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Environmental Law Roundtable, Part 2: Navigating an Unsettling Landscape

By Sarah Kellogg

April 10, 2018

Environmental Legal Rxperts

In the second part of this two-part series, environmental legal experts continue their conversation on U.S. environmental law, examining deregulation efforts, the intersection with energy law, the role of private industries, and environmental justice.

The panel of attorneys includes Victoria A. Arroyo, executive director of Georgetown Climate Center at Georgetown University Law Center; Michael D. Goodstein, president and shareholder attorney at Hunsucker Goodstein PC; Carroll Muffett, president and chief executive officer of the Center for International Environmental Law; and Timothy K. Webster, a partner at Sidley Austin LLP and former D.C. Bar president.

Many people look at the Trump administration’s environmental deregulation efforts as a major shift in course for the federal government. What is your view?

Goodstein: I have a long view on deregulation. I served under Presidents Reagan, Bush, and Clinton. There were substantial changes across those administrations in terms of the environment and regulation. But three and a half years and seven years is not that long a time in the grand scheme of the environmental programs. It remains to be seen how many of these changes will be long-term legacy changes versus a little course correction over the next three and a half years, and then we go back in the other direction. I’m not really sure how much of it is going to be a swing one way or another.

Arroyo: The states we work with believe there is a very important role for the federal government in protecting human health and welfare. All of this cannot rest on the shoulders of states that choose to lead because there is a minority of states that have taken this leadership role in the past and can continue it in the future. We need a full federal regulatory scheme and legal protections to allow the states and the federal government to protect public health. Deregulation threatens that very important government responsibility.

Webster: There’s no way to ignore the fact that deregulation is a significant trend in environmental law right now under the Trump administration. The trend can be seen in the administration’s high-level policy statements and, specifically, in the actions of the Environmental Protection Agency and other agencies over the last 12 months. It is a very large effort, and it’s already generated significant results. It will take at least the next three years to play out.

Muffett: One of the things that deeply concern me is that the Trump administration is not only rolling back regulations, it also is eviscerating the institutional capacity to address our environmental challenges over the next decade. It is limiting access to scientific data, slowing the launch of critically needed satellites to monitor climate change, and leaving positions unfilled. We’re entering a period where this country is going to be willfully blind and unable to respond.

There has been a focus recently on the links between energy and the environment. Where are the greatest opportunities or concerns?

Webster: The confluence of energy and environmental law is a serious trend. We are seeing more of a convergence of the two than we ever did in the past. So many steps, for example, in the production of fossil fuels, including exploration, production, transmission, and infrastructure, have impacts on the environment.”

Goodstein: What we’re dealing with in this country is a lot of coal-fired power plants grandfathered under some provisions of the Clean Air Act in the ‘70s. They’ve been in service for many, many years beyond what everyone thought would be their useful life. You have some very marginal coal-fired units in the inventories of the major utilities. They’ve been planning on taking them out of service.

Muffett: We’re working to respond to present realities and recognizing that the science is very clear that climate change is going to continue to get worse. We believe that will have dramatic changes on a rapid time scale in how we power our economy. Those changes are only going to grow more dire in terms of both energy and the environmental policies.

What is your assessment of how private industry is responding to legal concerns arising out of looming environmental threats?

Goodstein: I don’t think you can just talk about corporate America as a monolith. There are a lot of sophisticated managers and policy making that goes on within the private sector, and there’s a lot more enlightenment and proactive sustainability planning and managing, and with that comes environmental protections and preservations. The biggest, most sophisticated companies have spent a lot of time and effort developing their own programs to address climate change, and that is going to continue.

Muffett: There are other threats that have loomed long but are more seriously on the horizon, and [they arise] from how governments and private industry respond to climate change. I think the threat of geoengineering is a serious one and will raise many legal issues. Instead of addressing the climate crisis, people will begin experimenting with technological fixes from changing the radiance of the atmosphere to fertilizing the oceans with iron. These projects carry with them unknowns and potentially very significant risks.

Webster: I think most people have an unfair and poor impression of corporate America and the environment. From my perspective, corporate America is trying to do the right thing when it comes to protecting the environment and is complying with federal, state, and local regulations generally. True bad actors are few and far between. The enormous mountain of regulations is a challenge to manage, however. There are 14 million words in the EPA rules governing industry alone.

Goodstein: What I’ve found interesting is that a number of the industry stakeholders are expressing reluctance to change course dramatically. You see some of the big energy companies holding fast on their courses and their programs to reduce carbon emissions. You may see activism from some of the largest corporations that have studied it and developed programs to address climate change. I don’t think they’ll necessarily retract the resources and actions they’ve taken in response to what the federal government is doing and saying. You’ll have these large community interests as well as private and industry interests aligning potentially with international bodies that are looking for carbon capture and carbon control commitments. You may see the U.S. federal government being a little out of step with the world.

The Flint water crisis is often raised as a primary example of an environmental justice issue, and one that should be addressed in the courts. How serious a concern is environmental justice today?

Goodstein: I think environmental justice continues to be a huge issue, and we need to continue to be very focused on it. These negative impacts of importance are frequently taking place at much higher incidence in the poorer communities, such as the problem with Flint, Michigan’s drinking water. It continues to be the case.

Muffett: One of the emerging threats we’re seeing not only globally but increasingly in the U.S. is the decline in civil society space. It’s increasingly difficult and dangerous to speak out for the environment, the rights of communities, and human rights without being assaulted or murdered in other countries and being legally intimidated in the United States. I mention that in response to environmental justice because it is a very real concern.

Arroyo: I think the concern about equity and vulnerable populations and creating opportunity through investment in clean energy are things the states and cities are thinking quite a lot about. People who really are advancing climate and energy policy are very much aware of the differential impacts on communities of color, low-income communities, and people who live in flood plains. Fortunately, all of this work is happening at the city and state level, if not at the federal level.

If you missed part one of the conversation, read it here

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