NOW COMES THE HARD PART: ENVIRONMENTAL ADVOCACY IN THE AGE OF CLIMATE DISRUPTION.
THAT WAS THEN: THE HALCYON DAYS OF ENVIRONMENTAL LAW 78 II. THIS IS NOW: THE CLIMATE CRISIS 82 A. Extreme Heat 83 B. Extreme Drought 85 C. Catastrophic Wildfires 88 D. Biblical Floods 90 E. The Climate Cliff 92 III. NOW FOR SOME GOOD NEWS 94 A. The Inflation Reduction Act: America's New Climate Law 95 B. Regulatory Approaches in the Shadow of the Supreme Court 98 C. Sustainable Finance and Private Governance 101 IV. PREPARING FOR THE LONG ROAD AHEAD: WAYS TO AVOID CLIMATE BURNOUT 105 I. THAT WAS THEN: THE HALCYON DAYS OF ENVIRONMENTAL LAW
The modern environmental movement was launched with great fanfare on Earth Day, April 22, 1970. Earth Day inspired 20 million Americans to take to the streets, parks, and auditoriums to demonstrate against scenes of environmental degradation being broadcast on nightly news programs: the Cuyahoga River bursting into flames; oil washing up on the beaches of Santa Barbara; massive fish kills in Florida's Lake Apopka; and smog blanketing Los Angeles, Denver, Pittsburg, and other major cities. Thousands of colleges and universities organized protests to highlight this widespread environmental degradation with massive coast-to-coast rallies in cities, towns, and communities.
Congress responded to public demand by enacting a plethora of environmental laws in quick succession: The National Environmental Policy Act (NEPA), (1) the Clean Air Act (CAA), (2) the Clean Water Act (CWA), (3) the Safe Drinking Water Act, (4) the Noise Control Act, (5) The Toxic Substances Control Act, (6) the Endangered Species Act (ESA), (7) the Marine Mammal Protection Act, (8) the Surface Mining and Reclamation Act, (9) and others. President Nixon, not known as an environmental crusader, created the Environmental Protection Agency (EPA) by Executive Order and signed more environmental laws than any other president. (10) The 1970s saw a dramatic expansion in the role of the federal government in protection of public health and conservation of natural resources within a top-down, command-and-control regulatory framework.
The passage of the Comprehensive Environmental Response and Recovery Act (11) (otherwise known as CERCLA or Superfund) in 1980 ushered in a decade of new federal laws aimed at the cleanup of contaminated sites and stricter regulation of hazardous waste under the Resource Conservation and Recovery Act (12) and tougher standards to reduce toxic discharges under the Clean Water Act. The disastrous Exxon Valdez oil spill in Prince William Sound Alaska in 1989 led to the enactment of the Oil Pollution Act of 1990, (13) with the creation of a special fund to speed cleanup and expand liability for natural resource damages, among other things. (14)
The year 1990 was a milestone for another reason. It marked the passage of amendments to the CAA that gave us comprehensive new programs using market-based mechanisms (emissions trading) to address acid rain and stratospheric ozone depletion, along with much stronger controls on hazardous air pollutants like mercury and benzene. (15) Except for strengthening amendments to the Toxic Substances Control Act in 2016, the 1990 CAA amendments represent the last time Congress updated the nation's landmark environmental laws, despite the need for reforms to keep pace with scientific discoveries of new threats to public health and ecological integrity.
Of course, passing these laws was just the first step. They also had to be implemented on-time and vigorously enforced. Fortunately, Congress understood the value of public participation in this effort and included provisions requiring public notice of proposed actions, access to information, opportunities to comment on permits and other regulatory actions, and the right to petition agencies for stronger rules. Most importantly, Congress authorized citizen-suit provisions in most of the major laws, starting with the CAA. (16) Citizen suits have proven to be vital to the success of these programs, ensuring that statutory deadlines are met, that federal agencies engage in transparent, rational decision-making, that polluters are not given a free pass, and that frontline communities--already overburdened with air and water pollution--are given a seat at the table when yet another polluting facility is proposed for their backyard.
Throughout the 70s and 80s, the federal courts played a key role in shaping the development of environmental law. As Judge J. Skelly Wright famously said in the seminal Calvert Cliffs decision: "Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy." (17) The courts were, by and large, open to citizens seeking judicial review of questionable agency decisions and injunctive relief to compel compliance with statutory mandates and timelines. The famous Flannery Decree--which led to the adoption of the comprehensive program to regulate toxic discharges under the Clean Water Act--is a good example of federal courts using their equitable powers to enforce statutory requirements for protection of public health. (18)
Over time, the courts have become a less favorable forum for environmental litigants. Led by the late Justice Scalia, the Supreme Court has erected barriers to the courthouse through heightened standing requirements and at times has seemed to display outright hostility to environmental interests. Nowhere is this more apparent than in NEPA's 0 for 17 record in the High Court. (19) The solid 6-3 conservative majority of today's Supreme Court as revealed in the recent decision in West Virginia v. EPA (20) (discussed below) portends less deference to agency authority that is not clearly spelled out in statutory text--a serious problem for dealing with emerging environmental threats that were not foreseen when these laws were first enacted fifty years ago and have not been updated since. The Ninth Circuit's dismissal of the kid's climate case--Juliana u. United States (21)--on the grounds that courts lack any ability to award meaningful relief--not even a declaratory judgment--for the acknowledged danger created by federal policies, dealt a serious blow to climate litigation in federal courts. (22)
Still, looking back over the first fifty plus years of environmental law. one can see notable accomplishments. Water quality has improved through combined federal and state investments in sewage treatment and regulation of industrial point source pollution. Nonpoint source pollution--the runoff from agriculture, forestry, and other activities--which is not regulated by the Clean Water Act, is now the major contributor to water quality impairment. (23)
CAA programs have lowered levels of six common pollutants--particulate matter, ozone, lead, carbon monoxide, nitrogen dioxide and sulfur dioxide--as well as numerous toxic pollutants. (24) Airborne lead pollution, a widespread health concern before EPA phased out lead in motor vehicle gasoline, now meets national air quality standards in most areas of the country. (25) The economic benefits of these improvements greatly exceed their cost. (26) Indeed, as reported in an analysis by Resources for the Future, air quality across the United States has improved substantially, while the Gross Domestic Product has quadrupled since 1970. (27) The benefits of improved air quality have not been equitably shared, and more must be done to address disproportionate impacts on minority and low income "frontline" communities. (28)
There have been many other success stories: recovery of iconic endangered species like the bald eagle and gray whale; rescue of the California condor and black-footed ferret from the brink of extinction and reintroduction of the gray wolf to the Yellowstone ecosystem; conservation of wetlands and barrier islands; designation of hundreds of millions of acres of wilderness, national monuments, and marine sanctuaries; cleanup of over 500 Superfund sites; reduction in toxic wastes, and much more. (29)
There is also much unfinished business: plastics in the ocean; forever chemicals in water supplies; dead zones in lakes and coastal waters; depleted fish stocks; desertification of farmland; and invasive species everywhere. Yet as pressing as these problems are, they pale in comparison with the existential threat posed by global climate change, or more accurately, climate disruption. With each new report from the Intergovernmental Panel on Climate Change (IPCC), the warnings become more dire. In the first installment of its Sixth Assessment, Climate Change 2021: The Physical Basis concluded: "It is indisputable that human activities are causing climate change and human influence is making extreme climate events, including heat waves, heavy rainfall, and droughts, more frequent and severe." (30)
Time is fast running out to slash the greenhouse gas emissions that are cooking the planet with devastating effects including heat waves, melting ice sheets, sea-level rise, extreme droughts, catastrophic wildfires, ocean acidification, biodiversity loss, and much more. And it is not just an environmental disaster. It is a human health and safety disaster as well. The displacement of countless numbers of people forced to leave their homelands to escape the drought and the floods and the fires is, in military parlance, a threat multiplier that exacerbates conflicts and threatens national security.
THIS IS NOW: THE CLIMATE CRISIS
The Chinese phrase for crisis is Weiji, which combines the elements of danger and opportunity. This captures the challenge facing humanity at this moment in time. To understand the nature of this crisis, one must first confront and even embrace the danger it poses. There is a good deal of cognitive literature positing that fear does not motivate people." Doomsday messaging can turn people off or elicit a feeling that the situation is hopeless and there is nothing they can do about it, which...
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