries, among other benefits. All too often, however, MPAs exist only on paper. These countries may lack strong legal authority to enable enforcement in their MPAs, further limiting their ability to detect and prosecute offenses.
