Environmental Law Roundtable, Part 1: Navigating an Unsettling Legal Landscape

By Sarah Kellogg

April 4, 2018

Environmental law experts
Environmental law in the United States is at a particularly uneasy moment. The change of U.S. presidential leadership last year, a new global alignment on climate change, and the looming threats from any number of environmental hazards have left the legal landscape unsettled at best and despairing at worst.

Admittedly, much of the flux in U.S. environmental law can be attributed to the Trump administration, which is backed up by a Republican-controlled Congress. Both branches of government are determined to rewrite or eliminate Obama-era and prior environmental policies, regulations, and enforcement. But there are macro trends in the law, public attitudes, and even weather that have been disruptive as well.

“Environmental legal issues are moving out of relative isolation into a very dynamic period where they are being addressed by multiple, overlapping fields of law,” says Carroll Muffett, president and chief executive officer of the Center for International Environmental Law (CIEL). “The environmental issues we’re dealing with are increasingly profound, and we are increasingly recognizing that environmental issues affect human rights, property rights, and they have real financial significance. This is a profound transformation we’ve seen in the last few years, and it’s something I don’t think we’ll be moving back from.”

That’s even more likely with the Trump administration. What the president started in 2017 —federal environmental deregulation, diminishing the federal government’s role in enforcement, and reducing the global environmental leadership of the United States — is expected to continue over the next few years, or at least through the end of Trump’s first term.

In this two-part series, the D.C. Bar asked environmental legal experts to comment on the state of U.S. environmental law. The panel of attorneys included Victoria A. Arroyo, executive director of Georgetown Climate Center at Georgetown University Law Center, where she also is assistant dean for centers and institutes; Michael D. Goodstein, president and shareholder attorney at Hunsucker Goodstein PC; CIEL’s Muffett; and Timothy K. Webster, a partner at Sidley Austin LLP and former D.C. Bar president.

Is there a noticeable trend in terms of environmental law in the United States?

Goodstein: From my perspective in the trenches, the current era is all about cooperative federalism: the relationship between the federal government and the state programs. It’s going to be an adjustment for everyone to see the federal EPA stepping back and being less active and relying on the state programs to pick up the slack. It remains to be seen how all that is going to play out, but it’s definitely a substantial change that’s been announced. As a result of all that, you’re going to see more NGO environmental groups and other advocacy organizations being a lot more active. It’s going to result in a different type of regulatory environment.

Muffett: Even before we saw the change in administration, we’ve seen that we can’t wait for Congress to address the threat of climate change. With both the scale of the change that’s needed and the speed that it’s needed, we have to move forward on multiple legal and policy fronts. Working through political mechanisms alone wasn’t addressing it. More and more actors are moving into this space to seek to leverage the law to accelerate change and address and remedy the harms they’re experiencing.

Webster: There appears to be a significant decrease in criminal and civil enforcement at the federal level, although the statistics can be tricky to interpret. The Obama EPA focused its resources on rule making. Enforcement was a priority, but rule making was a higher priority. Right now, it appears at the federal level enforcement is down even though the administration’s focus is [deregulation]. There’s anticipation that there will be some gap filling by states and environmental advocacy groups. But it’s not clear [if] states are going to have the resources to do any gap filling — if there are gaps, though.

How is federal regulation and enforcement devolving?

Webster: We’re seeing increasing state primacy and federal deference for regulating and enforcing environmental laws as part of the administration’s approach to cooperative federalism. We will still have the federal government at the top of the pyramid when it comes to setting national standards, but there is an effort to step back and let the states really take the lead.

Arroyo: There is definitely a shift in the way environmental legal issues are going to be handled in the future across the key agencies and departments, such as the U.S. Department of the Interior and the Environmental Protection Agency. There also is an extensive rolling back of regulations the last administration had put into place. Some of those efforts are getting a lot of attention, like the Clean Power Plan, and others are flying under the radar. There is an all-out attack on environmental law and enforcement by the Trump administration, and everyone is trying to respond, most notably states and cities.

Goodstein: In terms of climate change, there’s definitely a wave of litigation that’s being filed right now against the major oil and gas companies. You’re seeing states and cities starting to file those cases, particularly in New York and California. Those are interesting cases to watch. The science is further along than it was during prior cases that tried to address these issues. Nonetheless, I think they’re really challenging issues to try and take on for the litigants and the courts to try to grapple with. It’s very policy driven and global.

A number of NGOs have looked at novel ways to litigate climate change and other environmental issues. Have you found that as well?

Muffett: What advocates and legal advocates are recognizing is that their ultimate duties are to the community and the clients they represent, and they will use the legal toolkit that best allows them to fulfill those duties. I think the recognition of the climate threat is driving much more activity and creativity. The Our Children’s Trust case was brought in Oregon as a constitutional climate case, and they have argued that the government violated the constitutional rights of youth and failed to protect public resources.

Goodstein: [What] I’m seeing is more products liability-type claims associated with environmental issues. We’ve had MTBE (methyl tertiary-butyl ether) cases that have been going on under products liability theory. We’re seeing PCB cases filed under products liability theory, and we’re starting to see climate change litigation filed against major oil companies. These cases are looking at what corporate responsibilities are for using and delivering these chemical products into markets, where they ultimately come to be located in the environment, either in the soils or in the waters. It’s looking at what response you have as manufacturer or [as] distributor of these products, which at the time appeared to be legal and safe.

Webster: I think we’re going to see the rise of citizen scientists, and that will have a profound impact on environmental law over the long arc of time. Technology will allow us to do things individually as citizens that were once the responsibility of EPA scientists, such as monitoring air quality for toxic substances. The day is already here where citizens can wander around with small handheld devices attached to their mobile phones, which can monitor air quality all over the city. It’s an important trend, but it’s just not clear what the effect will be just yet.

Arroyo: There is certainly a lot of litigation happening today, and major environmental groups such as the National Resource Defense Council, the Sierra Club, and the Environmental Defense Fund are coming forward. But I think it is the state attorneys general who are playing an even more critical role as they so often have on environmental litigation and protecting the public. The state attorneys general have gone to court to oppose a number of EPA efforts over the last year, and I assume [they] will continue to do so.

Next week, our expert panel continue their conversation on U.S. environmental law, examining deregulation efforts, the intersection with energy law, the role of private industries, and environmental justice.

Sarah Kellogg is a regular contributor to the D.C. Bar.